1 2025:CGHC:20034 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2038 of 2024 Xyz Nil ... Appellant versus State Of Chhattisgarh Through Station House Officer Police Station- Balconagar, District- Korba, Chhattisgarh. ---- Respondent (Cause title taken from Case Information System) For Appellant : Mr. Krishna Tandon, Advocate For Respondent/State : Mr. Karan Kumar Baharani, Panel Lawyer Hon'ble Shri R avindra Kumar Agrawal, Judge Judgement on Board 01/05/2025 1. The present appeal under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short ‘BNSS') has been filed by the appellant against impugned judgement of conviction and sentence dated 12.09.2024, passed by learned Additional Sessions Judge, FTSC (POCSO), Korba, in Special Case (POCSO) No. 9 of 2024, whereby the appellant has been convicted and sentenced as under:- VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.05.31 11:33:29 +0530 2 Conviction Sentence U/s. 323 of IPC R.I. for 01 year and fine of Rs. 1000/-, in default of payment of fine further R.I. for 03 months. U/s. 354 of IPC R.I. for 05 years and fine of Rs. 2000/-, in default of payment of fine further R.I. for 06 months. U/s. 10 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) R.I. for 07 years and fine of Rs. 2000/-, in default of payment of fine further R.I. for 06 months. All the sentences are directed to be run concurrently 2. The brief facts of the case are that on 09.03.2024, the victim No. 1 (PW-1) lodged a written complaint (exhibit P-1) to the police with the allegation that she along with her sister and brother residing with the appellant and her mother has died on 05.08.2019. After death of her mother, the appellant tried to outrage her and her sister’s modesty and when they protested, he beaten them by hand and fist and abused them. On 08.03.2024, at about 1:00 PM also, when she along with her sister were in house, their father again tried to outrage their modesty and then she lodged the report on 09.03.2024. On the basis of the written complaint, the FIR (exhibit P-2) was registered against the appellant for the offence under Sections 294, 323 and 354 of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’). The victims were sent for their medical examination to Govt. Medical College, Korba, where they have been medically examined and their MLC report (exhibit P-10 and P-11) were obtained. According to the MLC report (exhibit P-10), the victim No.1 3 was having linear abrasion on right forearm, which is simple in nature, whereas the victim No.2 was complaining pain on right occipital region and left wrist, which are simple in nature. With respect to the age and date of birth of the victims, the police have seized the school register from St. Thomas English Medium School, Balco Nagar vide seizure memo (exhibit P-8) and after retaining its attested true copy (exhibit P- 9C), the original register was returned back to the school. Spot map (exhibit P-12) was prepared by the police and exhibit P-3 was prepared by the Patwari. The appellant was arrested on 09.03.2024. Statement of the victims and other witnesses under Section 161 of CRPC and Statement of the victims under Section 164 of CRPC have been recorded. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Sections 294, 323 and 354 of IPC and Section 8 of POCSO Act before the learned trial Court. 3. The learned trial Court has framed charge against the appellant for the offence under Sections 294, 323 and 354 of IPC and Section 9(m)/10 of POCSO Act. The appellant denied the charge and claimed the trial. 4. In order to prove the charge against the appellant, the prosecution has examined as many as 05 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances, plead innocence and has submitted that he has been falsely implicated in the offence. 4 5. After appreciation of oral as well as documentary evidence, led by the prosecution, the learned trial Court has acquitted the appellant from the offence of Section 294 of IPC, but has convicted and sentenced the appellant as mentioned in the earlier part of the judgment, hence this appeal. 6. Learned counsel for the appellant would submit that the impugned judgment of conviction and sentence passed against the appellant is illegal and erroneous. There is no cogent and clinching evidence to convict him for the alleged offence. There is no legally admissible evidence with respect to the age of the victims that they were minor on the date of incident. The school records have not been proved in accordance with law. The victims are his daughters and they suspected that after death of their mother, the appellant is having relation with another lady and they apprehended that the appellant will marry with her and left them in starvation. They created pressure upon the appellant to give his income to them. The victims are having their boyfriends, which came into knowledge of the appellant and when he objected, they lodged a false report against him. The evidence of the victims has not been supported by any independent witness and their evidence and allegation leveled against the appellant are unbelievable. There are material omissions and contradictions in the evidence of prosecution witnesses and therefore, the same cannot be made basis to convict him for the alleged offence. In absence of any cogent and clinching evidence against the appellant, he is entitled for acquittal. 