1 2025:CGHC:33836 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1347 of 2022 Shatruhan Suryawanshi S/o. Amar Suryawanshi, Aged About 32 Years R/o. Atal Awas, Lata, Police Station Darri, District Korba Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh Through Station House Officer, Police Station Darri, District, Korba Chhattisgarh. ... Respondent(s) For Appellant(s) : Mr. Dhaneshwar Yadav, Advocate. For Respondent(s) : Mr. Bharat Gulbani, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Judgment on Board 17/07/2025 1. Heard Mr. Dhaneshwar Yadav, learned counsel for the appellant. Also heard Mr. Bharat Gulbani, learned Panel Lawyer appearing for the respondent/State. 2. Learned counsel for the appellant submits that the appellant is present before this Court today pursuant to the order passed by this Court on 03.07.2025 and he identifies the appellant. 3. This criminal appeal filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) KUNAL DEWANGAN Digitally signed by KUNAL DEWANGAN 2 is directed against the impugned judgment of conviction and order of sentence dated 23.07.2022 passed by the Additional Sessions Judge, F.T.S.C. (POCSO)– (Protection of Children from Sexual Offences Act, 2012) Katghora, District – Korba (C.G.) in Special Case No. 15/2021, (State of Chhattisgarh Vs. Shatruhan Suryawanshi) whereby the appellant/accused has been convicted and sentenced in the following manner. CONVICTION SENTENCE Under Section 354 of Indian Penal Code and Section 8 of Protection of Children from Sexual Offences Act, 2012. Rigorous Imprisonment for 03 years with fine of Rs.1,000/-, in default of payment of fine additional R.I. for 03 months. 4. Case of the prosecution, in brief, is that on 04.02.2021, the complainant appeared at the police station and lodged a report stating that on 03.02.2021, at around 6:00 PM, her daughter (the victim) was returning home after finishing her work of babysitting at NTPC Colony. When she reached near the forest area in front of Atal Awas, the accused, Shatrughan Suryavanshi, who was under the influence of alcohol, confronted her. He caught hold of her hand and waist with an intent to commit an indecent act, tried to drag her towards the forest. When the victim screamed for help, the accused fled the scene. The victim returned home crying and narrated the incident to her mother and maternal uncle. Thereafter, based on the report lodged by the complainant, the matter was taken up for investigation. 3 5. During the course of investigation, upon finding sufficient evidence against the accused, he was formally arrested and sent to judicial custody. After completion of investigation, charge-sheet was filed before the competent Court. 6. Prima facie case under Section 354 of the Indian Penal Code and Section 08 of the Protection of Children from Sexual Offences (POCSO) Act was found against the accused. The charges were read over and explained to him, to which he pleaded not guilty and claimed to be tried. During his examination under Section 313 of the Code of Criminal Procedure, the accused stated that he is innocent and has been falsely implicated. 7. Prosecution in order to prove its case examined as many as 06 witnesses and exhibited 11 documents i.e. Exs. P-1 to P-11, the accused has examined one witness namely Parmila Suryavanshi, who is his wife in his defence. 8. The learned Additional Sessions Judge, F.T.S.C. (POCSO)– (Protection of Children from Sexual Offences Act, 2012) Katghora, District – Korba (C.G.) after appreciating oral and documentary evidence available on record vide impugned judgment dated 23.07.2022 convicted and sentenced the appellant as mentioned in opening paragraph of this order. Feeling aggrieved by the said judgment, the instant appeal under Section 374(2) of CrPC has been filed by the appellant. 9. Learned counsel for appellant would submit that the learned trial Court has committed gross mistake and illegality in convicting the 4 appellant which too for three years R.I. It is a clear abuse of the process of law. He further submits that the learned trial Court further ignored the fact that on 3/02/2021, the wife of accused/appellant Smt. Parmila Suryawanshi (DW-1) went to Police Station Darri to lodge report against victim and her mother when both of them assaulted Parmila, using obscene language addressing her "TONHI", then Darri Police refused to lodge FIR, then on next day she lodge report against victim and her mother at AJAK Police Station. He submits that the applicant has already served out 8 months of jail sentence out of 03 years, hence his conviction be altered/modified and he be sentenced to the period already undergone by him. 10. On the other hand, learned State Counsel opposing the prayer of learned counsel for appellant, would submit that looking to the allegations levelled and conduct of the appellant, leniency should not be shown to appellant. 