1 2025:CGHC:9664 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2293 of 2023 Umeshram S/o Shri Dhanurjit Ram Aged About 36 Years R/o Village - Singibahar Thana - Tapkara, District Jashpur (C.G.) ... Appellant versus State of Chhattisgarh through The District Magistrate Jashpur, District Jashpur (C.G.) ... Respondent For Appellant : Mr. Sumit Shrivastava, Advocate For Respondent/State : Mr. U.K.S. Chandel, Deputy A.G. Hon'ble Shri Ramesh Sinha, Chief Justice Judgment on Board 25/02/2025 1. Though, today the present appeal has been listed for hearing on I.A. No.01 of 2023, which is application under Section 389 of the Cr.P.C. for suspension of sentence and grant of bail, but with the consent of learned counsel for the parties and considering the period of detention of the appellant, the appeal is heard finally. 2. Accordingly, I.A. No. 01 of 2023 stands disposed of. 3. This criminal appeal filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) RAHUL DEWANGAN Digitally signed by RAHUL DEWANGAN 2 is directed against the impugned judgment of conviction and order of sentence dated 16.10.2023 passed by the learned Special Judge (POCSO Act 2012), Kunkuri, District – Jashpur (C.G.) in Special Sessions Trial (POCSO Act) No. 20/2022, whereby the appellant/accused has been convicted and sentenced in the following manner with a direction to run both the sentences concurrently. CONVICTION SENTENCE Under Section 342 of Indian Penal Code. Rigorous Imprisonment for 1 year with fine of Rs.1,000/-, in default of pay- ment of fine additional SI for 06 months. Under Section 6 r/w Section 18 of Protection of Children from Sexual Offences Act, 2012. Rigorous Imprisonment for 10 years with fine of Rs.5,000/-, in default of payment of fine additional SI for 02 years. 4. Case of the prosecution, in brief, is that the complainant, the victim's father, lodged a report at the Police Chowki, stating that on July 5, 2022, his six-year-old daughter, belonging to a Scheduled Caste, was taken to the accused's home without her parents' permission. There, she was subjected to sexual assault (rape). When she failed to return home, her mother went to the accused's home, which was locked from the inside. Upon shouting, the accused opened the door, and the victim emerged, crying and holding her torn innerwear. After returning home with her mother, the victim 3 informed them that the appellant had attempted to rape her. Consequently, the mother (PW2) lodged a report, and the police registered it as Crime Number 91/2022. Following an investigation, a charge-sheet was filed for offenses under Sections 363, 342, 376, 511, 366(A), and 376(A-B) of the IPC, as well as Sections 9 and 10/5 and 6 of the POCSO Act 2012, and Section 3(2)(V) of the SC/ ST Prevention of Atrocities Act. Thana Tapkara investigated the matter, registered it as Crime Number 91/2022, and sent the victim for medical examination (mulahija). The victim's statement was recorded under Section 164 of the Cr.P.C. before the JMFC Bageecha. The accused appellant was arrested, and witness statements were recorded. After completing the investigation, a charge-sheet was filed before the Special POCSO Court in Kunkuri, Jashpur District, Chhattisgarh (CG). 5. Prosecution in order to prove its case examined as many as 13 witnesses and exhibited 26 documents i.e. Exs. P-1 to P-26, the accused has not examined any witness in his defence. 6. The learned Special Judge (POCSO Act 2012), Kunkuri, District – Jashpur (C.G.) after appreciating oral and documentary evidence available on record vide impugned judgment dated 16.10.2023 convicted and sentenced the appellant as mentioned in opening paragraph of this order. Feeling aggrieved by the said judgment, the instant appeal under Section 374(2) of CrPC has been filed by the appellant. 7. Learned counsel for appellant would submit that he is not pressing this appeal so far as it relates to conviction part of impugned 4 judgment is concerned and is confining his argument to the quantum of sentence only. He submits that though the conviction and sentence of the applicant was made under Section 6 read with Section 18 of the POCSO Act for 10 years, but even if the statement of the victim recorded before the trial Court is taken at its face value, the case would not travel beyond the scope of Section 7/8 of POCSO Act. He also submits that the applicant has already served out more than 2 years and 7 months of jail sentence out of 10 years imposed by the trial Court, hence his conviction be altered to Section 7/8 of the POCSO Act and he be sentenced to the period already undergone by him. 8. On the other hand, learned State Counsel opposing the prayer of learned counsel for appellant, would submit that looking to the allegations levelled and conduct of the appellant, leniency should not be shown to appellant. 9. I have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 10. Though learned counsel for appellant has not challenged conviction of the appellant and confined his prayer only with regard to reduction of sentence as undergone, but still this Court deems it appropriate to examine the impugned judgment of the trial Court. This Court has meticulously perused impugned judgment and evidence on record. 11. Now the question arises for consideration would be whether the present case comes within the purview of Section 7/8 of the 5 POCSO Act or not as urged by learned counsel for the appellant. 12. The learned trial Court has convicted the appellant under Section 6 read with Section 18 of the POCSO Act and sentenced him to undergo RI for 10 years and to pay fine of Rs.5,000/-, in default of payment of fine, additional SI for two years. 13. Section 6 of the POCSO Act reads as under :- “6. Punishment for aggravated penetrative sexual assault.—(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. (2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.” 14. The most important witness of the incident, the victim (PW-1) has stated in her main examination that she recognized the accused. Her evidence is that she was playing in her grandmother’s house, then the accused Umesh Ram, came to her house and saying “Come to my house and play with my daughter” then he locked the door of his house, removed her underwear, and also removed his own underwear, then he covered her mouth and got on top of her. When her mother arrived and started shouting, the accused initially did not open the door. However, when she shouted again, he finally opened it. Her mother then took her out and brought her back to her grandmother’s house. 6 15. Thus, the victim (PW-1) has shown in her main examination that on the date of incident, while she was playing in her grandmother’s house, then the accused Umesh Ram, came to her house and saying “Come to my house and play with my daughter” then he locked the door of his house, removed her underwear, and also removed his own underwear, then he covered her mouth and got on top of her. Apart from this, on the suggestion of the accused in paragraph 16 of the cross-examination, the witness has stated in response to the question that the accused had not removed her clothes either, but the witness has clarified in his own statement that the accused had removed her underwear and the accused had also removed his own underwer. There is no allegation of any penetrative sexual assault. Further, in MLC report (Ex.P-10) conducted by Dr. Laxmi Paikra (PW-05), no definite opinion regarding sexual intercourse has been given. 16. Section 7 of the POCSO Act 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.” 17. Section 8 of the POCSO Act reads as under :- “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.” 7 18. Considering the statement of the victim recorded before the trial Court, it transpires that the present case comes within the purview of Section 7/8 of the POCSO Act and the learned trial Court has committed grave illegality in convicting the accused/appellant under Section 6 read with Section 18 of the POCSO Act. 19. In view of the same, conviction of the appellant awarded by the trial Court under Section 6 read with Section 18 of the POCSO Act is hereby altered to Section 7/8 of the POCSO Act and he is sentenced to undergo RI for 5 years. The fine sentence imposed by the learned trial Court shall remain intact. 20. In the result, the appeal is partly allowed to the extent indicated hereinabove. 21. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ramesh Sinha) Chief Justice Rahul Dewangan