1 2025:CGHC:60857 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 884 of 2022 Judgment Reserved on 4-11-2025 Judgment Pronounced on 15-12-2025 Rohit Chauhan S/o Mangal Chauhan Aged About 19 Years R/o Bhupdevpur, Police Station Bhupdevpur, District : Raigarh, Chhattisgarh ... Appellant versus The State Of Chhattisgarh Through The Police Station Bhupdevpur,, District : Raigarh, Chhattisgarh ... Respondent (Cause title, as taken from CIS) --------------------------------------------------------------------------------------------- For Appellant : Mr. Punit Ruparel, Advocate. For Respondent : Ms. Prabha Sharma, Panel Lawyer. -------------------------------------------------------------------------------------------- Hon'ble Mr. Justice Naresh Kumar Chandravanshi CAV Judgement 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 20.05.2022 passed by the Additional Sessions Judge/ Fast Track Special Court (POCSO), Raigarh, District Raigarh (C.G.) (henceforth referred to as ‘the FTSC’) in Special Criminal Case Under the POCSO Act No. 63/2019 whereby the appellant/accused has been convicted and sentenced in following manner :- Digitally signed by AVANISH KUMAR PATHAK Date: 2025.12.16 10:35:27 +0530 2 Conviction Sentences Under Section 354 of IPC R.I. for 3 years and fine of Rs.1,000/-, in default of payment of fine amount, to undergo additional R.I. for three months Under Section 8 of POCSO Act R.I. for 3 years and fine fo Rs.1,000/-, in default of payment of fine amount, to undergo additional R.I. for three months. Both the jail sentences were ordered to run concurrently. 2. Case of the prosecution, in brief, is that victim lodged a written complaint in the police station Bhupdevpur alleging therein that on 28.11.2019 at about 4.00 pm, when she was returning home alongwith her sister and her friend and they had reached near Datar Mazar, then all of a sudden, the appellant got down from his friend's vehicle and came towards her, restrained her saying “I Love You”, also held her hand with intent to insult her and pulled her towards him. When she asked why he was doing so, he started abusing her. At that time, victim's younger sister and her friend intervened in the matter and due to fear, they went inside the Datar Mazar. After some time, victim along with her sister and friend returned home and narrated the entire incident to her mother and, thereafter, her mother called her father and told him about the incident and then, victim along with her father came to police Station and written report (Ex.P-1) was lodged against the appellant, based on which, FIR (Ex.P-2) was registered against him under Sections 354 & 294 IPC and Section 8 of the Protection of Children From Sexual Offences Act, 2012 (henceforth referred to as ‘the POCSO Act’). Statement of the witnesses were recorded. Documents related to the age of the victim were seized. Statement of 3 victim was recorded under Section 164 Cr.P.C. before the concerned Judicial Magistrate. Appellant was arrested. After completion of investigation, charge sheet under Sections 354, 294, 341 of the IPC and Section 8 of the POCSO Act was filed against the appellant before the concerned Magistrate. 3. Learned FTSC framed charges under Sections 354 & 294 of IPC and Section 8 of the POCSO Act against the appellant, who abjured the guilt and claimed trial. 4. So as to hold accused/appellant guilty, the prosecution examined as many as 8 witnesses. Statement of the appellant/accused was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution evidence, pleaded innocence and false implication. Appellant has not examined any defence witness in support of his case. 5. The FTSC, after appreciating oral and documentary evidence available on record, by its impugned judgment dated 20.05.2022, acquitted appellant for the offence under Section 294 of the IPC, but convicted him for the offence under Section 354 IPC and Section 8 of the POCSO Act and sentenced him, as mentioned in opening paragraph of this judgment. Being aggrieved and dissatisfied with the same, instant criminal appeal has been preferred by the appellant questioning the same. 6. Learned counsel appearing for the appellant would submit that, the victim has been held to be minor by the FTSC only on the basis of her Dakhil Kharij register (Ex. P-5) and mark sheets of Class 8th (Article A- 1) and 9th (Article A-2) but, neither the same have been proved in 4 accordance with law nor it has been proved by the prosecution that on the basis of which document, said date of birth i.e. 15-6-2005 was recorded in the school record whereas, father of the victim has stated in his cross-examination that, birth year of the victim is 2003. Despite that, she has been held minor by learned FTSC. It is further submitted that, the allegation against the appellant is that he assaulted victim with sexual intent by holding her hand and by saying her “I Love You”, whereas, saying “I Love You” itself is not an offence of sexual assault as defined in Section 7 of POCSO Act. He further submits that, though independent witness i.e. victim's friend (PW-8) was present at the place of occurrence, but she has not stated that appellant was using which filthy language against the victim and she has also not supported the deposition of victim that appellant had held her hand. Though, sister of victim (PW-4) is also said to be present at the place of occurrence and she has stated that appellant had held hand of victim, but she is interested witness, as she is sister of victim. Hence, on the basis of such statements of victim and interested witness, it cannot be held beyond reasonable doubt that appellant had held hand of victim with sexual intent. Despite that, learned FTSC has convicted & sentenced the appellant for the aforesaid offence, which is perverse and contrary to the evidence available on record. Hence, it is prayed that the impugned judgment deserves to be set aside and the appellant may be acquitted of the alleged charges. Learned counsel for the appellant placed reliance on the decision of coordinate bench of this Court in the case of State of Chhattisgarh Vs. Rupendra Das Manikpuri (Acq.Appeal No. 215/2022 decided on 22-7-2025), and 5 decision of Maharashtra High Court, Nagpur Bench, in the case of Ravindra Vs. State of Maharashtra (Criminal Appeal No. 471/2017 decided on 30-6-2025). 7. Per contra, learned counsel for the State while opposing the submission made by learned counsel for the appellant would submit that victim (PW-1), her sister (PW-4) and her friend (PW-8), who were present at the place of occurrence, have specifically stated that the appellant not only abused the victim in filthy language but also held her hand with sexual intent. Victim and her sister have specifically proved that appellant was saying to victim “I Love You” and thereby molested her, hence, impugned judgment of conviction of appellant is well reasoned judgment, based on evidence available on record, hence, the appeal is liable to be rejected. 8. I have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and went through the record of FTSC with utmost circumspection. 9. As per the case of prosecution, the victim was minor on the date of incident. The FTSC has held the victim minor on the basis of her Dakhil Kharij register (Ex. P-5-C) and her mark sheets of Class 8th and 9th , in which her date of birth is mentioned as ‘15-6-2005’. The victim (P.W. 1) has also stated that her date of birth is ‘15-6-2005’, but her mother (P.W. 3), her sister (P.W. 4) and her father (P.W. 5) have not stated her date of birth, rather, as per her mother and father, the victim was 16 years of age at the time of recording of their statement in the month of September/October, 2021. During the course of examination, on being shown the mark sheets of the victim, when the father (P.W. 5) of the 6 victim was asked, then he has stated in para 5 that, year of birth of the victim was 2003, whereas in her mark sheets (Article A-1 and A-2) and school record, her birth year has been mentioned as ‘2005’. Thus, from aforesaid contradictory facts appeared with regard to birth year of the victim, it cannot be held beyond reasonable doubt that, date of birth mentioned in the school record of victim ‘15-6-2005’ is her exact date of birth. Further, it has also not been proved that on the basis of which document, date of birth of victim has been recorded in the school record. Therefore, the finding recorded by learned FTSC holding the victim minor on the date of incident is not sustainable. In other words, the prosecution has failed to prove beyond reasonable doubt that, the victim was minor on the date of incident. Hence, the finding of learned FTSC holding the victim minor on the date of incident is set aside. 10. Since the finding of learned FTSC that the victim was minor on the date of incident, has already been set aside, therefore, conviction and sentence of the appellant under Section 8 of the POCSO Act is not sustainable. 11. So far as conviction of the appellant for the offence under Section 354 of the IPC and Section 8 of the POCSO Act is concerned, the victim (P.W. 1) has stated in her deposition that, on the date of incident at about 4.00 pm, when she was returning from her school to home along with her younger sister and friend, the appellant came on a vehicle, held her hand by saying ‘ म तुमसे यार करता हूँ, I Love you’. When she raised objection, then he abused her. Her sister and friend protected her. Thereafter, they went inside a Mazar under fear. Her statement also gets support from her younger sister (P.W. 4) and 7 friend (P.W. 8) who were present on the spot. Her mother (P.W. 3) and her father (P.W. 5) have also supported aforesaid fact, whom the victim told about the incident. 12. The victim (P.W. 1), her sister (P.W. 4) and friend (P.W. 8) have admitted that, there was crowd at Mazar, but no independent witness has been examined by the prosecution, however, only on this count, aforesaid deposition of the victim cannot be discarded as it has also been supported by her sister (P.W. 4) and friend (P.W. 8). They have denied negative suggestion about aforesaid fact taken by the defence counsel in their cross-examination. 13. Younger sister (P.W. 4) of the victim and her friend (P.W. 8) have also stated in their deposition that, after holding hand of the victim, the appellant pulled her towards him saying ‘I love you’. Though, the victim (P.W. 1) has not stated in her deposition that, the appellant/accused had pulled her towards him, but this fact was stated by her in the written complaint Ex. P-1, therefore, the omission of aforesaid fact in her deposition will not weaken the prosecution’s case. Nothing has been elicited in cross-examination of the victim (P.W. 1), her sister (P.W. 4) and her friend (P.W. 8) that, while returning home, the appellant had not held hand of the victim and pulled her towards him by saying ‘I love you’. 14. The moot point to be considered in instant case is, as to whether the above act of the appellant constitute an offence under Section 354 of the IPC. Section 354 of the IPC reads thus :- “354. Assault or criminal force to woman with intent to outrage her modesty. -Whoever assaults or uses 8 criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 15. A bare perusal of aforesaid provision shows that, it makes penal the assault or use of criminal force to any woman, to outrage her modesty. The essential ingredient of offence under Section 354, IPC are : I. that, the assault must be on a woman; ii. that, the criminal force must have been used on woman; and iii. That, the criminal force must have been used on the woman intending thereby to outrage her modesty. 16. While considering the word ‘modesty’ used in aforesaid provision, Hon’ble Supreme Court in the case of Raju Pandurang Mahale v. State of Maharashtra, (2004) 4 SCC 371 has held in paras 12, 13, 14 and 15 as under :- “12. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, 9 is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word “modesty” is not defined in IPC. The Shorter Oxford Dictionary (3rd Edn.) defines the word “modesty” in relation to a woman as follows: “Decorous in manner and conduct; not forward or lewd; Shamefast; Scrupulously chaste.” 13. Modesty is defined as the quality of being modest; and in relation to a woman, “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct”. It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patteson in R. v. James Lloyd [(1836) 7 C&P 317 : 173 ER 141] : In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which 10 would show that he was just going to have sexual connection with her. 14. Webster's Third New International Dictionary of the English language defines modesty as “freedom from coarseness, indelicacy or indecency : a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.), the meaning of the word “modesty” is given as “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions”. 15. In State of Punjab v. Major Singh [AIR 1967 SC 63 : 1967 Cri LJ 1] a question arose whether a female child of seven-and-a-half months could be said to be possessed of “modesty” which could be outraged. In answering the above question the majority view was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the “common notions of mankind” referred to have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of “modesty” and the interpretation given to that 11 word by this Court in Major Singh case [AIR 1967 SC 63 : 1967 Cri LJ 1] the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] . When the above test is applied in the present case, keeping in view the total fact situation, the inevitable conclusion is that the acts of the accused- appellant and the concrete role he consistently played from the beginning proved combination of persons and minds as well and as such amounted to “outraging of her modesty” for it was an affront to the normal sense of feminine decency…..” 17. Having considered aforesaid interpretation of ‘modesty’ by Hon’ble Apex Court, if the evidence of instant case is considered, then it is found that, in instant case, the appellant not only held hand of the victim, rather he also pulled her towards him by saying ‘I love you’. Such behaviour of a young boy with any girl particularly of rural area is considered highly objectionable. Because of such objectionable and unbecoming behaviour of the appellant, the victim (P.W. 1), her sister (P.W. 4) and her friend (P.W. 8) got scared and went inside a Mazar. Therefore, the act done by the appellant with the victim very much falls under the offence under Section 354 of the IPC as it was done by him to outrage modesty of the victim. In the case of State of Chhattisgarh 12 Vs. Rupendra Das Manikpuri (supra), accused shouted while expressing his love, saying victim “xxxx, I love you (sign, xxxx denotes name of prosecutrix), the accused did not assault victim or held her hand, in such situation, learned Single Judge held that, alleged expression of accused alone would not constitute sexual assault as provided under Section 7 of the POCSO Act. But in instant case, the appellant accused not only said ‘I love you’, but also held her hand and pulled her towards him by saying ‘I love you’, therefore, aforesaid judgment does not stand in support of appellant accused herein. 18. Another case laws relied upon by learned counsel for the appellant in the case of Ravindra Vs. State of Maharashtra (supra) also does not come in rescue of appellant/accused herein as in aforesaid case, the accused was convicted for offence under Section 354-A(i) of the IPC, but in instant case, appellant has not been charged and convicted for aforesaid offence, rather he has been convicted for the offence under Section 354 of the IPC. 19. In view of above discussion, it is found that, conviction of the appellant for the offence under Section 8 of the POCSO Act is not sustainable as the prosecution has failed to prove the victim minor on the date of incident, but learned FTSC has not committed any mistake in holding him guilty for the offence under section 354 of the IPC. Hence the same is affirmed. 20. Learned FTSC sentenced the appellant/accused for 3 years’ RI for offence under Section 354 of the IPC, which seems to be disproportionate to the facts of the case, as he only held the hand of the victim and pulled her towards him by saying ‘I love you’. Apart from 13 this, no other objectionable act was done by him. The appellant was a young boy of 19 years at the time of incident. Therefore, instead of upholding sentence of appellant for 3 years RI, ends of justice would be served if his jail sentence is reduced from 3 years’ RI to 1 year’s RI. 21. Consequently, this appeal is partly allowed. Conviction and sentence of the appellant for the offence under Section 8 of the POCSO Act, imposed by the FTSC vide impugned judgment is set aside. However, his conviction under Section 354 of the IPC is upheld but his jail sentence of 3 years’ RI imposed by the FTSC vide impugned judgment for aforesaid offence, is modified and he is sentenced to undergo RI for one year. Fine sentence, default stipulation and other terms of the impugned judgment shall remain intact. 22. The appellant is reported to be on bail. He is directed to surrender before concerned Court forth with to undergo the remaining part of jail sentence, if any. 23. Record of the concerned FTSC along with a copy of this judgment be sent back forthwith for compliance and necessary action. Sd/- (Naresh Kumar Chandravanshi) Judge Pathak/-