11. I have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 12. The learned trial Court has convicted the appellant under Section 354 and Section 8 of the POCSO Act and sentenced him to undergo for offence under Section 8 of POCSO Act, RI for 03 years and to pay fine of Rs.1,000/-, in default of payment of fine, additional RI for three months. 13. The most important witness of the incident, the victim (PW-1) has stated in her main examination that she recognize the accused 5 present in the Court. He is her neighbor and she is currently studying in Class 8 and her date of birth is 27.12.2004. She work as a babysitter at a lady’s house in SADA Colony, where she go every morning at 8:00 AM and return home around 5:00 to 6:00 PM in the evening. She further deposed that the incident took place approximately two months ago. On that day, She was returning home around 5:00–6:00 PM after finishing her babysitting work, when the accused, who was under the influence of alcohol, followed her near Atal Awas, Shyam Nagar. He stopped his vehicle near her and said, “Will she come with him to sleep?” She started crying, and then he caught her left hand and tried to drag her towards the nearby forest. Somehow, she managed to free herself and ran home. At that time, no one was at home. Soon after, her maternal uncle (mausa ji) arrived near her house and she narrated the entire incident to him. Thereafter, she went with her uncle to the accused’s house and told his wife about what had happened. When they informed the accused’s wife, she accused us of lying and said, “Her husband cannot do such a thing. She will trap her in a case of black magic.” After that, she went with her maternal uncle to the Darri Police Station and lodged a report. 14. Apart from this, in cross-examination, she stated that the accused has been residing in her neighborhood for several years. He has three children who also live with him. It is true that his children often play with us. She also know the accused’s wife, Parmila. She is familiar with Poonam, Nirjala, and Janson, they are also her neighbors. It is incorrect to say that on 03.02.2021 at around 7:30 6 PM, she entered the house of the accused along with her mother, Poonam, and Nirjala, and pulled Parmila’s hair or physically assaulted her with fists. It is also false to suggest that accused’s wife Parmila of being a witch (tonhi) and practicing black magic, and that Uttara Soni and Kamni Suryavanshi intervened during the incident. It is incorrect to say that they were performing witchcraft or assaulting her, and that Uttara Soni, Kamni Suryavanshi, and Maryam Kushwaha came and drove them out of their house. She is unaware of whether Paramila and her husband (the accused) went to Darri Police Station that same night to lodge a report regarding the incident. It is true that some residents of the neighborhood, including herself, used to taunt her by calling her tonhi (witch). The witness voluntarily states that people in the locality also fill water from the hand pump near her house. However, it is incorrect to say that no one talks to Parmila when she comes to fetch water. It is true that there are other children in the neighborhood of her age. It is also true that there is both an English and a country liquor shop next to her house. People from Atal Awas, SADA Colony, and Shyam Nagar pass by her house to reach the liquor shops. However, it is incorrect to state that people drink alcohol in front of the liquor shops. On the date of the incident, her friend came to drop her off on a bicycle. She lives in Jailbasti. On that day, she picked her up near the petrol pump close to NTPC and dropped her at her house. There are houses on both sides of the road between the petrol pump and her home. It is true that the road from the petrol pump to her house is usually busy with regular movement of people. It is also 7 true that street lights were on at the time of the incident. It is incorrect to say that the report was not lodged by her, but by her mother. She voluntarily state that she had gone to lodge the report with her maternal uncle (mausa). It is incorrect to say that she did not lodge the report on the date of the incident. It is also incorrect to state that her mother filed the report on the next day. It is false that they filed a false case against the accused to counter the complaint made by Parmila against them. It is also incorrect to say that the accused did not caught hold of her.. 15. (PW-2) who is mother of victim, has stated in her