1 2025:CGHC:4948 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1699 of 2022 1 - Manoj Natt, S/o Salik Natt, Aged About 22 Years, at a time of Incident, R/o Village Padampur, Police Station Jarhagaon, District : Mungeli, Chhattisgarh ... Appellant versus 1 - State of Chhattisgarh Through Station House Officer, Police Station- Jarhagaon, District : Mungeli, Chhattisgarh ... Respondent For Applicant : Mr. Lokesh Kumar Singh, Advocate For Respondent : Ms. Nand Kumari Kashyap, P.L. Hon'ble Smt. Justice Rajani Dubey Judgment on Board 28.01.2025 1. The appellant in this appeal under Section 374(2) of CrPC has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 27.06.2022 passed by Special Judge (FTSC) POCSO Act, Mungeli, District- Mungeli (C.G.) in Sessions Trial No. 33/2019 whereby the appellant stands convicted for 2 the offence under Sections 363, 376 (क)(ख) /511 of the IPC and Section 6/18 and Section 10 of the POCSO Act, 2012 and sentenced to undergo RI for 3 years with fine of Rs.500/- and RI for 10 years with fine of Rs.1500/- respectively, with default stipulations. 2. Case of the prosecution, in brief, is that on 26.07.2019, the father of the victim lodged a report at Police Station- Jarhagaon to the effect that he lives in village Tarkidih and does agricultural work. His daughter/victim studies in class 1. She had gone to answer the nature’s call in the Marghatia next to her house, at the same time, the accused/appellant Manoj Nat came walking from the village side and seeing his daughter/victim, with an intention of doing wrong with her, he picked up his daughter and took her some distance away and with the intention of raping her, he took off her clothes and made her lie down on the ground and was trying to rape on her. Seeing his daughter/victim, he ran in the same condition and pulled the accused/appellant away from his daughter/victim and picked up her and took her in his lap. The people nearby came there and caught the accused and beat him. Thereafter, the matter was informed to the police over the phone. On the basis of report, FIR was registered against the appellant at Police Station- Jarhagaon for the offence under sections 367, 354, 376/511 of IPC and Section 8, 10 of Protection of Children from Sexual Offences Act, 2012. During the investigation, the victim was medically examined. The statement of the victim was recorded by the Magistrate under Section 164 of Cr.P.C. The spot map was prepared. The statements of the victim and the witnesses were recorded. Thereafter, the seizures were made. The accused/appellant was arrested and arrest memo was 3 prepared. After completion of usual investigation, charge-sheet was filed against the appellant for the offence punishable under Sections 367, 354, 376/ 511 of IPC and Section 8 and 10 of POCSO Act before the trial Court and the learned trial Court framed charge under Sections 367, 376/511 of IPC and Section 8 of POCSO Act, 2012 against the accused/appellant, however, on 20.05.2022, the charges so framed by the learned trial Court was amended and, thereafter charges under Sections 367, 376- क, ख /511 of IPC and Section 6/18 of POCSO Act were framed against the appellant to which, he abjured his guilt and prayed for trial. 3. In order to prove its case, the prosecution examined as many as 7 witnesses. Statement of the accused was also recorded under Section 313 of CrPC in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In his defence, the accused/appellant did not adduce any evidence 4. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted the appellant and sentenced him as mentioned in para 1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment of conviction and sentence is bad in law and in facts and thus, liable to be set aside and the appellant deserves to be acquitted. The learned trial Court failed to appreciate the evidence recorded in the case in its true and correct perspective and succumbed to conjectures and surmises in recording the judgment of conviction and sentence against the appellant. The learned trial Court failed to appreciate that the 4 prosecution could not prove the accusation against the appellant beyond all reasonable doubt. A perusal of the whole evidence would indicate that the incident as described by the complainant is highly improbable. Therefore, the impugned judgment is liable to be set aside. Alternatively, he prays that as per statement of victim, offence under Sections 363, 376 (क) (ख) /511 of IPC and Section 6/18 and 10 of POCSO Act, 2012 is not made out and if whole prosecution case is accepted as it is then only offence under Section 354 of IPC is made out against the appellant. Appellant is in jail since 26.07.2019, therefore, he prays that his sentence may be reduced to the period already undergone by him. 6. On the other hand, learned counsel for the State supporting the impugned judgment submits that the learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellant which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed. 7. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. It is clear from the record of learned trial Court that the victim is aged about 7 years. The learned trial Court observed in deposition sheet of victim and also as per the statement of Meghwaram (P.W.-4) who is teacher of Primary School, District Mungeli, the victim was admitted in his school on 28.06.2019 in class 1. As per Dakhil Kharij register (Ex.P/7), the date of birth of the victim is 19.04.2013. 9. In his cross-examination, the father of the prosecutrix (P.W.-3) admitted that it has been 9-10 years since he got married but he did not 5 remember the date of birth of the prosecutrix. However, looking to the observation made by learned trial Court, it is clear that Victim (P.W.-2) was a minor girl on the date of the incident. Hence, prosecution has successfully proved that on the date of the incident, the victim (P.W.-2) was below 10 years of age. Thus, we do not find any illegality or irregularity in the finding so recorded by the learned trial Court holding that the prosecutrix was below 10 years of age at the time of the incident. 10. Victim (P.W.