5 7. Per contra, learned counsel appearing for the State opposes and has submitted that from the evidence produced by the prosecution, the guilt of the appellant has duly been proved. The evidence of the victims itself are sufficient to hold conviction of the appellant in the offence in question, otherwise, there is no reason for his false implication. The appellant was having evil eye on his minor daughters i.e. the victims and outraged their modesty and when the situation became unbearable, they lodged the report. But for minor omissions or contradictions, their evidence are consistent and speaks about guilt of the appellant. The victims are minor on the date of incident, which have been provided by the school register (exhibit P-9C), which is proved by PW-3/Headmistress of the school. After appreciating the oral as well as documentary evidence led by the prosecution, the learned trial Court has rightly appreciated the evidence available on record and passed the judgment of conviction and sentence, which needs no interference. 8. I have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspections. 9. The first and foremost question arises for consideration would be the age of the victims as to whether, they were minor or not on the date of incident. 10. The prosecution has produced the school register (exhibit P-9C), with respect to the date of birth of the victims, which is sought to be proved by PW-3/Headmistress of the school. She stated in her evidence that 6 she is posted as Headmistress in the school since 2015. The police have seized the school register with respect to the victims vide seizure memo (exhibit P-8). The victims are twins and their date of birth have been recorded as 07.10.2005 in the school register (exhibit P-9) and its attested true copy is exhibit P-9C. Though in cross-examination, she stated that she was not posted in the school at the time of admission of the victims and there is no document with respect to the basis on which their date of birth was recorded, but the defence has not given any suggestion that the entries made in the school register with respect to the date of birth of the victims are incorrect or a wrong entry has been made. 11. In the matter of “Jarnail Singh v. State of Haryana” 2013(7) SCC 263, the Hon'ble Supreme Court in Para 22 to 24 held that:- “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under : “12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from 7 the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her 8 age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 9 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW- PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is 10 to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion. 24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW - PW6 could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied upto class 3 only, and thereafter, had left her school and had started to do household work. The prosecution in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW-PW6, on the next available basis, in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW4), to prove the age of the prosecutrix VW – PW6. Satpal (PW4) was the Head Master of the Government High School, Jathlana, where the prosecutrix VW - PW6 had studied upto class 3. Satpal (PW4) had proved the certificate Exhibit-PG, as having been made on the basis of the school records indicating, that the prosecutrix VW - PW6, was born on 15.5.1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are therefore of the view, that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW – PW6. It would also be relevant to mention, that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High 11 Court to rely on any other material including the ossification test, for determining the age of the prosecutrix VW-PW6. The deposition of Satpal- PW4 has not been contested. Therefore, the date of birth of the prosecutrix VW - PW6 (indicated in Exhibit P.G., as 15.7.1977) assumes finality. Accordingly it is clear, that the prosecutrix VW-PW6, was less than 15 years old on the date of occurrence, i.e., on 25.3.1993. In the said view of the matter, there is no room for any doubt that the prosecutrix VW - PW6 was a minor on the date of occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court, that even if the prosecutrix VW- PW6 had accompanied the accused-appellant Jarnail Singh of her own free will, and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor.” 12. PW-1 (victim No.1) has disclosed her age as 18 years on the date of recording of her evidence. Her evidence is recorded on 15.04.2024. She stated that when the appellant outraged her modesty first time, she was aged about 12 years. Her date of birth is 07.10.2005. The age and date of birth of the victim has not been challenged by the appellant in her cross-examination. Even otherwise, the appellant is the father of the victims and must have known her age and date of birth. When the victim has stated that her date of birth is 07.10.2005, she was minor on the date of incident i.e. after death of her mother on 05.08.2019. 13. PW-2 (victim No.2) who is the twin sister of the PW-1, has also disclosed her age as 18 years on the date of recording of her evidence 12 and she too has stated that her date of birth is 07.10.2005. No cross- examination with respect to her age or date of birth by the appellant. 14. The learned trial Court after appreciating the evidence available on record and also in view of the law laid down by the Hon'ble Supreme Court in the matter of “Jarnail Singh” (supra) held that on the date of first incident, the victims were minor and less than 18 years of age, in which I do not find any illegality or perversity. 