1 2025:CGHC:8222 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 20 of 2016 Golok @ Golak Haldar S/o Gagan Haldar Aged About 20 Years R/o P.V. 94, Thana Bande, Distt. Uttar Bastar Kanker Chhattisgarh. , Chhattisgarh ... Appellant versus The State Of Chhattisgarh Through Police Station Bhanupratappur, District Uttar Bastar, Kanker Chhattisgarh. , Chhattisgarh ---- Respondent (Cause title taken from Case Information System) For Appellant : Mr. Parag Kotecha, Advocate For Respondent/State : Ms. Isha Jajodia, Panel Lawyer Hon'ble Shri R avindra Kumar Agrawal, Judge Judgement on Board 17/02/2025 1. The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (in short ‘CRPC) has been filed by the appellant against impugned judgement of conviction and sentence dated 16.12.2015, passed by learned Additional Sessions Judge/Special Additional Sessions Judge for trial of the Protection of Children from Sexual Offences, Bhanupratappur, Kanker (C.G.), in Special Sessions Case No. 71 of 2015, whereby the appellant has been convicted and VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.05.14 17:50:13 +0530 2 sentenced in the following manner:- Conviction Sentence U/s. 354 of IPC R.I. for 05 years with fine of Rs. 2500/-, in default of payment of fine additional R.I. for 03 months. U/s. 8 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) R.I. for 05 years with fine of Rs. 2500/-, in default of payment of fine additional R.I. for 03 months. Both the sentences are directed to be run concurrently 2. The brief facts of the case are that on 22.06.2015, the mother of the victim/PW-7 lodged a report (exhibit P-6) that a few days back her minor daughter complained about pain and irritation on her private part and she disclosed that at the time of inauguration of Kali Mandir, the appellant forcefully committed sexual intercourse with her and threatened her that if she disclose the incident to anyone, he would kill her. She disclosed it to her husband and after consulting with other family members, she lodged the report. The police have registered the offence under Sections 376(2)(i) and 506 of IPC and Section 6 of POCSO Act. The victim was sent for her medical examination to Government Hospital, Durgukondal, where she was medically examined by PW-1/Dr. Bhagyalaxmi Kosma, who after her medical examination, gave report (exhibit P-1). With respect to the age and date of birth of the victim, the police have seized the school register from St. Joseph Higher Secondary School, Narayanpur vide seizure memo (exhibit P-12) and after retaining its attested true copy (exhibit P-2), the original register was returned back to the school. The spot 3 map (exhibit P-5) was prepared by the Patwari and exhibit P-8 was prepared by the police. The appellant was arrested on 30.06.2015 and he too was sent for his medical examination to Government Hospital, Bhanupratappur, where he was medically examined by PW-4/Dr. Akhilesh Dhruv, who after his medical examination, gave report (exhibit P-3) and found him able to sexual intercourse. Statement of the witnesses under Section 161 of CRPC and statement of victim under Section 164 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed before the learned trial Court against the appellant for the offence under Sections 376(2)(i) and 506 of IPC and Section 6 of POCSO Act. 3. The learned trial Court has framed charge against the appellant for the offence under Section 376(2)(i) of IPC and Section 6 of POCSO Act. The appellant denied the charge and claimed trial. 4. In order to prove the charge against the appellant, the prosecution has examined as many as 10 witnesses. Statement of the appellant under Section 313 of the CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the case. 5. After appreciation of oral as well as documentary evidence, led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of the judgment, hence this appeal. 4 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses and their evidence cannot be made basis to convict the appellant in the offence in question. There is no legally admissible evidence with respect to age and date of birth of the victim. The school register has not been proved by the prosecution in accordance with law. The appellant is the cousin brother of the victim and the dispute was going on between the mother of the appellant and the mother of the victim. The report has been lodged after about 02 months of the incident, which itself creates doubt the genuineness of the complaint. No injuries have been found on the body of the victim. The exaggerated statement made by the prosecution witnesses, which cannot be relied upon for conviction of the appellant. The evidence of prosecution witnesses suffers with the material omissions and contradictions and therefore, the appellant is entitled for acquittal. 7. Per contra, learned counsel appearing for the State opposes the submissions made by learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. There is sufficient evidence against the appellant to convict him in the offence in question. The age of the victim has been proved by the prosecution by leading cogent evidence and the school record available in the case, from which the date of birth of the victim has been proved as 14.09.2004 and she was minor on the date of incident. Further, the age of the victim has not been specifically challenged by 5 the appellant. The nature of allegation against the appellant and the manner in which the victim was subjected to outrage her modesty that too by her cousin brother is serious in nature, and further from the evidence of other witnesses, the guilt of the appellant has duly been proved that the victim was subjected to outrage her modesty by the appellant and the learned trial Court has rightly considered the evidence available on record and has convicted and sentenced him, which needs no interference. 