-2) stated that the appellant laid down over her. Her father was coming from the field and he picked her from there. In cross- examination, she admitted that the accused did not commit any wrong act with her. The questions were being asked from the prosecutrix by learned trial Court which are as under:- ्ቚश्न- आप गलत कम किकसक कहत ह समझत ह या नह? उ्ቈर- सቌኍ न कह किक म गलत कम क नह समझत ह। याह कहन सह ह किक आरप अडर वीयार एवी प#ट पहन ह%आ थ, सቌኍ न स्वीत( कहन ह किक आरप न अपन प#ट क उतर कि*या थ। याह कहन सह ह किक आरप न मर पशाब करन क जगह क क. छ नह किकया थ। 11.Learned trial Court has held the appellant guilty of offence under Sections 363, 376(क) (ख) /511 of IPC and Section 6/18 and 10 of POCSO Act, 2012. Sections 6, 8, 9 and 10 of the POCSO Act provide as under:- “6. Punishment for aggravated penetrative sexual assault:- Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. 6 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. 9. Aggravated Sexual Assault.- (a) Whoever, being a police officer, commits sexual assault on a child-- (i) within the limits of the police station or premises where he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) in the course of his duties or otherwise; or (iv) where he is known as, or identified as a police officer; or (b) whoever, being a member of the armed forces or security forces, commits sexual assault on a child-- (i) within the limits of the area to which the person is deployed; or (ii) in any areas under the command of the security or armed forces; or (iii) in the course of his duties or otherwise; or (iv) where he is known or identified as a member of the security or armed forces; or (c) whoever being a public servant commits sexual assault on a child; or (d) whoever being on the management or on the staff of a jail, or remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the time being in force commits sexual assault on a child being inmate of such jail or remand home 7 or protection home or observation home or other place of custody or care and protection; or (e) whoever being on the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital; or (f) whoever being on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution; or (g) whoever commits gang sexual assault on a child. Explanation.-- when a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or (h) whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or (i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or (j) whoever commits sexual assault on a child, which-- (i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (l) of section 2of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or (ii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or 8 (k) whoever, taking advantage of a child’s mental or physical disability, commits sexual assault on the child; or (l) whoever commits sexual assault on the child more than once or repeatedly; or (m) whoever commits sexual assault on a child below twelve years; or (n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child; or (o) whoever, being in the ownership or management or staff, of any institution providing services to the child, commits sexual assault on the child in such institution; or (p) whoever, being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else; or (q) whoever commits sexual assault on a child knowing the child is pregnant; or (r) whoever commits sexual assault on a child and attempts to murder the child; or (s) whoever commits sexual assault on a child in the course of communal or sectarian violence; or (t) whoever commits sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or 9 (u) whoever commits sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated sexual assault. 10. Punishment for aggravated sexual assault:- Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.” 12. As per statement of the victim, it is clear that the accused/appellant laid down over her and she further admitted that the accused/appellant did not do anything to her private part. It is also clear that no medical examination of the prosecutrix was conducted by the lady doctor. Therefore, the prosecution has failed to prove this fact that the act of the accused/appellant is covered under Section 6 of POCSO Act as there is no penetrative sexual assault by the accused on the victim. However, as the victim is below 12 years of age, the act of the accused is covered under Section 10 of POCSO Act. But the learned trial Court did not appreciate this fact and convicted the appellant for the offence under Sections 376 (क) (ख) /511 of IPC and Section 6/18 of POCSO Act, 2012. However, considering the statement of the prosecutrix and evidence of the witnesses, it is clear that the prosecution has utterly failed to prove that the accused/appellant has attempted to commit rape on the victim and thus, considering the act of the accused/appellant, he is liable to be convicted under Section 354 of IPC read with Sections 9/10 of POSCO Act instead of Sections 376 (क) (ख) /511 of IPC and Section 6/18 of POCSO Act, 2012. 10 13. As regards sentence, appellant is in jail since 26.07.2019 and the minimum sentence prescribed under Section 10 of POCSO Act is five years. In these circumstances, this Court is of the opinion that the ends of justice would be served if he is sentenced to the period already undergone by him under Section 10 of the POCSO Act. 14. In the result, the criminal appeal is allowed in part. While acquitting the appellant of the charge under Sections 376 (क) (ख) /511 of IPC and Section 6/18 of POCSO Act and maintaining his conviction under Section 363 of IPC and sentence awarded thereunder, he is convicted under Section 354 of IPC read with Section 9/10 of POSCO Act. He is sentenced to undergo RI for 5 years and pay fine of Rs. 1,000/- with default sentence of 2 months’ simple imprisonment. As the appellant is in jail since 26.07.2019 and thus completed more than the maximum sentence awarded to him, he be set at liberty forthwith, if no longer required in any other criminal case. The fine amount deposited by the appellant shall be adjusted accordingly. 15. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- ( Rajani Dubey) JUDGE Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV