1 CRA No. 2010 of 2022 2025:CGHC:26446 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2010 of 2022 [Arising out of judgment dated 29.11.2022 passed in Special Criminal Case (POCSO) No.104/2021 by the Additional Sessions Judge, 2 nd Fast Track Special Court, Bilaspur, District Bilaspur, Chhattisgarh.]  Hirwer Navrang S/o Late Ramadhin, aged about 59 years (now 60 years), R/o Bagbudwapara, Murtipara, Out Post- Junapara, Police Station – Takhatpur, District – Bilaspur, Chhattisgarh. ... Appellant versus  State of Chhattisgarh through Out Post – Punapara, Police Station – Takhatpur, District – Bilaspur, Chhattisgarh. ... Respondent For Appellant :- Mr. Mirza Kaisher Beg, Advocate. For Respondent-State :- Mr. Rahul Tamaskar, Government Advocate & Mr. Ashutosh Shukla, Panel Lawyer. Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 20/06/2025 1. Assailing the legality, validity, correctness of order and judgment dated 29.11.2022 passed by the Additional Sessions ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.06.24 16:07:04 +0530 2 CRA No. 2010 of 2022 Judge, 2nd Fast Track Court Special Court, Bilaspur, District Bilaspur, Chhattisgarh, in Special Criminal Case (POCSO) No. 104/2021, the appellant has preferred this criminal appeal under Section 374(2) of the CrPC, by which he has been convicted and sentenced as under:- Conviction Sentence Section 354 of the IPC Rigorous imprisonment for 3 years with fine of 2,000/-; in default of ₹ payment of fine amount the appellant has to undergo additional imprisonment for six months. Section 9(m)/10 of the POCSO Act, 2012 (for short “the Act of 2012”) Rigorous imprisonment for 5 years with fine of 2,000/-; in default of ₹ payment of fine amount the appellant has to undergo additional imprisonment for one year. Both the sentence are directed to run concurrently. Prosecution Case:- 2. The case of the prosecution as projected by the prosecution and accepted by the trial Court is that on 27.07.2021, at about 3:00 pm at Khairha Bandhiya Plot, Out Post Junapara, Police Station Takhatpur, District Bilaspur, Chhattisgarh, the appellant committed aggravated sexual assault upon the minor victim (PW-2), aged about 8 years at the time of incident, and thereby committed the aforesaid offence. 3 CRA No. 2010 of 2022 3. It is further case of the prosecution is that on 27.07.2021, victim’s mother (PW-4) made written complaint (Ex.P/6) to the police that on 27.07.2021 in the morning at about 8:00 am, her husband (PW-9) went to field and her two daughters had gone to school and her younger daughter-victim (PW-2), remained in the house with her. However, at about 10:00 am, the victim (PW-2) went to Khariha Bandhiya Plot to graze the cattle and at about 3:00 pm, when she (PW-4) went on the spot to take her daughter (PW-2), she (PW-2) informed her (PW-4) about the criminal act of the appellant, pursuant to which unnumbered FIR was registered vide Ex.P/5 and numbered FIR was registered vide Ex.P/15. Crime detail form and nazari naksha were prepared vide Exs.P/7 & P/11, respectively. As per dakhil khariz register (Article A), which was seized vide Ex.P/2, proved by Kishun Lal Khande (PW-1), date of birth of the victim (PW-2) is 01.01.2013. Wheels of investigation started running and the appellant was arrested. 4. After due investigation, appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4 CRA No. 2010 of 2022 5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 13 witnesses; exhibited 18 documents and article A, whereas, the appellant in defence has examined 2 witnesses and exhibited 3 documents. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the parties:- 7. Mr. Mirza Kaisher Beg, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He would also submit that the age of the victim could not be proved to be less than 12 years. He would further submit that the 5 CRA No. 2010 of 2022 aggravated sexual assault could not be proved by the prosecution and the appellant has falsely been implicated in crime in question. Thus, the appellant is entitled for acquittal on the basis of benefit of doubt and the appeal deserves to be allowed. 8. Mr. Rahul Tamaskar and Mr. Ashutosh Shukla, learned State counsels, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence in question as the victim (PW-2) was less than 12 years of age as per dakhil kharij register (Article A) proved by Kishun Lal Khande (PW-1), Head Master. They would further submit that the victim has clearly implicated the appellant in crime in question corroborated by the statements of victim’s mother (PW-4), victim’s sister (PW-5) and victim’s father (PW-9). Therefore, the appellant is not entitled for acquittal and the appeal deserves to be dismissed. 9. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records meticulously. 6 CRA No. 2010 of 2022 Discussion and analysis:- 10. Age of the victim:- In order to prove the age of the victim (PW-2), dakhil kharij register (Article A) has been brought on record by the prosecution which is proved by Kishun Lal Khande (PW-1), Head Master. Kishun Lal Khande (PW-1) has supported the dakhil kharij register (Article A). In his statement before the Court he has clearly stated that the entry made by him with regard to victim’s date of birth which has been recorded as 01.01.2013 on the basis of Aadhaar Card produced by the victim’s mother (PW-4). PW-1 has been subjected to some extent of cross-examination, but nothing has been extracted to hold that he had not made the entry in the register. Even victim’s mother (PW-4) and victim’s father (PW-9) both have concurrently stated in their statements before the Court that their daughter was aged about 8 years on the date and time of the incident. As such, it has rightly been held by the trial Court that the victim was less than 12 years of age on the date and time of offence and I hereby affirm the finding of the trial Court in this regard. 