8. I have heard learned counsel for the parties and perused the record of the case with utmost circumspections. 9. The first and foremost question arises for consideration would be the age of the victim, as to whether on the date of incident, the victim was minor and less than 12 years of age or not. 10. The prosecution has mainly relied upon the school register (exhibit P- 2). The school register (exhibit P-2) is sought to be proved by PW-2, who is the Vice Principal of the school. He stated in his evidence that the police have seized the school register with respect to the date of birth of the victim. After retaining its attested true copy, the original register was returned back to him and the attested true copy is exhibit P-2. As per the school register, the date of birth of the victim is 14.09.2004. In cross-examination, he admitted that before entering the date of birth of the victim in the school register, he had not seen her birth certificate. He voluntarily stated that at that time the birth certificate was not required for her admission. He could not remember 6 as to who has informed him the date of birth of the victim. In cross- examination, he has not been cross-examined on the point that the date of birth written in the school register, is false or incorrect. Even, it has not been suggested in his cross-examination that he is not the author of the school register. From the evidence of the victim/PW-6, her mother/PW-7, it has duly been proved that the victim was minor and aged about 9-10 years at the time of incident. The age of the victim has not been cross-examined from these witnesses also, therefore, it is undisputedly proved by the prosecution that the victim was minor and less than 12 years of age at the time of incident. 11. So far as the alleged offence of outraging the modesty of the victim is concerned, I again examined the evidence available on record. PW-6 is the victim of the offence. After verifying her IQ, as provided under Sections 35, 36 and 37 of the POCSO Act, her evidence has been recorded by the learned trial Court. She stated in her evidence that at the time of inauguration of the mandir at Bhanupratappur, she was at her house, her mother had gone to mandir and her father had gone to his duty. The appellant was also there in her house, who is her cousin brother. When she was playing outside of the house, the appellant called her inside, closed the door and then by the act of the appellant, she scared and hide herself under the cot. The appellant pulled her and laid her on the cot and after removing her underwear, committed bad work with her. When she tried to shout, he gagged her mouth and threatened her that if she disclosed the incident to anyone, he would kill her. After some days, she disclosed the incident to her mother. She 7 disclosed the entire incident to the police also and she was being taken to the doctor. In cross-examination, she stated that after 10-15 days of the incident, she disclosed the same to her mother. She disclosed about the bad work to her mother. She admitted that the appellant has committed marpeet also with her. She further stated that, the incident was disclosed by her to her grandmother also. After the incident, the appellant stayed in her house for a day and thereafter, he went away. She did not know about any property dispute between her parents and the parents of the appellant. She admitted that the appellant has committed marpeet with her and except this, he did nothing. When the Court has asked question from her, she explained the bad work as after removing the undergarment, the appellant laying her at different places, which she is saying the bad work. She specifically denied the penetrative sexual assault with her. 12. In the matter of “Attorney General for India v. Satish And Another” 2022(5) SCC 545, the Hon’ble Supreme Court in Para 75 to 84 has held as under:- “75. A plain reading of Section 7 would show that the expression “assault” has a meaning entirely removed from the definition of “assault” in Section 351 of IPC. The latter involves an overt gesture, or preparation by one person, that causes another to apprehend that the former would use criminal force upon the intended victim. The emphasis of Section 7 is to address the felt social need of outlawing behaviour driven by sexual intent. 8 76. The structure of Section 7 can be conveniently parsed in the following manner: “Whoever, i. with sexual intent touches the vagina, penis, anus or breast of the child or; makes the child touch the vagina, penis, anus or breast of such person or any other person, ii. or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” 77. A close analysis of Section 7 reveals that it is broadly divided into two limbs. Sexual assault, under the first limb is defined as the touching by a person - with sexual intent - of four specific body parts (vagina, penis, anus or breast) of a child, or making a child touch any of those body parts of “such person” (i.e. a clear reference to the offender) or of “any other person” (i.e. other than the child, or the offender). In the second limb, sexual assault is the doing of “any other act with sexual intent which involves physical contact without penetration”. 78. The use of the expression "touch" appears to be common, to the first and second parts, of the first limb. “Touch” says the Cambridge Dictionary is “to put your hand or another part of your body lightly onto and off something or someone.” 9 79. Collins Dictionary, likewise, states that: “Your sense of touch is your ability to tell what something is like when you feel it with your hands.” 80. “Contact” on the other hand, which is used in the second limb, has a wider connotation; it encompasses - but is not always limited to – ‘touch’. While it is not immediately apparent why the term ‘physical contact’ has been used in the second limb, its use in conjunction with “any other act” (controlled by the overarching expression “with sexual intent”), indicates that ‘physical contact’ means something which is of wider import than ‘touching’. Viewed so, physical contact without penetration, may not necessarily involve touch. The "other act" involving "physical contact" may involve: direct physical contact by the offender, with any other body part (not mentioned in the first limb) of the victim; other acts, such as use of an object by the offender, engaging physical contact with the victim; or in the given circumstances of the case, even no contact by the offender (the expression "any other act" is sufficiently wide to connote, for instance, the victim being coerced to touch oneself). 81. Parliamentary intent and emphasis, however, is that the offending behavior (whether the touch or other act involving physical contact), should be motivated with sexual intent. Parliament moved 10 beyond the four sexual body parts, and covered acts of a general nature, which when done with sexual intent, are criminalized by the second limb of Section 7. The specific mention of the four body parts of the child in the first limb, and the use of the controlling expression “sexual intent” mean that every touch of those four body parts is prima facie suspect. 82. The circumstances in which touch or physical contact occurs would be determinative of whether it is motivated by ‘sexual intent’. There could be a good explanation for such physical contact which include the nature of the relationship between the child and the offender, the length of the contact, its purposefulness; also, if there was a legitimate non- sexual purpose for the contact. Also relevant is where it takes place and the conduct of the offender before and after such contact. In this regard, it would be useful to always keep in mind that “sexual intent” is not defined, but fact-dependent – as the explanation to Section 11 specifies. 83. The inference by the High Court that “touch” cannot necessarily involve contact with a child’s sexual body parts (in one of these cases, the breast) through clothes, is based on a disingenuous argument. Unsurprisingly, that argument had its roots in other jurisdictions. In Regina v H the UK Court of Appeal, whilst interpreting the words “touching includes (a) with any part of the body; (b) with anything else or (c) through anything, and in 11 particular, includes touching amounts to penetration” per Section 79 (8) of the UK Sexual Offences Act, repelled an argument on that the individual accused of an act in relation to a victim, that involved grabbing “her track-bottoms by the area of the right pocket” was not “touching”. It was observed by the court, that “26…….The opening words of section 79 (8) are “Touching includes touching” and in particular “through anything”. Subsection (8) is not a definition section. We have no doubt that it was not Parliament’s intention by the use of that language to make it impossible to regard as a sexual assault touching which took place by touching what the victim was wearing at that time.” 84. Likewise, in State v. Phipps as well as State v. Pearson, the court had to consider whether a “sex act” or “sexual activity” (criminalised by Section 709.1, 709.3 and 709.17) meant only sexual contact between two or more persons, i.e., through penetration, mouth and genitalia or by contact between genitalia of one person and that of another. In both the judgments, the argument that contact or touch through clothing did not amount to an offence, was decisively rejected. The test indicated (per Pearson) was that prohibited contact occurs when: (i) specified body parts or substitutes touch and (ii) intervening material would not prevent participants, viewed objectively, from perceiving that they had 12 touched. Interestingly, in these decisions one comes across the argument that what is an offence is one that involves direct or “skin to skin” touch or contact.” 13. In the matter of “State of Karnataka v. Shantappa Madivalappa Galapuji and Ors.” 2009(12) SCC 731, the Hon’ble Supreme Court in Para 15 has held as under:- “15. “6….. The Indian Evidence Act, 1872 (in short "the Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease -- whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States (159 US 523). The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. [See Suryanarayana v. State of Karnataka (2001 (9) SCC 129)] 13 7. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] it was held as follows: (SCC p. 343, para 5): "5. ….. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored." The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the 14 records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. The above position was highlighted in Ratansingh Dalsukhbhai Nayak v. State of Gujarat (2004(1) SCC 64).” 