1 2025:CGHC:38281-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1932 of 2019 Ranjeet Giri @ Mukhiya S/o Late Ishwari Giri, Aged About 48 Years R/o Village Gharub, P.S. Obara, District Aurangabad (Bihar), At Present R/o. Village Jarhagarh, P.S. Ambikapur, District Surguja (C.G.) ...Appellant Versus State of Chhattisgarh, through Police Station Ambikapur, District Surguja (C.G.) ... Respondent For Appellant : Mr. Anukul Biswas, Advocate. For State : Mr. Ashutosh Shukla, P.L. Hon'ble Smt. Justice Rajani Dubey,J. Hon’ble Shri Justice Amitendra Kishore Prasad, J. Judgment on Board Per Rajani Dubey, J. 04.08.2025 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 18.11.2019 passed by the learned Additional Sessions Digitally signed by RAVVA UTTEJ KUMAR RAJU 2 Judge (F.T.C.), Surguja (Ambikapur) (Special Judge POCSO Act) (C.G.) in Special Criminal Case (POCSO) No. 76/2018, wherein the said Court convicted the appellant and sentenced him as under:- Conviction Sentence U/S 363 of IPC R.I. for 7 years and fine of Rs. 500/-, in default of payment of fine to undergo further S.I. for one month. U/S 366(A) of IPC R.I. for 07 years and fine of Rs. 500/-, in default of payment of fine to undergo further S.I. for one month. U/S 5(l)/6 of POCSO Act. R.I. for life (which shall not be less than 20 years, but accused shall remain in jail for his remaining life) and fine amount of Rs. 500/-, in default of payment of fine to undergo further S.I. for one month. U/S 5(m)/6 of POCSO Act. S.I. for life (which shall not be less than 20 years, but accused shall remain in jail for his remaining life) and fine amount of Rs. 500/-, in default of payment of fine to undergo further S.I. for one month. U/S 5(i)/6 of POCSO Act. R.I.. for life (which shall not be less than 20 years, but accused shall remain in jail for his remaining life) and fine amount of Rs. 500/-, in default of payment of fine to undergo further S.I. for one month. 3 (All the sentences are directed to run concurrently.) 2. Brief facts of the case are that on 17.10.2018, the prosecutrix/victim (PW/04) was playing near her house, at that time the accused/appellant took her to a dark empty place across the road, by asking her to go for a walk, and after taking off her underwear and pant, he touched her private part of the body from which she urinates and then he inserted his finger in it and when the victim resisted him to do so, he silenced her by scolding and he started moving his finger in and out of the victim’s urinary tract with great force, due to which the victim/prosecutrix started feeling pain and then the accused/appellant threatened her by saying that not to disclose the said incident to anyone or else he will repeat the same, the prosecutrix/victim got scared and did not tell anyone about the incident at night, but the next day the victim/prosecutrix (PW/04) told about the said incident to her parents. The victim’s father (PW/01) lodged written report vide Ex. P/01 at Ambikapur Police Station on 18.10.2018. Sub-Inspector Anita Aayam (PW/05) registered F.I.R against the accused/appellant vide Ex. P/02. Thereafter, for getting the medical examination of the prosecutrix(PW/04) done, consent letter from her father was obtained vide Ex. P/03 and written complaint Ex. P/12 was sent to District Hospital, Ambikapur for getting the medical examination of the prosecutrix/victim (PW/04). As per the information given by the prosecutrix/victim (PW/04) and her father (PW/01), spot map of the said incident was prepared vide Ex. P/04. On presentation of lady constable No. 584 viz. Bhagwanti Bunkar vaginal slide in a sealed packet was seized in presence of witnesses as per seizure memo Ex. P/13. 4 Statements of victim’s father (PW/01), victim’s mother (PW/02), Sumitra Sharma (PW/09), Chandni Devi and Chandan Bharti were recorded as per their version. On 20.10.2018, the accused was incarcerated in presence of witnesses as per arrest memo vide Ex. P/15 and information regarding his arrest was provided to his daughter Chandni Gupta vide Ex. P/16. As per Ex. P/14, the written complaint was sent to District Hospital, Ambikapur for medical examination of the accused/appellant. 3. During the course of investigation, Sub-Inspector Anita Aayam had sent complaint Ex. P/17 to Child Welfare Committee, Ambikapur on 22.10.2018 for recording the statement of the prosecutrix/victim (PW/04). On 24.10.2018, complaint Ex. P/18 was sent before the Judicial Magistrate First Class for recording the statement of the prosecutrix/victim under Section 164 of Cr.P.C. On 03.11.2018, written complaint Ex. P/10 was sent to the Principal of Victoria Public School, Kaushal Sharma (PW/03) regarding production of the Dakhil Kharij Register regarding the age of the prosecutrix/victim (PW/04) and on the presentation of the same by the Principal Kaushal Sharma (PW/03), the certified copy of the Dakhil Kharij Register was seized in front of witnesses as per seizure memo vide Ex. P/05. On 05.11.2018, written complaint Ex. P/19 was sent to the Tahsildar, Ambikapur regarding preparation of the spot map. A draft vide Ex. P/20 was sent to the Joint Director, Regional Forensic Science Laboratory, Ambikapur through the Superintendent of Police, Surguja for getting the seized properties chemically tested and receipt Ex. P/20A was received. 5 4. After completion of usual investigation, the charge-sheet under Section 363, 366-A, 376(AB), under Section 5 (l)/6 of POCSO Act, under Section 5 (m)/6 of POCSO Act and under Section 5 (i)/6 of POCSO Act was submitted before the concerned Jurisdictional Magistrate and then the case was committed for trial to Additional Sessions Judge, (F.T.C.), (Special Judge POCSO Act) Surguja (Ambikapur) (C.G.) to which the accused/appellant abjured his guilt and prayed for trial. 5. In order to prove its case, the prosecution has examined as many as 09 witnesses and exhibited several documents. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 6. Learned trial Court after appreciating the oral and documentary on record, convicted the appellant under Sections 363, 366(A) of IPC and under Sections 5(l)/6 of POCSO Act, under Section 5(m)/6 of POCSO Act and under Section 5(i)/6 of POCSO Act and sentenced him as mentioned in the opening paragraph of this judgment. 7. Learned counsel for the appellant submits that the impugned judgment dated 18.11.2019 is bad in law as also bad under the present facts and circumstances of the case, The impugned judgment of conviction and sentence is contrary to the facts, evidence and law applicable in the facts and circumstances of the case. The finding given by the learned trial Court against the appellant is perverse, erroneous, contrary to law, facts and circumstances of the case, therefore, it is liable to be set aside. The learned trial Court has erred in convicting the appellant only 6 on the basis of assumption and presumption, however there is no clinching evidence on record against the appellant, therefore, the impugned judgment is bad in the eyes of law. The learned trial Court has failed to observe that the prosecution has failed to prove its case beyond reasonable doubt and the learned trial Court has failed to appreciate that the medical report has not supported the case of prosecution. There are material contradiction and omission in the statement/deposition of prosecution witnesses, falsifying the case of prosecution. Therefore, impugned judgment is liable to be set-aside. Alternatively, he submits that the incident took place on 17.10.2018, at that time the minimum sentence prescribed under Section 6 of POCSO Act was 10 years and amended provision will not apply to this case as the incident took place prior to 16.08.2019. He places reliance on the judgment rendered in the matter of State of Uttar Pradesh vs. Sonu Kushwaha reported in (2023) 7 SCC 475, where the Hon’ble Supreme Court has held that the punishment for the commission of an offence under Section 4 or 6 read with Section 2(1) (a), 3(a) and 5(m) of the POCSO Act, 2012 for the offence of aggravated penetrative sexual assault was 10 years but after 16.8.2019 it has been enhanced to 20 years. In the cited case, the accused was punished with imprisonment for 10 years. As such, if this Court finds that conviction is proper, then appeal may be allowed regarding sentence of appellant and he may be sentenced for 10 years of imprisonment. 8. Ex adverso, learned counsel appearing for the State strongly opposes the prayer of the appellant, supporting the impugned judgment submits that the learned trial Court after minute appreciation of the oral and documentary evidence has rightly convicted and sentenced the appellant under the aforesaid Sections which is as mentioned in opening paragraph of this judgment. Hence, the judgment is well merited and there is no scope for interference by this Court. This appeal 7 being devoid of any merit is liable to be dismissed. 9. We have heard both the counsel for the parties and perused the material available on record including the impugned judgment with utmost circumspection. 10. It is clear from the record of the learned trial Court that the learned trial Court framed charges under Sections 363, 366(A) of IPC and under Section 5 (l)/6 of POCSO, under Section 5 (m)/6 of POCSO Act and Section 5 (i)/6 of POCSO Act and sentenced him as described in the opening paragraph of this judgment. 11. As per prosecution, the prosecutrix/victim is aged about 04 years at the time of incident and the prosecutrix/victim (PW/04) identified the accused as grandfather of Pihu ( पीहू के दादा) and she identified picture of accused/appellant and stated that Pihu’s grandfather took her to Chillam Chowk and took her to empty dark place and inserted his finger in her private part and she stated the same story before her mother and the Magistrate. 12. (PW-02) Mother of the prosecutrix/victim stated that the victim is her daughter and when she was bathing her daughter, her daughter told her that she has a wound and she wanted me to not to apply soap on her body and when asked specifically where she got wounded, she told that on her private part she got wounded and then inspecting the same the mother of the prosecutrix/victim found that it was swollen and on being asked to the victim/prosecutrix as how she got wounded at that place, she told that Pihu’s grandfather by inserting his finger in her private part gave her wound. After that, the mother of the prosecutrix/victim told the entire incident to her husband, after knowing the said fateful incident, the victim’s mother was not able to hold back her anger and she went straight to the accused/appellant’s house which is in the same vicinity as he was his neighbour and she beaten the accused/appellant by bringing him outside his house. Thereafter, people of the neighbourhood gathered along with the Councilor and they all suggested her that this is very fateful incident, the 8 accused/appellant must go to jail for this and then the matter was reported to the Police Station by them, victim’s mother remained firm in her cross-examination. 13. (PW/01) Father of the prosecutrix/victim also stated that wife and daughter apprised him regarding the fateful incident and then he filed written complaint (Ex. P/01), F.I.R. is Ex. P/02 and he gave consent of internal examination of his daughter vide Ex. P/03 and he admitted his signature on Ex. P/04 and seized Dakhil Kharij Register vide Ex. P/05 and prepared spot map vide Ex. P/06. 14. (PW/08) Dr. Rosalyn R. Ekka examined the prosecutrix/victim and finds that her hymen was ruptured and bleeding was present and regarding signs on her body she opined in her report vide Ex. P/22 by saying that it shows hard and blunt object was forcefully inserted in her vagina. 15. (PW/09) Smt. Sumitra Sharma, independent witness has stated that she saw accused/appellant enticing away the victim/prosecutrix with him and she is unaware of the fact as to where the victim was going to and she further stated that the mother of the victim/prosecutrix did not disclose to her regarding the incident, she told them that she saw the appellant enticing away the victim as the police took her statement after enquiring her. In her cross-examination, she remained firm that she saw the accused/appellant enticing away the victim/prosecutrix. As per deposition of the victim/prosecutrix, the learned trial Court written her apparent age as 04 years and after question and answer recorded her statement, the father and mother of the prosecutrix/victim (PW/01) and (PW/02) have stated that the victim/prosecutrix is aged about 04 years. 16. (PW/03) Mr. Kaushal Sharma, Principal of Victoria Public School, stated that Dakhil Kharij Register of his school is Ex. P/11 and as per this Register, the date of birth of the prosecutrix/victim is 19.12.2014 and he stated that he entered date of birth of the prosecutrix/victim on the basis of her Aadhar Card. 17. So, looking to the statement of father (PW/01) of the prosecutrix/victim, 9 mother (PW/02) of the prosecutrix/victim and Principal Mr. Kaushal Sharma (PW/03) of Victoria Public School, it is evident that the prosecutrix/victim is aged about 04 years at the time of incident and statement of prosecutrix/victim is supported by Dr. Rosalyn R. Ekka (PW/08) who found injuries on private part of the prosecutrix. 18. Section 3 of the Act, 2012 is reproduced hereinbelow for ready reference:- ‘3. Penetrative sexual assault.- A person is said to commit “penetrative sexual assault” if- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person, or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person, or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person, or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.” 19. As per prosecutrix, appellant/accused inserted his finger in her private part, which is supported by the medical report vide Ex. P/22. 20. From the close scrutiny of statement of all witnesses and medical documents, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt against the appellant and rightly convicted him for offence punishable under Sections 363, 366(A) of IPC and under Section 5 (l)/6 of POCSO, under Section 5 (m)/6 of POCSO Act and Section 5 (i)/6 of POCSO Act. 21. As regards sentence we find that the incident took place on 17.10.2018 10 i.e., prior to the amended provisions of POCSO Act which was amended on 16.08.2019. Hon’ble Apex Court in the matter of State of Uttar Pradesh v. Sonu Kushwaha reported in (2023) 7 SCC 475 has held in para 11 which reads as under:- “11. Section 6, as applicable before its substitution on 16.08.2019, read thus: “6. Punishment for aggravated penetrative sexual assault.---Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.” On the date of the commission of the offence, rigorous imprisonment for ten years was the minimum sentence prescribed for the offence of aggravated penetrative sexual assault. From 16.08.2019, the minimum sentence has been enhanced to twenty years. However, the amended provision will not apply to this case as the incident has taken place prior to 16.08.2019. 22. 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 25.06.2018 and as 11 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 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.” 23. In the light of above cited judgments, in the present case also it is clear 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 16.08.2019, the said Section provides for rigorous imprisonment for a term which shall not be less than 20 years. It is clear that the accused/appellant is aged about 48 years and he remained in jail from 20.10.2018 and we find that the interest of justice would be served in the instant case if we reduce the sentence imposed upon him for ten years instead of 20 years. 24. Applying the law laid down by the Hon’ble Supreme Court in the matter of Sonu Kushwaha (supra) and Deepak Verma (supra) since the incident had taken place on 17.10.2018 when the unamended provisions of Section 6 of the POCSO Act were in force, so the present appellant is convicted and sentenced to undergo rigorous imprisonment for a period of 10 years under Section 6 of the POCSO Act. The rest of the conviction and sentence part along with the fine and default stipulation is not interfered with. The conviction of the appellant under Section 363 and 366-A of IPC shall remain affirmed. So, in the interest of justice the accused/appellant shall be entitled to the set-off for the period already undergone by him. All the sentences shall run concurrently. 25. Ex consequenti, the instant appeal is partly allowed with the extent indicated above. 12 26. The appellant is reported to be in jail since 20.10.2018, as such he has been behind the bars for the last 6 years, 9 months and 15 days, therefore, he is entitled for set off of the detention period under section 468 of Bharatiya Nagarik Suraksha Sanhita, 2023. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge U.K. Raju