1 CRA No. 138 of 2016 2025:CGHC:23083 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 138 of 2016 1 - Rohit Kumar Upadhyay S/o Shobharam Upadhyay Aged About 34 Years R/o Village Gobri, P.S. Masturi, Chowki Pachpedi, At Present Village Gobri, P.S. Kota, Hariram Gandharva Ke Makan Me, P.S. Kota, District Bilaspur, Chhattisgarh., Chhattisgarh ... Appellant versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station Kota, District Bilaspur, Chhattisgarh., Chhattisgarh Respondent(s) (Cause-title taken from the Case Information System) For Appellant(s) : Mr. Vikas Pandey, Advocate For Respondent(s) : Mr. R.C.S. Deo, PL Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 11/06/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.06.13 10:44:35 +0530 2 CRA No. 138 of 2016 29/12/2015 passed in Special Sessions Trial No. 72/2013 by the learned Additional Sessions Judge (F.T.C.), Bilaspur (C.G.), whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 354 of the IPC Rigorous imprisonment for 02 years with fine of Rs.1,000/- with default stipulation. U/s 354A of the IPC Rigorous imprisonment for 06 months with fine of Rs.500/- with default stipulation. Both the sentences were directed to run concurrently. 2. Case of the prosecution in brief is that the Prosecutrix appeared in Kota police station and submitted a written report to the effect that Rohit Upadhyay (the accused/appellant) who is from outside, has been living in the house of her village Kotwar for one year and claims to be a Tantrik. The Prosecutrix was studying in class 9th, the accused has bad intentions towards her. He took her to Pateta by luring her with his words and molested her. When she refused, he applied something on her head, since then she started obeying him. He asks her to marry him many times. When she refused, he threatened that he will not let her get married. She told this to her father and mother. On 28/09/2013 (sic 28/09/2014), when she was going to learn sewing, she met the accused near the pool and he molested her and hugged her by holding her hand, 3 CRA No. 138 of 2016 when she protested, he threatened her. Regarding this, her brother Sunny Kashyap called the accused to reveal the above matter, but he threatened his brother that he will ruin her life. The accused had given her a mobile phone and used to harass her by talking obscenely on it. Accused also pelted stones at her house from time to time and has bad intentions towards her. On the basis of the written report of the Prosecutrix, a case was registered against the accused under section 354 of the Indian Penal Code and section 7 & 8 of the Protection of Children from Sexual Offences Act, 2012 (henceforth ‘the POCSO Act, 2012’) by the Kota Police Station and the case was taken up for investigation. 3. During investigation, Spot Map (Ex.P/4) was prepared. Statement of the Prosecutrix and witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court. 4. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. 5. In order to bring home the offence, the prosecution has examined 11 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 29/12/2015 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. 4 CRA No. 138 of 2016 Hence, this appeal. 7. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that the medical report is not supported the version of the prosecution. In the statements of the witnesses, it can be seen that there are material contradiction and omissions. Learned counsel would submit that there is love affair between the Prosecutrix and the appellant. According to the learned counsel the incident took place on 28/09/2013 whereas the FIR was lodged on 05/10/2013, without offering plausible cause of delay. Therefore, the conviction of the appellant is bad in the eyes of law. 8. Learned Panel Lawyer appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. 9. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. The prosecutrix has been examined as PW/1. The mother of the Prosecutrix has been examined as PW/2 whereas her father has been examined as PW/3. The Brother of the Prosecutrix has been examined as PW/7. 11. The prosecutrix has deposed in her statement that a mobile phone was given by the appellant through a lady. She in her cross-examination at para 6 has stated that she has concealed the information regarding the 5 CRA No. 138 of 2016 mobile phone with her parents. At para 7 she categorically stated that if her family members have not seen the said mobile phone, the report would not have been lodged. The parents of the Prosecutrix have not supported the case of the prosecution. From the evidence, it is apparent that the mobile phone was provided by the accused to the Prosecutrix and through which they used to talk with each other. 12. Mother (PW2) of the Prosecutrix in her deposition has admitted the fact that the appellant had given a mobile phone to the Prosecutrix and she had kept it hidden. She admitted in her cross-examination that when the appellant used to take the prosecutrix for roaming, they used to deny him. She admitted that they used to go for roaming without informing to any one. 13. Father (PW3) of the Prosecutrix in his deposition has admitted the fact that the appellant had given a mobile phone to the Prosecutrix. When the phone was seen by his son, then the Prosecutrix disclosed that the same was given by the Appellant. He admitted the fact that if the mobile phone did not recover from the prosecutrix then they would not have lodged the report. 14. From bare perusal of the entire record and material available on record it is evident that the Prosecutrix and the accused were in love affair and the Prosecutrix on her sweet will used to talk and met with the appellant time to time and she has never disclosed about the alleged molestation committed by the appellant with her. Thus, the act of the Prosecutrix 6 CRA No. 138 of 2016 does not inspire the confidence of this Court towards the guilt of the appellant because of the material contradictions in the statement. 15. For the foregoing reasons, the prosecution has not proved that the appellant had committed the alleged crime by using criminal force, rather it appears that there was an affair between them. Therefore, I am of the view that the appellant is entitled to be acquitted. 16. The accused is acquitted of the charges for which he was tried. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal appeal is allowed. 17. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) Judge $ Bhilwar / Gowri