1 2025:CGHC:33034 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1776 of 2022 Ajay Yadav @ Banti Yadav S/o Ful Singh Yadav Aged About 28 Years R/o Village Godpadiya, Police Station Gerwai, District Gwalior (M.P.), At Present R/o Village Ludeg, Police Station Patthalgaon, District Jashpur Chhattisgarh ... Appellant versus State of Chhattisgarh Through - Police Station Patthalgaon, District Jashpur Chhattisgarh. ... Respondent For Appellant : Ms. Sangeeta Kaushik, Advocate appears on behalf of Mr. Bishnu Muni, Advocate For Respondent/State : Mr. Bharat Gulbani, Panel Lawyer. Hon'ble Shri Ramesh Sinha , Chief Justice Order on Board 15.07.2025 1. The report has been submitted by the concerned Station Officer on 14.07.2025, wherein it has been stated that pursuant to the bail granted to the appellant on 06.10.2023, he could not be released initially. Therefore, an application was moved for his release on personal bond, which was allowed by the Co-ordinate Bench on 07.12.2023. After being released, the appellant absconded, and this RAHUL DEWANGAN Digitally signed by RAHUL DEWANGAN 2 Court, on 01.04.2025, issued a bailable warrant for securing his presence, to be executed through the Superintendent of Police. However, despite repeated directions of this Court, the bailable warrant could not be served. Consequently, due to the continuous non-appearance of the appellant, a non-bailable warrant was issued on 16.04.2025, and the appellant was directed to be produced before this Court today. It has been reported that despite searches being conducted at all suspected locations where the appellant was believed to be present, his whereabouts could not be ascertained, and therefore, the non-bailable warrant also could not be executed. In view of the same, and considering that the appeal pertains to the year 2022 and cannot be kept pending indefinitely, the Court proceeds to hear the matter. Ms. Sangeeta Kaushik, Advocate, appearing on behalf of the appellant, holding the brief of Mr. Bishnu Muni, Advocate, is present, and the Court proceeds to hear the case. 2. This criminal appeal is directed against the judgment of conviction and order of sentence dated 05.03.2022 passed by learned Additional Sessions Judge and Special Judge (POCSO Act), Patthalgaon, District Jashpur (C.G.), in Special Criminal Case No. 17/2021 whereby the the appellant has been convicted and sentenced in the following manner: Sentence Conviction Under Section 366-A of the Indian Penal Code. Rigorous Imprisonment for 05 years with fine amount of Rs. 2000/-, in default of payment of fine further RI for 06 month. 3 Under Section 354(B) of the Indian Penal Code. Rigorous Imprisonment for 05 years with fine amount of Rs. 2000/-, in default of payment of fine further RI for 06 month. (Both the sentences will run concurrently) 3. Judgment of conviction is challenged on the ground that without there being any clinching and reliable evidence against the appellant, the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. 4. Case of the prosecution, in brief, is that on 29.09.2021 at around 17:00 hours, a relative of the minor victim approached the concerned Police Station with a complaint alleging that a minor girl, aged about 9 years and studying in Class III, was taken away from school premises by an unknown person to a nearby field. It was alleged that the said person attempted to sexually assault the child and behaved inappropriately. Upon the sudden arrival of a third person at the scene, the accused person fled. 5. Based on the said complaint, a criminal case was registered and investigation was conducted. The present appellant was arrested and charge-sheet has been filed for the offences under Sections 363, 366-A, 376, 511 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012. 6. In order to prove the guilt of the appellant/accused, the prosecution examined as many as 12 witnesses and exhibited the documents. The statement of the appellant under Section 313 of the Code of Criminal Procedure, 1973, was also recorded in which he denied 4 the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. 7. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 2 of the judgment. Hence, this appeal. 8. Learned counsel for the appellant submits that the conviction and sentence awarded to the appellant are unjust and unsustainable in law, as they are based on assumptions and not supported by reliable or conclusive evidence. The impugned judgment is contrary to the facts, legal principles, and evidence on record, and the findings of the learned Trial Court are perverse, arbitrary, and not based on a proper appreciation of material evidence. He further submits that the prosecution has miserably failed to prove its case beyond all reasonable doubt, and the conviction appears to be grounded merely on presumptions. He also submits that the medical report does not support the prosecution’s version, and no internal or external injuries were found on the private parts of the vicitm, which seriously weakens the prosecution’s case. There are material contradictions and omissions in the statements of the prosecution witnesses, further casting doubt on the credibility of the case. The learned trial Court failed to consider these vital aspects and arrived at a finding that is legally flawed. Therefore, the impugned judgment of conviction and sentence (Annexure A- 1) is liable to be set aside. 