1 2025:CGHC:16599 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 484 of 2016 Sushant Mistri S/o Surendra Nath Mistri Aged About 27 Years R/o P.V. 11 Krishna Nagar P.S. Pakhanjur, Rev. And Civil Distt. North Bastar Kanker Chhattisgarh. , Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Pakhanjur, District North Bastar Kanker Chhattisgarh. , Chhattisgarh ... Respondent For Appellant : Mr. Vivek Kumar Gupta, Advocate appears on behalf of Mr. Pravin Kumar Tulysan, Advocate For State/Respondent : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 08.04.2025 1. This appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred by the appellant being aggrieved by the judgment of conviction and order of sentence dated 31.03.2016 passed by the Additional Special Judge, Bhanupratappur, District North Bastar Kanker, in Special Session Case No. 98 of 2015, whereby the appellant has 2 been convicted under Section 354 of Indian Penal Code read with under Section 7 and 8 of the Protection of Children from Sexual Offence act, 2012 and sentenced rigorous imprisonment for 04 years with fine of Rs. 5,000/- failing which further rigorous imprisonment for 06 months. 2. In this case, complainant along with her parents lodged a report against the appellant stating that on 03.07.2014 at about 3:30 PM when the prosecutrix was going to her home after attending the school , the appellant offered her a lift. But instead of dropping her at her home the appellant took a turn towards another village and used the forced to outrage her modesty. Upon which the prosecutrix ran away from the spot and after coming to her home narrated everything to her parents. Thereafter along with her parents they came at police station and lodged the FIR against the present appellant. Investigation started and after due investigation charge sheet was filed before the trial court. 3. To prove the guilt of the accused/appellants, the prosecution has examined as many as 08 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 appellants as mentioned in 3 para one of this judgment. Hence, this appeal. 4. Learned counsel appearing for the appellant submits that the impugned judgment dated 31.03.2016 is bad in law, perverse and is liable to be set aside as in the instant case no eyewitness has been examined. The age of the prosecutrix has not been proved by the prosecution. He is facing lis from last 11 years, therefore, it is prayed that the appellant may be acquitted from all the charges leveled against them by allowing the present criminal appeal in the interest of justice. 5. 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. 6. 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. 7. 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 : 4 “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). (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. (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. 8. In order to consider the age of prosecutrix, this Court has to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the Dakhil Kharij Register (Ex. P-03) wherein the date of birth of prosecutrix is mentioned as 20.06.1999. The date of birth as 5 mentioned in the Dakhil Kharij Register has been registered on the basis of transfer certificate and also no Kotwari Register has been produced. Even the ossification test of the prosecutrix has not been done. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix. School admission and discharge register is a weak type of evidence. There is no any kotwari register or ossification report, produced by the prosecution to determine her actual age on the date of incident, that she was below 18 years of age. 9. From the perusal of the statements of prosecutrix , her father as well as other prosecution witnesses and after considering the evidence collected by the prosecution, I find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the prosecutrix was minor and less than 18 years of age on the 6 date of incident, despite the fact that the Trial Court in the impugned judgment has held the prosecutrix minor. Accordingly, this Court finds it appropriate to set aside the findings given by the trial Court that on the date of incident, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching evidence. 10. Therefore, the conviction of the appellant under Section 6 and 7 of the POCSO Act, 2012 stands set aside as the age of the victim/prosecutrix has not been determined. Hence in this circumstances this court finds that the appellant would not be liable to be convicted under section 6 and 7 of the POCSO Act, 2012 as the age of the victim has not been duly proved by the prosecutrix. 11. PW-04/prosecutrix in her deposition specifically mentioned the incident happened with her in a detailed manner by stating that on the day of incident that is 07.07.2014 she was returning with one Amresh on his bicycle. Amresh dropped him near Kali Mandir after which she was waiting for some accommodation. At the relevant point of time the accused appellant came and offered her a lift, upon which she 7 accepted and stated to drop her near Shani Mandir. The accused appellant was accommodating other people, so he stated that after dropping them he will drop her too at the place she stated. Thereafter she stated that he stopped the bike at Markam para and grabbed her hand upon which she resisted and said what are you doing. The accused appellant in reply said that he is doing what he must have done before. Thereafter he started touching her inappropriately and tried to remove her clothes. The prosecurtix screamed. Her school belt was removed by the accused/appellant. 12. However, with regard to offence under Section 354 of Indian Penal Code, considering the statements of complainant PW- 04 prosecutrix, it is crystal clear that the appellant on the pretext of dropping her at her home gave her lift on his motorcycle and later on took turn towards some other village where he tried to outrage the modesty of her, thus, the trial Court has rightly convicted the appellant for the offence punishable under Section 354 of Indian Penal Code. 13. So far the sentence part is concerned. Considering the facts and circumstances of the case, particularly the appellant is facing lis from last 11 years, he has undergone 1 year 8 months and 5 days in this case, I am of the view that the end of justice would be met if, while upholding the conviction 8 imposed upon the appellant, the jail sentence awarded to them is reduced to the period already undergone by them. Fine amount will remain intact i.e. Rs. 5000/-. 14. Consequently, the appeal is partly allowed. The conviction of the appellant under Section 354 of the IPC is affirmed and against the conviction he is sentenced to the period already undergone by him. 15. It is reported that the appellant is on bail. His bail bonds is not discharged at this stage and the same shall remain operative for a further period of six months in light of Section 437-A of the Cr.P.C. 16. Records of the trial court be sent back along with a copy of this order forthwith for information and necessary compliance. sd/- (Arvind Kumar Verma) Judge alfiza