7 CRA No. 2010 of 2022 11. Now, it is the case of the defence that the prosecution has not been able to prove that the appellant had committed aggravated sexual assault upon the victim. 12. In this regard, statement of the minor victim (PW-2) may be noticed herein. Victim (PW-2), though she is child witness, but in her statement before the Court she has clearly implicated the appellant by stating that the appellant pressed her chest and was also trying to undress her, and when she started crying, he left her. Thereafter, her mother (PW-4) came on the spot and she (PW-2) informed about the criminal act of the appellant to her mother. She (PW-2) has been subjected to lengthy cross-examination, but nothing has been extracted to hold that she has falsely implicated the appellant in crime in question. The said statement of the minor victim (PW-2) has clearly been supported by the statement of her mother (PW-4) to whom she (PW-2) immediately informed about the incident. She (PW-4) has also been subjected to lengthy cross- examination, but nothing has been extracted to hold that the she has falsely implicated the appellant in crime in question. Furthermore, the said statement of the victim as well as the statement of the victim’s mother corroborated by the 8 CRA No. 2010 of 2022 statements of victim’s sister (PW-5) and victim’s father (PW-9) to whom PW-2 & PW-4 informed about the incident, they have also been subjected to some extent of cross examination, but nothing has been extracted to hold that they have falsely implicated the appellant in crime in question. As such, the prosecution has able to able to prove that the appellant has committed the offence of aggravated sexual assault upon the minor victim. 13. Accordingly, the trial Court has rightly held that the appellant has committed the offence in question and the age of the victim was less than 12 years of age on the date and time of offence. Thus, the appellant has rightly been convicted for offence under Section 354 of the IPC and Section 9(m) /10 of the Act, 2012. 14. At this stage, Mr. M.K. Beg, learned counsel for the appellant, would submit that considering the age of the appellant, who is aged about 60 years, he may be granted benefit of Section 4 of the Probation of Offenders Act, 1958 (for short “the PO Act”). 15. Now, the question for consideration would be whether the appellant herein having been convicted for offence under 9 CRA No. 2010 of 2022 Section 9(m)/10 of the Act, 2012 can be extended the benefit of the PO Act? 16. The Probation of Offenders Act, 1958 is an Act to provide for the release of offenders on probation or after due admonition and for matters connected therewith came into force w.e.f. 16th May, 1958. The Protection of Children From Sexual Offences Ac, 2012 is an act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters therewith or incidental thereto came into force w.e.f. 19th June, 2012. 17. Section 4 of the PO Act, is the power of court to release certain offenders on probation of good conduct. By virtue of Section 18 of the PO Act, provide saving of the operation of certain enactments. In the matter of Ratan Lal v. State of Punjab 1 it has been held by their Lordships of the Supreme Court that the benefit of Sections 3, 4 & 6 of the PO Act can be claimed subject to the conditions specified therein, by all offenders other than those found guilty of offences punishable with death or imprisonment for life unless the provisions of 1 AIR 1965 SC 444 10 CRA No. 2010 of 2022 the said Act are excluded by Section 18 of the PO Act in case offences under the special Act enacted after the PO Act which prescribes minimum sentences. 18. In the matter of Superintendent, Central Excise, Bangalore v. Bahubali 2 , it has been held by their Lordships that the PO Act may not apply in cases where a specific law enacted after the PO Act, prescribes a mandatory minimum sentence and observed in 10 as under:- “10. For the foregoing, we are of the view that though generally speaking, the benefit of Sections 3, 4 and 6 of the Probation of Offenders Act, 1958 which, as observed by Subba Rao, J. (as he then was) in Rattan Lal v. State of Punjab [AIR 1965 SC 444 : (1964) 7 SCR 676 : (1965) 1 Cri LJ 360] is a milestone in the progress of the modern liberal trend of reform in the field of penology can be claimed subject to the conditions specified therein by all offenders other than those found guilty of offences punishable with death or life imprisonment unless the provisions of the said Act are excluded by Section 18 thereof, in case of offences under a special Act enacted after the Probation of Offenders Act which prescribes a minimum sentence of imprisonment, the provisions of the Probation of Offenders Act cannot be invoked if the special Act contains a provision similar to Section 43 of the Defence of India Act, 1962. Accordingly, we uphold the contention advanced on behalf of the appellant that recourse to the provisions of the Probation of Offenders Act, 1958 cannot be had by the court where a person is found guilty of any of the offences specified in Rule 126-P(2)(ii) of the DI Rules relating to gold control which prescribes a minimum sentence in view of the emphatic provisions of Section 43 of the Defence of 2 (1979) 2 SCC 279 11 CRA No. 2010 of 2022 India Act. Question 1 is accordingly answered in the negative.” 