5 9. On the other hand, learned State Counsel supported the judgment passed by the learned trial Court, in which no interference is called for. 10. I have heard learned counsel for the parties and perused the judgment impugned as also record of the trial Court. 11. In support of its case, the prosecution has relied upon the statements of various prosecution witnesses, including Dr. Shraddha Tirkey (PW-11). 12. Victim (PW-2) deposed against the appellant that she knew and recognized the appellant and identified him by name as Ajay Yadav as he used to reside in a house in village Ludeg. On the date of the incident, at about 9–10 A.M., when she was going on foot from her house to school through the shorter route, just before reaching the school, the accused Ajay Yadav caught hold of her and dragged her towards the bushes. When she screamed calling out “Didi,” he covered her mouth and threatened her saying he would beat her with a stick. He then dragged her into the bushes, removed his underwear, and started removing her clothes. At that very moment, seeing an old man passing by on the road, the accused let her go. Thereafter, as the accused loosened his grip, she ran towards the school and informed the Principal about the incident. Subsequently, the Principal and other staff members chased the accused. When the witness was asked, upon being shown the photographs attached with the case file, did the accused touch her or any part of her body with his hands? the witness replied, the accused caught 6 hold of her and dragged her, but he could not remove her clothes nor did he touch any of her private parts.” Thereafter, from the school, her father was called over the phone, and upon his arrival, she was taken for medical examination where she was examined by a lady doctor. She also gave her statement regarding the incident to the woman police officer. Her statement was also recorded before the court, which is Exhibit P-8. 13. Dr. Shraddha Tirkey (PW-11), who medically examined the victim has deposed in her Court statement that she has been posted as Medical Officer at CHC Pathalgaon from 07.11.2020 till the present date. On 29.09.2021, the victim of Crime No. 217/2021 of Police Station Pathalgaon was produced before her for medical examination along with the requisition report by Woman Constable Seema Paikra of Police Station Pathalgaon. On 29.09.2021, at about 9–10 P.M., the victim was brought before her for examination. As per the statement of the victim recorded by her, she stated that while she was going to school, an adult man caught hold of her hand, dragged her towards the bushes, covered her mouth with his hand, threatened her to remove her clothes, and forcibly held her hands asking her to remove his clothes and to touch his private part. Thereafter, according to the victim, a liquid-like substance came out from the private part of the said adult man, which the victim wiped with her brown-colored frock. At that time, some noise arose at the spot, and a shepherd was passing by. The adult man then wore his trousers and told the victim to go to school. The victim further stated that her clothes were not removed and denied any 7 incident of injury or penetration. The aforesaid incident, as narrated by the victim, occurred on 29.09.2021. Upon examination by her, the victim was found to be conscious, and no external injury was found on her body. On examination of her genital area, no injury was observed. As per the statement of the victim, there were no signs of penetration on her mouth or private parts. She commenced the medical examination of the victim on 29.09.2021 at 10:30 A.M. and completed the examination on 30.09.2021 at 12:55 P.M. The medico-legal examination report prepared by her marked as Exhibit P-27, and the sample examination form attached thereto is Exhibit P-28. 14. Section 354(B) of IPC reads as under :- “Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.” 15. From perusal of the records, it transpires that in the present case, MLC has been conducted by Dr. Shraddha Tirkey (PW-11), who opined that no external injury was found on victim’s body. 16. Considering the statement of the victim recorded before the trial Court and also considering the statement of Dr. Shraddha Tirkey (PW-11), who medically examined the victim, it transpires that the present case does not fall within the purview of Section 354(B) of IPC as there is no evidence lead by the prosecution which could 8 lead to his conviction for the said offence rather the evidence shows that the appellant is accused of committing offence under Section 366-A of IPC and the learned trial Court has committed an error in convicting the accused/appellant for offence under Section 354(B) of IPC. However, considering the evidence available on record, it appears that the trial Court has rightly convicted the appellant for offence under Section 366-A of the IPC. 17. For the foregoing reasons, the criminal appeal is partly allowed. Conviction and sentence of the appellant under Section 354(B) of Indian Penal Code, is hereby set aside. However, his conviction under Section 366-A of the IPC is hereby maintained and he is sentenced to undergo to the period already undergone by him. It is stated that the fine amount as has been awarded by the trial Court has already been deposited. 18. 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). 19. 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/- (Ramesh Sinha) Chief Justice Rahul Dewangan