1 2025:CGHC:6026 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2086 of 2024 1 - Mohan Singh Thakur S/o Balram Thakur Aged About 50 Years R/o Puri, P.S. Gharghoda, District Raigarh, Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through P.S. Gharghoda, District Raigarh, Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. Prasoon Agrawal, Advocate For Respondent(s) : Mr. Vivek Sharma, Panel Lawyer Hon'ble Smt. Justice Rajani Dubey Judgment on Board 03.02.2025 1. The appellant has filed this appeal under Section 415(2) of Bharatiya Nagrik Suraksha Sanhita, 2023 challenging legality, validity and propriety of the judgment of conviction and order of sentence dated 23.10.2024 passed by Additional Sessions Judge Gharghoda, District Raigarh (C.G.) in Special Criminal Case No. 38/2022 whereby the appellant has been convicted and sentenced as described below :- Sn. Conviction Sentence 1. U/s 342 IPC R.I. for 06 months and fine of Rs. 1000/- in default of payment of 01 month additional R.I. 2. U/s 354 IPC R.I. for 03 years and fine of Rs. 1000/- in 2 default of payment of 01 month additional R.I. 3. U/s 506 Part – 2 IPC R.I. for 01 year and fine of Rs. 1000/- in default of payment of 01 month additional R.I. 4. U/s 8 of POCSO Act, 2012 R.I. for 03 years and fine of Rs. 1000/- in default of payment of 01 month additional R.I. All sentences will run concurrently 2. The case of the prosecution in brief is that, on 01.11.2022 at about 08:00 pm, when mother of the victim "A" was searching victim "B" for study teaching, the victim "B" was not found in the house. Even after searching around, she was not found then cries of the victim "B" came from the room of the accused Mohan Singh Thakur who was residing in front of their house. Then the mother of the victim "A" went to the house of the accused with the neighbors, her mother and the father of the victim "C", then the cries of victim "B" was coming from the room of the house. Then they tried to open the door but the accused did not open the door and the sound of cries and weeping of the victim "B" was coming from inside, then the door was forcibly pushed and opened and victim "B" came outside and hugged her mother "A" and started crying and told that when she had gone out of the house for defecation, the accused called her and took her to the room of his house and started molesting her with ill intentions and asked her to open her pants and panties and threatened to kill her by showing a knife if she disclosed the incident to anyone. He was threatening to kill her. He was threatening to kill her. The victim's mother "A" (PW1) submitted a written complaint of the incident (Exhibit P-1) at Police Station-Gharghodha on the same date at 23:20 pm, on 3 which Sub-Inspector Edmon Khes (PW7) lodged a First Information Report against the accused under Crime No.472/2022 for the offence under Sections 342, 354, 506 Part – II IPC and Section 8 Protection of Children from Sexual Offences Act, 2012. Sub-Inspector Edmon Khes (PW7) prepared a site map (Exhibit P-3) of the incident on 02.11.2022 and seized the birth certificate Article A-1 of victim "B" from victim's father C as per seizure memo (Exhibit P-4). On the said date itself, a steel knife was seized from the accused as per seizure memo (Exhibit P-5) and he was arrested as per arrest memo Exhibit P-6 and information about his arrest was given to his family vide Exhibit P-7. Statement of witnesses were recorded. Statement of victim "B" was recorded under Section 164 Cr.P.C. Patwari Nazri map of the spot Exhibit P/10 was prepared. After completion of investigation in Crime No. 472/2022 of Police Station- Gharghora, charge sheet No.406/2022 was presented before the court. Charges under Sections 342, 354, 506 Part – II IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 were framed against the appellant. He abjured guilt and prayed for trial. 3. In order to prove its case, the prosecution examined as many as 9 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, passed the impugned 4 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 order of sentence is bad in law, thus, it is liable to be set aside and the appellant deserves to be acquitted. The family of the prosecutrix has falsely implicated the appellant. 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 while passing the judgment of conviction and order of sentence against the appellant. He further submits that there is delay in lodging the First Information Report. The essential ingredients for the alleged offence under Section 354 of IPC are not present in the instant case. It is submitted that learned trial Court has not taken into consideration the statement of the appellant recorded under 313 CrPC in which due explanation was given by him. The prosecution has failed to prove its case against the appellant and the impugned judgment passed by the trial Court is illegal, erroneous and contrary to law and therefore, deserves to be set aside. 6. Alternatively, he further submits that the trial Court has convicted the appellant under Section 354 of IPC and Section 8 of POCSO Act separately which is not in accordance with law. Learned counsel for the appellant goes on to submit that it is clear from the statement of prosecutrix that the offence under Section 8 of POCSO is not made out against the appellant and his conviction is liable to be altered into Section 12 of POCSO Act. He further submits that the appellant is in jail since 02.11.2022 so, the total detention period of the appellant is more 5 than 02 years and 3 months and therefore, he prays that his sentence may be reduced to the period already undergone by him. 7. On the other hand, learned counsel for the State supporting the impugned judgment of conviction and order of sentence submits that the 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 merit is liable to be dismissed. 8. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 9. It is clear from the records of learned trial Court that the victim was aged about 10 years at the time of incident. The learned trial Court went through the deposition sheet of victim and also dealt with the statements of important prosecution witnesses. PW – 02 (Mother of Prosecutrix) who stated in her statement that date of birth of victim is 19.01.2013. This fact is also admitted by PW – 03 (Father of Prosecutrix) and stated in his statement that date of birth of victim is 19.01.2013 and they remained firm in their cross-examination. Thus it is proved by the prosecution that on the date of the incident the age of prosecutrix was about 10 years. 10. PW – 01 (Prosecutrix) stated that the incident took place after Diwali at around 8 pm. When she had gone out of the house for nature’s call, the accused called her and she went with him. After that the accused took her inside his house and closed the door. Then he asked her to take off her pants, when she refused, the accused forcibly started taking off her pants and started strangulating her. After that he was touching her hands and feet and laid down over her but in her 6 cross-examination, her statement is contradictory to that of her police statement. In her cross examination, she has stated that the appellant /accused didn't touch or lay down over her and she can't tell as to why the said fact was not recorded in her police statement. 11. PW – 02 (Mother of prosecutrix) in her cross-examination stated that the accused considers the victim/prosecutrix as his granddaughter and in rural areas, grandparents use to talk with their grandchildren jokingly, touches cheeks and other parts of body and also use abusive language which is not considered as bad. She further stated in her cross- examination that whenever the wife of the accused used to sit and talk with her and other women, they all felt that bad about the nature of accused. It is also stated that many times people cover their bodies with clothes to scare children, make scary sounds, lock the children in room, make it dark and scare them by giving fear of ghosts. 12. As per statement of PW – 03 (Father of Prosecutrix) in cross- examination, on the date of incident when he was sleeping, after hearing the noise, he went to home of the accused where he opened the door by pushing it and his daughter/prosecutrix came out of the house and started crying. 13. PW – 04 (Neighbbour of Prosecutrix) only stated that when mother of prosecutrix made a noise after hearing weeping sound of prosecutrix, he went there, at the time of incident, the accused was inside the room, the door was opened by him and one Surendra. 14. PW – 05 stated in his statement that while he was asking the accused to open the door, he didn’t open. Then he and one boy (D.) opened the door by pushing, thereafter, people took out the 7 prosecutrix. He also admitted the signature on seizure memo Ex.P/4 & Ex.P/5. 15. Mother and father of prosecutrix stated that the prosecutrix told them that the accused was threatening her for removing her clothes and strangulating her. After that mother of the prosecutrix filed written complaint vide Ex.P/1 based on which FIR (Ex.P/2) was registered and thereafter Spot Map (EX. P/3) was prepared. The mother of prosecutrix admitted her signature on all three documents. It was alleged that accused Mohan Thakur called her from the street and took her inside his room and while teasing her with ill intentions, he started asking her to take off her pants and panties and threatening to kill her by showing a knife if she discloses the incident to anyone. 