1 2025:CGHC:18004 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1756 of 2017 Sajid Khan S/o Late Shekh Safiq Khan, Aged About 35 Years R/o Atal Avas Pendari, Block No. F - 6 / 20, Police Station Lalbagh, District Rajnandgaon Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Police Of Police Lalbagh, District Rajnandgaon Chhattisgarh. ... Respondent For Appellant : Mr. Gokul Narayan Mishra, Advocate For State/Respondent : Mr. Ajay Kumrani, Panel Lawyer Hon'ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board (21.04.2025) 1. This appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (in short CrPC) has been preferred by the appellant (in jail) being aggrieved by the judgment of conviction and order of sentence dated 05.10.2017 passed by the Court of Additional Session Judge (F.T.C.), Rajnandgaon, District Rajnandgaon Chhattisgarh in Special Session Case No. 51 of 2016, whereby the appellant has been convicted 2 and sentenced as under:- Conviction Sentences Under Section 363 of Indian Penal Code,1860 Rigorous Imprisonment for 05 years and fine amount of Rs. 2,000/-, in default of payment of fine amount additional rigorous imprisonment for 06 month. Under Section 354 of Indian Penal Code, 1860 Rigorous Imprisonment for 01 years and fine amount of Rs. 1,000/-, in default of payment of fine amount additional rigorous imprisonment for 01 month. Under Section 506-II of Indian Penal Code Rigorous Imprisonment for 03 years with fine of Rs. 1,000/- and in default of payment of fine amount additional rigorous imprisonment for 03 months. Under Section 10 of the Protection of Children from Sexual Offences Act, 2012 Rigorous Imprisonment for 05 years with fine of Rs. 2,000/- and in default of payment of fine amount additional rigorous imprisonment for 06 months. All the sentences are directed to run concurrently. 2. Brief facts of the case are such that, on 06.10.2016 the mother of the prosecutrix PW-04 received a phone call from her neighbor Halima Sultan PW-06 at around 13:30 who told her the accused appellant has lured her daughter and took her to his house and tried to outrage her modesty. When the prosecutrix shouted, she along with some other neighbors went to the house of the accused appellant. Upon which the mother of the prosecutrix returned from the work. The prosecutrix narrated the whole incident with her mother, upon which the mother lodged an FIR (Ex. P -06) against the appellant for the offence punishable under Section 363, 354(a) 3 (1) of the Indian Penal Code and Section 08 & 10 of the POCSO Act, 2012. 3. After due investigation and after completion of remaining formal proceedings, charge sheet was filed against the present accused appellant, wherein he was held accused. 4. To prove the guilt of the accused/appellant, the prosecution has examined as many as 12 witnesses. Statements of the appellant under Section 313 of the Cr.P.C. was recorded, wherein accused/appellant has pleaded his innocence and false implication in the matter. After completion of trial, the trial Court convicted and sentenced the appellant as mentioned in para one of this judgment. Hence, this appeal. 5. Learned counsel appearing for the appellant submits that impugned conviction and sentence passed by the learned trial court is invalid, improper, contrary to law and procedure. He contended that the prosecution has failed to prove the age of the prosecutrix below 18 years. Moreover there was no injury found on the vital parts of the body of the prosecutrix in the medical examination. Also there is a delay in lodging the FIR, which vitiates the case of the prosecution and no explanation, has been offered by the prosecution in this context. Hence he pleads to set aside the judgment of conviction and sentence 4 dated 05.10.2017 in Special Session Case No. 51 of 2016 and acquit the appellant from all the charges leveled against him in the interest of justice. 6. Per contra, learned counsel appearing for the State/respondent opposes the argument raised by counsel for the appellant and supported the impugned judgment passed by the Trial Court. He stated that after due diligence and consideration the trial court has convicted the present appellant under the said sections. Prosecution has undoubtedly proved their case beyond reasonable doubt. Hence interference to the judgment so passed by the concerned trial court would largely affect the justice of the victim. 7. I have heard learned counsel appearing on behalf of the parties and perused entire evidence adduced by the complainant and gone through the evidence available on record with utmost circumspection. 8. Whenever the conviction is under the POCSO Act, proving the age of the victim is of utmost importance. And in order to prove the age of the victim, statements of the examined witnesses relating to the age of the witnesses and the documentary evidences are to be seen. 5 9. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under : “94. Presumption and determination of age- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with inquiry under section 14 or section 36, as the case may be,without waiting for further confirmation of the age. (2). In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake process of age determination, by seeking evidence by obtaining- (i) The date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) The birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the above, age shall be determined by an ossification test or any other latest medical age determination test conduct on the orders of the Committee or the Board: Provided such age determination test conducted on the order the Committee or the Board shall be completed within fifteen days from the date of such order. 