1 2025:CGHC:9457 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2234 of 2024 • Hemlal Sao S/o Milan Sao Aged About 26 Years R/o Village- Junwani Manjhapara, Police Station- Chakradharnagar, District- Raigarh, C.G. ... Appellant versus • State of Chhattisgarh Through The Station House Officer, Police Station- Chakradharnagar, District- Raigarh, C.G. ... Respondent For Appellant : Mr. Vijay Kumar Sahu, Advocate For Respondent : Ms. Sunita Sahu, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma Order on Board 24/02/2025 1. Today the case is listed for order on application I.A. No.1 of 2024, application of sentence and grant of bail under Section 430 of the BNSS, in-complainace of the order dated 03.02.2025, the parents of the victim is appeared before this Court through video conferencing and they have stated that they have no objection for grant of bail to the appellant. However, with the consent of learned counsel for the parties, the matter is heard finally. VAISHALI LUCKY NAGARIA Digitally signed by VAISHALI LUCKY NAGARIA Date: 2025.03.29 11:49:15 +0530 2 2. This appeal has been preferred against the judgment dated 05.10.2024 passed in Sessions Trial No.34/2024 by the learned Additional Sessions Judge, (FTC), (POCSO), District -Raigarh, Chhattisgarh, whereby the appellant stands convicted and sentenced as under: - No. Conviction Sentence 1. U/s 10 of Protection of Children from Sexual Offences Act, 2012 R.I for 5 years and fine of Rs. 1000/- in default of payment of fine 2 months additional imprisonment. 2. U/s 354 of IPC R.I. for 2 years and fine of Rs.1000/- in default of payment of fine 2 months additional imprisonment. 3. U/s 354-A (1)(i) of IPC R.I. for 1 years and fine of Rs. 500/- in default of payment of fine 1 month additional imprisonment. All the sentences have been directed to run concurrently. 3. The prosecution case in brief is that the mother of the prosecutrix lodged report at Police Station, Chakradharnagar, alleging therein that on 02.05.2024 at about 6.30 PM, the prosecutrix went to shop and while she returning from shop, the appellant touched the chest of the prosecutrix. On the basis of above report, the aforesaid offences were registered against the appellant and upon completion of usual investigation, the charge sheet was submitted before the court below. In order to prove the 3 offence, the prosecution examined as may as 8 witnesses and cited several documents part of challan. The accused denied all the allegations and his statement was recorded under Section 313 of Cr.P.C. where he took a plea that he has falsely been implicated in the case. 4. After completion of investigation, charge-sheet was filed and the trial Court framed the charges under Sections 10 of POCSO, 354 of IPC and U/s 354-A (1) (i) against the appellant. 5. In order to prove the charges against appellant, prosecution examined as many as 8 witnesses. Statement of appellant was also recorded under Section 313 of Cr.PC in which he pleaded innocence and false implication. 6. After completion of the trial, the Trial Court convicted and sentenced the appellant in the manner as described in Para-2 of this judgment. Hence, this appeal. 7. Learned Counsel appearing for the appellant submits that as per prosecution story, age of the prosecutrix was minor at the time of alleged incident, but no authentic documentary proof was filed in order to show that the prosecutrix was a minor girl on the alleged date. Further, learned trial Court has failed to appreciate that the appellant has neither made any criminal force, nor outrage the modesty of prosecutrix. He further submits that the 4 person who has entered the date of birth of prosecutrix in her school record has not been examined to prove the Dakhil Kharij Register. 8. Learned counsel for the appellant submits that learned trial Court has failed to appreciate that the prosecution has not proved the actual age of the prosecutrix. He further submits that the prosecution has not adduced any cogent and reliable evidence to prove the guilt against the appellant. 9. On the other hand, learned counsel for the State supporting the impugned judgment and submits that the prosecutrix was a minor girl on the date of incident and this fact has been duly proved by the prosecution by adducing Dakhil Kharij Register. The act committed by the appellant makes him liable for conviction under Sections 10 of POCSO, 354 of IPC and U/s 354-A (1) (i) Being so, the impugned judgment is strictly in accordance with law and the present appeal is liable to be dismissed. 10. Heard learned counsel for the respective parties and perused the recorded placed on record. 11. In order to consider the age of prosecutrix, this Court has to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon Dakhil Kharij (Ex.P-7) produced by the principal (PW-4) wherein the 5 date of birth of the prosecutrix is mentioned as 21.08.2013 and which was registered on 11.07.2016. 12. In rebuttal to the said documentary evidence, no such evidence has been presented by the appellant side, which could refute the fact of the date of birth mentioned in the said documents. Therefore, this Court finds that legally admissible evidence has been brought by the prosecution to prove the fact that at the time of alleged incident she was undoubtedly minor on the date of incident and her age on the date of incident was approximately 10 years 9 months. 13. Prosecutrix (PW-1) has categorically stated to the police that on the date of incident when she went to shop and while returning from shop, the appellant touched her chest and abused with filthy language. 14. Thus, in view of the fact that the prosecutrix at the time of incident was a minor, the appellant-accused does not get any advantage even if the case of the appellant is accepted to be a case of consent as the consent of a minor would not be of any relevance. As such, it cannot be said that the prosecution has not been successful in establishing the guilt of the appellant beyond the shadow of reasonable doubt in respect of the offence punishable under Section 354 and 354-A (1)(i) of IPC and Section 10 of POCSO Act and, in the circumstances, the trial Court has not committed any 6 manifest error of law and fact in convicting the appellant for the offence punishable under Section 354 and 354-A (1)(i) of IPC and Section 10 of POCSO Act, which deserves to be and is hereby affirmed and maintained. 15. With regard to the sentence in the instant case, incident took place on 02.05.2024, hence, the trial Court ought to have been convicted and sentenced the appellant as per punishment prevailing in the year 2012 for the offence under Section 10 of the POSCO Act, i.e., from 05 years and fine of Rs. 1,000/- in default of payment of fine 2 months additional imprisonment. Considering the aforesaid fact, this Court is of the opinion that it would be in the interest of justice, the sentence imposed upon him i.e. 5 years is reduced to rigorous imprisonment for 3 years. However, fine imposed by trial Court is maintained. 16. The appellant is in jail and he shall serve out the sentence as modified above. 17. With the aforesaid observations, the criminal appeal is partly allowed to the extent indicated hereinabove. 18. Let a copy of this order and the original records be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- (Arvind Kumar Verma) vaishali JUDGE