15. So far as the offence of outraging the modesty and aggravated sexual assault are concerned, I again examined the evidence of the victims. 16. PW-1 (victim No.1) has stated in her evidence that in the year 2019, her mother has died. Even before the death of her mother, her father was having evil eye upon her and wanted to be physical with her, for which he threatened her. When her mother had protested, he beaten her and therefore, she committed suicide by overdose of medicines. After death of her mother, the appellant harassed her and confined her and her sister in the room. After death of her mother, the appellant entangled with another girl in given the entire earning to her. They earned their livelihood by giving tuition. On the day of Mahashivratri, the appellant thrown them out from his house and he assaulted her brother by knife and outraged their modesty. They took shelter in a temple in the night. There also the appellant beaten her and her sister. Her maternal aunt (bua) made the telephonic call to dial 112 and then, the police took them to the police station, where she lodged the report (exhibit P-1). In cross-examination, the victim No.1 remained firm in 13 saying that the appellant outraged her modesty and having evil eye to get physical with her. When she protested, the appellant threatened her. But for minor omissions or contradictions, which are trivial in nature, nothing could be extracted by the defence, which makes her evidence doubtful. The evidence of the victim No.1 is supported by her MLC report (exhibit P-10), in which linear abrasion was found on her right forearm. 17. PW-2 (victim No.2) has stated in her evidence that in the year 2019, her mother has died. 4-5 years prior to the death of her mother, the appellant was having evil eye upon her and outraged her modesty. When she protested, he threatened her and creating hindrance in going to school. They earned their livelihood by giving tuition. She is the twin sister with PW-1 (victim No.1). On 08.03.2024, her father had abused them and outraged their modesty. He threatened her brother also by showing him the knife and thrown them out from the house. They took shelter in the temple in the night. Her maternal aunt (bua) made a telephonic call to dial 112 and then, they could be saved from the appellant. She too has remained firm in alleging that the appellant had outraged her modesty and beaten her. Nothing could be extracted from her evidence also and there is no reason for false implication, that too by the daughters against their own father. 18. The defence taken by the appellant that the victims were not liking him, because he scolded them and slapped them occasionally due to their conduct, but the explanation given by the appellant is not sufficient to absolved him from the offence. The appellant is the father 14 of the victims and no daughters can allege their own father in such a heinous offence of outraging the modesty of his own daughters. Moreso, the young girls will not stake their reputation by leveling the false charge concerning their chastity. 19. So far as the offence of Section 9(m)/10 of POCSO Act are concerned, the appellant is guilty for sexual assault upon the victims, as there is allegation that he touches the private part of the victims and pressurized them for sexual favour and intended to get physical them. The sexual assault is defined in Section 7 of the POCSO Act and the punishment for sexual assault is provided under Section 8 of the POCSO Act, which reads as under:- “7. Sexual assault.—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. 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.” 20. From perusal of the definition of aggravated sexual assault provided in Section 9 of the POCSO Act, this Court does not find any offence committed by the appellant under Section 9 of the POCSO Act. Section 9(m) of the POCSO Act is provided that “whoever commits 15 sexual assault on a child below 12 years; or”. In the present case, the learned trial Court has found the age of the victims on the alleged date of incident as 13 years, 10 months and 25 days, therefore, the offence of the appellant does not come under Section 9(m) of the POCSO Act, but definitely come under Section 7 of the POCSO Act, which defines for sexual assault. Therefore, instead of conviction under Section 10 of the POCSO Act, the appellant is liable to be convicted under Section 7/8 of the POCSO Act. 21. Accordingly, the conviction of the appellant for the offence under Sections 323 and 354 of IPC are maintained and instead of Section 10 of POCSO Act, he has been convicted under Section 7/8 of the POCSO Act and sentenced as below:- Conviction Sentence U/s. 323 of IPC R.I. for 01 year and fine of Rs. 1000/-, in default of payment of fine further R.I. for 03 months. U/s. 354 of IPC R.I. for 04 years and fine of Rs. 2000/-, in default of payment of fine further R.I. for 06 months. U/s. 7/8 of POCSO Act R.I. for 04 years and fine of Rs. 2000/-, in default of payment of fine further R.I. for 06 months. All the sentences are directed to be run concurrently 22. With the aforesaid modification/alteration, the appeal is partly allowed. The appellant is reported to be in jail since 09.03.2024. He is entitled for set-off of his undergone period during the trial as well as during the appeal. 16 23. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 24. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved