1 2025:CGHC:49105-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1868 of 2019 [ Judgment reserved on : 23.07.2025 Judgment delivered on : 25.09.2025 1 - Lokchand Gond S/o Dhansingh Aged About 21 Years R/o Village Ghaghra, Nawapara, Mauhari, Police Station - Pendra District – Bilaspur, Chhattisgarh Appellant (s) versus 1 - State Of Chhattisgarh Through The Police Station - Pendra, District Bilaspur, Chhattisgarh Respondent(s) For Appellant (s) : Mr. Siddharth Pandey, Advocate For Respondent (s) : Mr. Vivek Mishra, PL Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Amitendra Kishore Prasad C A V Judgment Per Rajani Dubey J. 1. The present appeal is directed against the judgment of conviction and order of sentence dated 19.11.2019 passed by the learned Special Additional Session Judge, Pendra Road, District Bilaspur (C.G.) in Special Session Trial No.07/2019, whereby the Digitally signed by R NIRALA 2 appellant has been convicted under Sections 376 (3) of IPC and sentenced to undergo RI for 20 years with fine of Rs.5000/- with default stipulations. 2. The prosecution case, in brief, is that on 02.04.2019 at about 3 pm when the mother of the prosecutrix was doing her household work in the courtyard of her house, then the prosecutrix who had gone to house of Dhansingh Gond with her sister and came crying to her house and narrated the ordeal to her mother that appellant caught hold of her hand and dragged her inside the house and forcefully committed sexual intercourse with the prosecutrix. Thereafter the mother of prosecutrix told about the incident to her husband and also informed Makhan Singh Dhirve, Sunita Dhurve and Bhao Singh through phone. Thereafter she lodged FIR at police station concerned. After investigation, charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellant, as mentioned in para 1 of the judgment. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. Dr. Manisha Devangan (P.W.5) has admitted that she has not found any external injury on body of prosecutrix nor there was any injury on vaginal region. She also stated that she cannot give any 3 definite opinion for rupture of hymen. She stated that it is not possible to ascertain that whether the blood stains found on the body of prosecutrix is human blood or animal blood. The prosecutrix P.W.2 has stated that on the date of incident the prosecutrix had handed over her frock and underwear but same has not been seized by the police. The medical evidence does not corroborate the ocular evidence. The prosecution has also not produced any incriminating material against the appellant, but the learned Trial Court has not considered the above said aspects of the matter and wrongly convicted the appellant for the aforesaid offence. Therefore, the appeal deserves to be allowed. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matter of Birka Shiva vs State of Telangana, reported in 2025 SCC Online SC 1454 and the judgment rendered by this Court in the matter of Dhaneshwar Kurrey vs State of Chhatisgarh, passed in CRA No.219/2020, decided on 17.01.2025. 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal is liable to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the 4 learned Trial Court framed charges under Sections 376 and 506 Part-II of IPC and Sections 4 & 6 of POCSO Act against the appellant and after appreciation of oral and documentary evidence, the learned Trial Court convicted and sentenced the appellant, as mentioned in para 1 of the judgment. 7. As per the prosecution, the victim was aged about 10 years at the time of incident. The mother of the prosecutrix (PW-1) stated that the date of birth of her daughter is 13.05.2009. The learned Trial Court recorded statement of the prosecutrix as PW-2 and estimated her age as 10 years on the date of incident. The father of the prosecutrix (PW-3) also stated that the date of birth of her daughter as 10 years. 8. Manbodh Singh Uraon (PW-8), Principal of Government Primary School, Navapara stated that the police seized the admission discharge register (Ex-P/9) as per seizure memo (Ex-P/5) and gave this register on supurdnama vide Ex-P/8. As per this register, at Sr. No.354, the name of the prosecutrix was entered and as per this register, her date of birth is 13.05.2009. In the cross-examination, he admitted this suggestion of defence that on what basis the date of birth was written he cannot say. He also admitted that in admission register (Ex-P/9) his signatures are not there. 9. The learned Trial Court estimated the age of the victim as 10 years on the date of incident and the mother of the victim stated the date of birth of the victim as 13.05.2009. Dr. Manisha 5 Dewangan (PW-5) also recorded the date of birth of the victim as 10 years so looking to the statement of all witnesses and estimated age by the learned Trial Court, it is proved that at the time of incident, the victim was aged about 10-11 years and the prosecution has successfully proved that the victim was below 18 years of age at the time of incident. 10. The victim (PW-2) stated that on the date of incident when she was playing with other children at that time the accused who was her uncle dragged her and committed sexual intercourse with her, thereafter she told the same to her mother. In the cross- examination, when it was asked that whether she is saying the same on his lawyer’s saying, then she denied the same. She also denied this suggestion that she is falsely implicating him. 11. The mother of the prosecutrix (PW-1) stated that her daughter while crying came to the house and told that the accused committed rape with her then she saw that her private part was bleeding and thereafter she took her to police station and lodged the report vide Ex-P/1. She denied this suggestion that due to quarrel, they are falsely implicating the appellant. 12. PW-3 father of the prosecutrix stated that her wife told him that the accused committed rape with the prosecutrix, upon which he went to house and saw that her daughter was having blood stains and bleeding was done from her private part. Thereafter they told the incident to his relatives and lodged the report against the appellant at the police station concerned. 6 13. Dr. Manisha Dewangan (PW-5) examined the prosecutrix on 02.04.2019 and found no external injuries on the body of the prosecutrix and even in her vaginal area but blood clot was found in external vaginal part of the prosecutrix and hymen was not present. She prepared slides and sent for chemical examination and gave her report vide Ex-P/7. As per FSL report (Ex-P/21) in the vaginal slide and Article-A and unprepared Article-B and semen was found. 14. Dr. Manisha Dewangan (PW-5) opined that it is not possible to say that whether intercourse was done or not but she prepared slide but in slide, semen was found. The doctor denied this suggestion that bleeding was due to monthly menstrual cycle of the victim so looking to the statement of PW-5 doctor and FSL report, the victim was subjected to sexual assault and the learned Trial Court also minutely appreciated the oral and documentary evidence properly and rightly convicted the appellant for the aforesaid offence. 15. As regards sentence, at this stage, the learned counsel for the appellant submits that the incident took place on 02.04.2019 and the appellant was found guilty of offence under Section 6 of POCSO Act and he was convicted under Section 376 (3) of IPC and sentenced to undergo RI for 20 years. He further submits that Section 6 of the POCSO Act, 2012 was amended on 16.08.2019, whereas the incident took place on 02.04.2019 and prior to the amendment, the minimum sentence under Section 6 7 of POCSO Act was 10 years, thus the amended Section 6 of POCSO Act will not be applicable in the appellant’s case, as such he be sentenced to RI for 10 years instead of RI for 20 years. 16. This Court in the matter of Nandu Yadav vs State of Chhattigarh, passed in CRA No.578/2020, decided on 25.10.2024, held in paras 32 to 34 as under:- “32. The Hon’ble Division Bench of this Court in the matter of Deepak Verma vs. State of Chhattisgarh, CRA No. 392 of 2021 vide judgment dated 16.10.2021 while dealing with the unamended provisions of Section 6 of the POCSO Act observed in paras 30 & 31 held as under:- “30. The learned trial Court has convicted the appellant both under Section 6 of the POCSO Act and Section 376AB of the IPC but in view of Section 42 of the POCSO Act, which provides for alternate punishment which is greater in degree and as such, the appellant has been sentenced for the offence punishable under Section 376AB of the IPC. 31. Earlier, before amendment, Section 6 of the POCSO Act provided that whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but may extend to imprisonment for life and shall also be liable to fine. After amendment, i.e., w.e.f. 16.08.2019, the said Section provides for rigorous imprisonment for a term which shall not be less than 20 years. The incident took place on 25.6.2018 and as such, Section 6 of the POCSO Act, which stood as before 16.08.2019 would be applicable in the present case and as such, this Court is of the view that instead of convicting the appellant for the offence under Section 376AB of the IPC and sentencing him to rigorous imprisonment for 20 years with fine of Rs. 50,000/-, the appellant be convicted 8 under Section 6 of the POCSO Act and sentenced to rigorous imprisonment for 10 years with fine of Rs.50,000/- and in default of payment of fine, to further undergo 1 years rigorous imprisonment. It is ordered accordingly.” 33. In the aforesaid judgment, it was held that before the amendment, Section 6 of the POCSO Act provided for punishment with rigorous imprisonment for a term which shall not be less than ten years but may extend to imprisonment for life and shall also be liable to fine. After the amendment, i.e. w.e.f 16.09.2019, the said Section provides for rigorous imprisonment for a term which shall not be less than 20 years. Thus, instead of convicting the appellant for the offence under Section 376AB of the IPC, the appellant was convicted under Section 6 of the POCSO Act and sentenced to rigorous imprisonment for 10 years with a fine of Rs. 50,000/-. 34. Applying the law laid down by the Hon’ble Division Bench of this Court in the matter of Deepak Verma (supra), since the incident had taken place on 29.03.2019 when the unamended provisions of Section 6 of the POCSO Act were in force, the present appellant is convicted and sentenced to undergo rigorous imprisonment for a period of 10 years under Section 6 of the POCSO Act instead of Section 376AB of the IPC. The rest of the conviction and sentence part along with the fine and default stipulation is not interfered with. The accused/appellant shall be entitled to the set-off for the period already undergone by him.” 17. Applying the aforesaid principle in the present case as well, it is clear that in the case in hand the incident had taken place on 02.04.2019 when the unamended provisions of Section 6 of the POCSO Act were not in force, as such the present appellant is convicted and sentenced to undergo rigorous imprisonment for a period of 10 years under Section 6 of the POCSO Act instead of Section 376 (3) of the IPC. The accused/appellant is in jail since 03.04.2019 and he shall be entitled to the set-off for the period 9 already undergone by him and rest of the jail sentence shall be served by him.” 18. Consequently, the appeal is partly allowed. The impugned judgment of conviction and order of sentence is modified to the extent indicated herein-above. 19. The Trial Court’s record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Copy of this judgment be also sent to the concerned Jail Superintendent for information and necessary compliance. Sd/- Sd/- Rajani Dubey Amitendra Kishore Prasad Judge Judge Nirala