16. Statement of the prosecutrix was also recorded under Section 164 of Cr.PC. which being necessary is reproduced herein below:- “…. सा्ቌी ्ቛारा उपरो्ሹ ्ቚ्቞ों के सही जवाब दिये जाने के कारण घटना के संबंध में पूछा गया ्ቚ्቞ 7 आपके साथ क्या घटना हुई है बताइये ? उ्ቈर घटना कल शाम की है मैं अपने घर के बाहर सुसु करने गयी थी तभी मुझे मेरे घर के सामने रहने वाले मोहन िሺसह जिजसे मैं ाा बोलती हूँ, उन्होंने मुझे बुलाया और अपने साथ अपने घर चलने बोला, वह मेरे साथ हंसी मजाक करता था इसलिलए मैं उसके साथ उसके घर चली गई। जब मैं उसके घर पहुँची तब वह मुझे कमरे अन्र ले गया तथा रवाजा अन्र से बं कर दिया और मेरी पैंट एंव पेंटी खोलने के लिलए बोलने लगा वह मुझे चाकु दिखाकर बोला की अगर दिकसी को बतायेगी तो तुम्हारे छोटे- छोटे टुकड़े करके जान से मार ढुंगा, मैं डरकर रोने लगी तभी मेरे रोने की आवाज सुनकर मेरी मम्मी मुझे ढूँढते हुए आई, वहां पहुँची तब मेरे रोने की आवाज सुनकर मेरी मम्नी तथा अन्य लोगों ने रवाजे को ध्ሪा ेकर खोला तब मैं अपनी मम्मी के पास चली गई और अपनी मम्मी को सारी बात बताई।" 17. Learned trial Court has held that the appellant is guilty of offence under Sections 342, 354, 506 Part - II IPC and Section 8 of Protection of 8 Children from Sexual Offences Act, 2012. Sections 7, 8, 11 and 12 of the POCSO Act are provided 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 or 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. 11. Sexual harassment - A person is said to commit sexual harassment upon child when such person with sexual intent,- (i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or (ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or (iii) shows any object to a child in any form or media for pornographic purposes; or (iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or (v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or (vi) entices a child for pornographic purposes or gives gratification therefor. Explanation. Any question which involves "sexual intent" shall be a question of fact. 12. Punishment for sexual harassment. Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.” 18. As per statement of the victim recorded before the Magistrate under Section 164 of Cr.P.C., the appellant did not perform any act which falls within the ambit of Section 8 of POCSO but she stated in her court 9 evidence that accused slept over her but she could not tell the reason that why the said statement was not recorded in her police statement. 19. As per statement of prosecutrix, the act of accused is covered under Section 11 of POCSO, Act, 2012 and the same is punishable under Section 12 of Act of 2012 but not under Section 8 of POCSO. The trial Court not only convicted the appellant under Section 354 of IPC but also convicted the appellant under Section 8 of Act of 2012 separately and sentenced him thereunder. Thus, instead he is held guilty under Section 354 of Indian Penal Code read with Section 12 of POCSO Act. 20. So far as conviction under Section 342 and 506 Part – II of IPC is concerned, in the given facts and circumstances of the case and the evidence on record, the same is hereby affirmed. The sentence awarded thereunder by the learned trial Court being just and proper is also maintained. 21. As regards sentence under Section 354 of IPC read with Section 12 of POCSO Act, considering the facts and circumstances of the case, the fact that the appellant is in jail since 02.11.2022, he has no criminal antecedent and there is no minimum sentence prescribed under Section 12 of the POCSO Act, this Court is of the opinion that no fruitful purpose would be served in keeping the appellant behind the bars any longer and the ends of justice would be served if he is sentenced to the period already undergone by him for the offence under Section 354 of IPC read with section 12 of the POCSO Act. 22. In the result, the appeal is allowed in part. Conviction of the appellant under Sections 342 and 506 Part – II of IPC and the sentence awarded thereunder by trial Court are hereby maintained. However, conviction under Section 8 of the POCSO Act is set aside and instead the 10 appellant is held guilty under Section 354 of IPC read with Section 12 of the POCSO Act and his sentence thereunder is reduced to the period already undergone by him. The fine imposed on the appellant under Section 354 of IPC with default sentence by trial Court shall remain intact. The appellant is reported to be in jail, therefore, he be set free forthwith if not required in any other case. However, in view of provisions of section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant shall execute a bail bond for a sum of Rs.25,000/- to the satisfaction of the learned trial Court for his appearance before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against this judgment and such bond shall be in force for a period of six months. 23. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Certified Copy as per rules. Sd/- ( Rajani Dubey) JUDGE Saxena ABHIGYA SAXENA Digitally signed by ABHIGYA SAXENA