6 (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 10. In order to consider the age of prosecutrix, this Court has to examine the evidence/material placed on record by the prosecution. The mother of victim PW-04 has stated in her deposition that her daughter/prosecutrix is about 10 years old at the time of incident and to substantiate this fact she has produced the birth certificate of the prosecutrix (Ex. P-03) in which the date of birth of the prosecutrix has been reflected as 13.11.2006. The said birth certificate has been issued by the Chhattisgarh Government’s Registration Department of Birth and Death. The said age of the victim has not been challenged by the accused appellant. Accordingly, the age of the victim was approximately 09 years and 10 months at the time of incident. 11. From the perusal of the statements of the mother as and after considering the evidence collected by the prosecution, I find that there are clinching and legally admissible evidence has been brought by the prosecution 7 to prove the fact that the prosecutrix was minor and less than 12 years of age on the date of incident. Accordingly, this Court finds it inappropriate to set aside the findings given by the trial Court that on the date of incident, the victim was minor and below 12 years of age. Prosecution has proved that the prosecutrix was below 12 years beyond reasonable doubt. 12. Now the next question that arises out of the said incident that whether the appellant has performed aggravated sexual assault with the prosecutrix or not? Section 7 of the POCSO Act, 2012 states that whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. However whoever commits sexual assault on the child below twelve years falls under Section 9 (m) of the POCSO Act, 2012 which is called as aggravated sexual assault. 8 13. PW-04 mother of the victim in her deposition has deposed that she received a phone call of her neighbor Sultana, who told her that her daughter has been sexually harassed. Upon which she returned home and thereafter the prosecutrix told her about the incident which took place. Her daughter told her that the appellant tried to harassed her sexually by pressing her chest. Then she lodged an FIR against the appellant in the Police Station. 14. PW-05/prosecutrix in her deposition deposed that, she knows the appellant and on the date of incident, the appellant took her to his home and made her sit on his lap and tried to press her chest. Upon which she shouted and on hearing her voice Halima Sultana, Geeta and Urmila came at the spot. They left her at her home and told about the incident to other neighbors. 15. PW-02 Geeta Yadav in her deposition stated that on hearing the voice of the prosecutrix she along with Halima Sultana and Urmila Singh went to see the prosecutrix in the home of the accused appellant as the voice came from 9 his home. When they reached there, they saw the prosecutrix was crying and on asking her, she told that the accused appellant was trying to grab her inappropriately. 16. The deposition of the PW-02 Geeta Yadav has been supported by PW-03 Urmila Singh and PW-06 Halima Sultana who all reached at the spot after hearing the voice of the prosecutrix. 17. PW-01 Dr. Sanjay Meshram who examined the prosecutrix (Ex. P-01) has stated that there was no external and internal injury found on the body of the victim. As the victim has herself stated that the accused appellant tried to touch her inappropriately in her upper body, which clearly reflects that there will be no injury caused to the prosecutrix. Hence the medical examination of the prosecutrix is of no use in order to verify if the prosecutrix was actually harassed by the appellant sexually or not. 18. On bare perusal of the evidences placed on record as well as the depositions of the witnessed, this court finds 10 that the age of the victim at the time of incident was only 10 years approximately, and the appellant has committed aggravated sexual assault with the prosecutrix which she informed about the same to the witnesses and her mother. There is no substantial contradiction or omission found in the statement of the prosecutrix. The statement of the prosecutrix has inspired confidence and the prosecution has produced clinching evidence in this regard that the appellant has committed aggravated sexual assault with the prosecutrix. Hence this court is of the considered opinion that the appellant committed aggravated sexual assault by grabbing her chest and when the incident took place she was only 10 years old, therefore, as per section 9(m) of the POCSO Act, 2012 it is an aggravated sexual assault and the punishment for aggravated sexual assault provided under Section 10 of the POCSO, Act is minimum sentence period of 5 years. Therefore, the conviction and sentence of the appellant has been rightly held by the learned trial court. The conviction and sentence of the appellant by the learned trial court cannot be said to be 11 perverse, illegal or contrary to the law. The present appeal deserves to be and is hereby dismissed. 19. Consequently, the appeal is dismissed . The conviction of the appellant under the aforementioned sections is affirmed. sd/- (Arvind Kumar Verma) Judge alfiza