1 2025:CGHC:37564 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1698 of 2019 {Arising out of judgment dated 15.02.2018 passed in Special Criminal Case No.198/2017 by the learned Special Judge POCSO (F.T.C.) Dhamtari} Premshankar Sen, S/o. Late Mahendra Sen, Aged About 23 Years, R/o. Village Kuliya, Police Station Gurur, District Balod, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Station House Officer, Police Of Police Station Arjuni, District Dhamtari, Chhattisgarh. ... Respondent For Appellant : Mr. Qamrul Aziz, Advocate For Respondent : Mr. H.A.P.S.Bhatia, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board (31.07.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.08.04 15:00:13 +0530 2 Sanjay K. Agrawal, J. 1. The sole appellant herein has preferred this appeal under Section 374(2) of Cr.P.C. being aggrieved and dissatisfied with the judgment of conviction and order of sentence dated 15.02.2018 passed in Special Criminal Case No.198/2017, by which the learned Special Judge POCSO (F.T.C.) Dhamtari has convicted & sentenced the appellant as under : CONVICTION SENTENCE U/s. 363 of I.P.C. : Rigorous imprisonment for 1 year and fine of Rs.500/-, in default of payment of fine, 1 month additional simple imprisonment. U/s. 307 of I.P.C. : Rigorous imprisonment for 7 years and fine of Rs.1000/-, in default of payment of fine, 3 months additional simple imprisonment. U/s. 376 of I.P.C. and Section 6 of POCSO Act, 2012. : Rigorous imprisonment for 12 years and fine of Rs.2500/-, in default of payment of fine, 6 months additional simple imprisonment. 2. Case of the prosecution, in short, is that, on 21.06.2017, at about 2:00 P.M. at village Barari, Police Station- Arjuni, 3 District Dhamtari, the appellant herein abducted the minor victim from the lawful guardianship of her parents and assaulted her by stone and thereafter, committed aggravated penetrative sexual assault; thereby the aforesaid offences have been committed. Father of the victim, Damanlal Sen (PW-3), reported the matter to the police on the same day i.e. 21.06.2017 alleging that he along-with his wife and daughter (victim) came to attend the last rites of his mother-in-law at village Mudpar and the appellant abducted her daughter and committed an offence of aggravated penetrative sexual assault on her. Thereafter, MLC of the victim (PW-2) was conducted by Dr. Asha Tripathi (PW-12) and vide MLC report (Ex.P-13), injuries were noticed on her body, hymen was torn and her private part was lacerated. The dakhil khariz register and birth certificate of the victim was seized vide Ex.P-7 and cloths of the victim were seized vide Ex.P-8. The undergarments of the victim was seized vide Ex.P-17 and underwear of the accused/appellant was seized vide Ex.P-30. Vaginal slides of the victim was also prepared, which was sent for chemical examination along-with the other seized articles and as per the FSL report (Ex.P-41), stains of semen and human sperm was found on the seized articles i.e. Articles- B,C,D,E & F. The age of the victim was found to be less 4 than 18 years as per the Dakhil Khariz Register (Ex.P-20). The statement of the victim was recorded by the Child Welfare Committee vide Ex.P-34. After due investigation, the appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. During the course of trial, in order to bring home the offences, prosecution has examined as many as 20 witnesses and exhibited 41 documents along-with Article A-2 to A-8 and the appellant-accused in support of his defence has not examined any witness but has exhibited the document Ex.D-1 to D-3. 4. The learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellant for the aforesaid offences as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Mr. Qamrul Aziz, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences, as there is no legal evidence available on record to convict the 5 appellant for the aforesaid offences. As such, the appellant is entitled for acquittal and the appeal deserves to be allowed. In alternative, he would further submit that prior to 16.08.2019 the minimum sentence prescribed for committing offence under Section 6 of the POCSO Act was 10 years rigorous imprisonment and in the present case, date of offence i.e. 21.06.2017, therefore, in light of the decision of the Supreme Court in the matter of Uttar Pradesh v. Sonu Kushwaha 1 the sentence of the appellant can also be reduced to 10 years rigorous imprisonment. 6. Mr. H.A.P.S.Bhatia, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences; therefore, the appeal deserves to be dismissed. He would further submit that the manner in which the appellant has abducted the minor girl and committed aggravated penetrative sexual assault and caused injuries to her by stone, which was proved by Dr. Asha Tripathi (PW-12) vide MLC report (Ex. P-13). As such, it is not a case where the punishment should be reduced from 12 years to 10 years. 1 (2023) 7 SCC 475 6 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. Age of the Victim :- P.S. Netam (PW-15), Headmaster of the Government Primary School, Akaltara, in his statement before the Court, has stated that he has brought the Dakhil Khariz Registrar (Ex.P-20) and entry of date of birth of the victim has been made at serial No.54 vide Ex.P-21 by him. As such, on the basis of Ex.P-21, the date of birth of the victim (PW-2) was recorded as 02.10.2005 by P.S.Netam (PW-15). Therefore, the trial Court has rightly held the age of the victim to be 11 years 8 months & 19 days on the date of offence, which is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. The victim (PW-2) in her statement before the Court has clearly stated that she had came along-with his father & mother to attend the last rites of her maternal grand- mother at village Mudpar and the appellant has also participated in that last rites and abducted her and thereafter committed aggravated penetrative sexual assaulted on her. The victim has been cross-examined, but 7 nothing has been extracted to disbelieve her statement. She has been medically examined by Dr. Asha Tripathi (PW-12) vide Ex.P-13 in which she has clearly noticed the injury on private part of the victim and her hymen was torn. Furthermore, as per the FSL report (Ex.P-41), stains of semen and human sperm was found on the seized articles i.e. Articles- B, C, D, E & F. As such, the statement of the victim was duly supported by medical evidence as well as forensic evidence. So far as the external injuries are concerned, the victim was medically examined by Dr. J.S.Khalsa (PW-19) vide Ex.A-5 in which it has been clearly stated that the victim has suffered grievous & serious injuries on her head. As such, in our considered opinion, the conviction and sentence of the appellant for the offences under Sections 363, 307, 376 of I.P.C. & Section 6 of the POCSO Act is well merited and warrants no interference. 10. So far as the argument with regard to reducing of sentence awarded to the appellant for the offence under Section 376 of I.P.C. & Section 6 of POCSO Act from 12 years to 10 years on the ground that incident was of 21.06.2017 and the minimum sentence under Section 6 of the POCSO Act was 10 years prior to 16.08.2019 is concerned, considering 8 the fact that the manner in which the appellant has caused injuries to the victim and committed aggravated penetrative sexual assault, we do not consider it to be a fit case for reducing the sentence to 10 years from 12 years. Accordingly, the appeal preferred by the appellant is liable to be and hereby dismissed. 11. The Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, informing him by providing a copy of this judgment that he is at liberty to assail the present judgment passed by this Court by preferring an appeal under Article 136 of the Constitution of India before the Hon'ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge Ashok