19. Similarly, in the matter of State v. Ratan Lal Arora 3 it has been held by their Lordships of the Supreme Court that since Section 7 as well as Section 13 of the Prevention of Corruption Act, provide for a minimum sentence for six months and one year respectively, in addition to the maximum sentences as well as imposition of fine, the claim for granting relief under the PO Act is not permissible. Their Lordships further held that in cases where a specific provision prescribed a minimum sentence, the provisions of the PO Act cannot be invoked. 20. In Mohd. Hashim v. State of Uttar Pradesh 4 , their Lordships of the Supreme Court have examined the question whether in relation to minimum sentence provided for an offence under Section 4 of the Dowry Prohibition Act, 1961, providing for minimum sentence of six months. It was held that the benefit of the Act, 1958 cannot be extended where minimum sentence is provided and observed in para 19 as under:- “19. The learned counsel would submit that the legislature has stipulated for imposition of sentence of imprisonment for a term which shall not be less than six months and the proviso only states that sentence 3 (2004) 4 SCC 590 4 (2017) 2 SCC 198 12 CRA No. 2010 of 2022 can be reduced for a term of less than six months and, therefore, it has to be construed as minimum sentence. The said submission does not impress us in view of the authorities in Arvind Mohan Sinha [Arvind Mohan Sinha v. Amulya Kumar Biswas, (1974) 4 SCC 222 : 1974 SCC (Cri) 391] and Ratan Lal Arora [State v. Ratan Lal Arora, (2004) 4 SCC 590 : 2004 SCC (Cri) 1353] . We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed. If the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence. The two provisions, therefore, are not identical and have different implications, which should be recognised and accepted for the PO Act.” 21. In the matter of State of Madhya Pradesh v. Vikram Das 5 the principle of law laid down by their Lordships in the matter of Ratan Laal Arora (supra) has been followed with approval and their Lordships have observed as under:- 5 (2019) 4 SCC 125 13 CRA No. 2010 of 2022 “6. In State v. Ratan Lal Arora [State v. Ratan Lal Arora, (2004) 4 SCC 590 : 2004 SCC (Cri) 1353] , this Court was considering the grant of benefit of Probation of the Offenders Act, 1958 [ Probation Act] to a convict of the offences under the Prevention of Corruption Act, 1988 [ Corruption Act] . It was held that in cases where an enactment enacted after the Probation Act prescribes minimum sentence of imprisonment, the provisions of the Probation Act cannot be invoked. The Court held as under : (SCC p. 596, para 12) “12. That apart, Section 7 as well as Section 13 of the Act provide for a minimum sentence of six months and one year respectively in addition to the maximum sentences as well as imposition of fine. Section 28 further stipulates that the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force. In CCE v. Bahubali [CCE v. Bahubali, (1979) 2 SCC 279 : 1979 SCC (Cri) 447] while dealing with Rule 126-P(2)(ii) of the Defence of India Rules which prescribed a minimum sentence and Section 43 of the Defence of India Act, 1962 almost similar to the purport enshrined in Section 28 of the Act in the context of a claim for granting relief under the Probation Act, this Court observed that in cases where a specific enactment enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of the Probation Act cannot be invoked if the special Act contains any provision to enforce the same without reference to any other Act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation Act to the accused.”” 22. The Karnataka High Court in the matter of State of Karnataka v. Prathap 6 and Calcutta High Court in the matter of Prakash 6 CRL.A No.1335 of 2017 14 CRA No. 2010 of 2022 Shaw v. State of West Bengal & Anr. 7 have taken the similar view relying upon the principles of law laid down by their Lordships of the Supreme Court in the above stated judgments (supra) that the PO Act cannot be applicable in cases where the minimum sentence is prescribed. 23. Coming to the facts of the present case in light of the principles of law laid down in the above-stated judgments, it is quite vivid that Section 10 of the Act of, 2012 prescribes the minimum sentence of five years for offence punishable under Section 9(m) of the Act, 2012, and the Act of 2012 was admittedly enacted after the PO Act and it prescribes minimum sentence of imprisonment, as such, the provisions of PO Act cannot be invoked and, therefore, the submission made by learned counsel for the appellant that the appellant may be released on probation deserves to be and is heerby, rejected. Conclusion:- 24. In that view of the matter, the trial Court is absolutely justified in convicting the appellant for offence under Section 354 of the IPC and Section 9(m)/10 of the Act, 2012 and I do 7 CRA No.69 of 2018 15 CRA No. 2010 of 2022 not find any merit in the instant appeal, it deserves to be and is accordingly, dismissed. 25. 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 the appellant 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/- (Sanjay K. Agrawal) Judge Ankit