main examination that she recognize the accused present in the court. He resides in her neighborhood. The victim is her daughter. The incident occurred about four months ago and the victim told her that she had gone to babysit at the house of a police officer in NTPC Colony. While she was returning home around 5:30 PM, the accused, who was intoxicated, approached her near a forested area and said, “Come with him to sleep.” He then caught her by the hand and waist and tried to drag her. The victim began to scream, after which the accused let go and she ran towards home. After returning home, the victim informed her mausa about the incident. Later, he took her to the police station. She did not file the report herself; the victim lodged the report. The police later came to her house and took her thumb impression on the First Information Report (Exhibit P-01). The police along with a patwari came to the scene of the incident and prepared a spot map, which was prepared by the police and is marked as Exhibit P-02. The victim at the time of incident 16 years 8 old. She does not remember her exact date of birth. The police questioned her regarding the incident. 16. (PW-4) who is maternal uncle of the victim (mausa), has stated in his main examination that he recognize the accused. The victim is the daughter of his wife’s elder sister. The victim used to work in the SADA housing area of NTPC. Around 2 to 3 months ago, she came to him in the evening around 6:30 PM and said she needed to go to the police station. He accompanied her to the station. He does not know what happened at the police station. He has no knowledge about the incident in question. The police did not question him regarding the matter. 17. The prosecution has not examined the father of the victim, however, from the statements made during the chief examination of B. Beck (Prosecution Witness No. 03), a teacher at Primary School Agarkhar, it is clearly evident that she has been posted at the said school since 1988 and it was she who made the entry of the victim’s date of birth at the time of her admission. The date of birth recorded was based on the information provided by the victim’s parents. In her cross-examination, the defence has not made any suggestion that the parents of the victim provided an incorrect date of birth or deliberately reduced or altered it while getting it recorded in the school register. In such circumstances, where there is no conclusive evidence suggesting that any manipulation was done in recording the date of birth at the time of the victim’s admission to Class I, there is no reason to disbelieve the date of birth entered in the admission register, i.e., 27.12.2004, or to treat it as incorrect. 9 18. Section 8 of the POCSO Act reads as under :- “8. Punishment for sexual assault.—Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.” 19. From perusal of the records, it transpires that in the present case, MLC of the victim was not done by the prosecution and no FSL report is there. 20. Considering the statement of the victim recorded before the trial Court and also considering the victim’s mother statement and her maternal uncle statement, it transpires that the present case does not fall within the purview of Section 8 of the POCSO Act as there is no evidence lead by the prosecution which could lead to his conviction for the said offence rather the evidence shows that the appellant is accused of committing offence under Section 354 of IPC and the learned trial Court has committed grave illegality in convicting the accused/appellant for offence under Section 8 of the POCSO Act. However, considering the evidence available on record, it appears that the trial Court has rightly convicted the appellant for offence under Section 354 of the IPC. 21. For the foregoing reasons, the criminal appeal is partly allowed. Conviction and sentence of the appellant under Section 8 of the Protection of Children from Sexual Offences Act, 2012, is hereby set aside. However, his conviction under Section 354 of the IPC is hereby maintained, however, he is sentenced to the period already undergone by him. It is report that the fine amount has already been 10 deposited as has been awarded by the learned trial Court. 22. The appellant is reported to be on bail. However, his bail bonds are not discharged at this stage and shall remain operative for a further period of six months in view of Section 437-A of the Cr.P.C. (481 of Bhartiya Nagrik Suraksha Sanhita (BNSS). 23. Registrar (Judicial) is directed to transmit the original record to the concerned trial Court within a week from today for necessary information and follow up action. Sd/- Sd/- (Ramesh Sinha) Chief Justice Kunal