14. PW-7 is the mother of the victim, who stated in her evidence that her daughter is aged about 10 years. At about 6-7 months back, she had gone to mandir and her daughter was in her house. The appellant was also come to her house to visit there and after staying for 02 days, he returned back. After some days, her daughter complained about irritation in her private part and when her grandmother came, she disclosed that the appellant committed bad work with her. She was under the impression that the bad work is rape by the appellant, and thereafter she lodged the report (exhibit P-6). In cross-examination, she admitted that after 10-15 days of the incident her daughter has informed about the same. She admitted that she was under the impression that the incident of marpeet is the incident of rape. She 15 further admitted that she has got treated her daughter for infection in her private part. She also admitted that there was a property dispute between her and her sister-in-law. The mother of the appellant is her sister-in-law. 15. PW-8, is the cousin sister of PW-7. She stated in her evidence that the mother of the victim informed about the incident that the appellant has committed bad work with her daughter after removing her clothes. In cross-examination, she stated that she deposed on the basis of the information given by the victim and her mother. She denied that the victim and her mother have not disclosed any incident to her. She further stated that she first time disclosed about the incident before the Court. 16. PW-1, Dr. Bhagyalaxmi Kosma, who medically examined the victim, has stated in her evidence that on 22.06.2015, the victim was brought before her and when she medically examined her, she found that the victim was complaining pain on her private part, but no external injuries have been found. Her report is exhibit P-1. In cross- examination, she admitted that if minor girl would be subjected to forceful sexual intercourse, she would definitely receive injury on her private part. She further admitted that the pain in the private part may also be occurred due to any infection. 17. From these evidences, it has come that the appellant who was the cousin brother of the victim, was present in her house. At that time, they were alone and the appellant outraged the modesty of the victim 16 by laying her down and removing her clothes. From the evidence of the victim/PW-6, it clearly reveals that the victim herself has disclosed the incident to her parents after about 10-15 days. It is not the case that the parents of the victim have tutored her to give statement against the appellant. The defence taken by the appellant that there was a property dispute between the parents of the victim as well as his parents, but what is the nature of property dispute, when the dispute arose, have not been brought on record by the defence. The plain suggestion given by the defence that the property dispute was going on between them, would not suffice to rebut the evidence made in the chief examination of the witnesses that the victim was suffered by the sexual assault by the appellant. 18. From the evidence of the victim/PW-6, it also reveals that the incident of marpeet with the victim has been admitted by the defence, which the victim explained in the question asked by the Court. Although, the victim has disclosed the incident after 10-15 days to her parents and thereafter the report has been lodged on 22.06.2015, but in view of the facts and circumstances of the case, particularly in the case of the victim being a minor girl aged about 9-10 years and she was subjected to sexual assault, the delay in lodging the report does not affect the credibility of the FIR or the evidence of the prosecution witnesses. The defence could not be able to extract any material from the evidence of prosecution witnesses PW-6 and PW-7, so that their evidence can be disbelieved. 17 19. From all these evidences, it is find proved by the learned trial Court that the appellant has committed the offence of outraging the modesty of the victim and she suffered sexual assault by the appellant. The consideration of the learned trial Court in its judgment are based on the proper appreciation of the evidence available on record as well as law applicable to it. 20. Minute examination of the evidence makes it clear that on 28.04.2015, the appellant has committed the offence with the minor victim and outraged her modesty and sexually assaulted her, for which he has rightly been convicted by the learned trial Court and this Court finds no reason to upset the well-reasoned findings of the learned trial Court and this Court hereby affirmed the conviction of the appellant for the offence under Section 8 of POCSO Act. 21. So far as the sentence awarded to the appellant is concerned, Section 354 of IPC is provided the minimum sentence of 03 years imprisonment. Section 7 of the POCSO Act defined the sexual assault and Section 8 of the POCSO Act provided the punishment for sexual assault. It is necessary to quote here the definition of Sections 7 and 8 of the POCSO Act, which reads as under:- “7. Sexual assault.—Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. 18 8. Punishment for sexual assault.—Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.” 22. The learned trial Court has sentenced the appellant for the offence under Section 354 of IPC and Section 8 of POCSO Act for R.I. for 05 years for both the offences. The minimum sentence as provided under Section 354 of IPC is of 01 year, which may extend to 05 years. The minimum sentence as provided under Section 8 of POCSO Act is 03 years, which may extend to 05 years. Under the facts and circumstances of the present case, looking to the age of the appellant and the relationship between the parties, it would meet the ends of justice that the sentence awarded to the appellant for the offence under Section 354 of IPC and Section 8 of the POCSO Act are to be reduced for the minimum sentence provided under the Act. 23. Accordingly, while maintaining the conviction of the appellant for the offence under Section 354 of IPC and Section 8 of the POCSO Act, his sentence is reduced as below:- Conviction Sentence U/s. 354 of IPC R.I. for 01 years with fine of Rs. 2500/-, in default of payment of fine additional R.I. for 03 months. U/s. 8 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) R.I. for 03 years with fine of Rs. 2500/-, in default of payment of fine additional R.I. for 03 months. Both the sentences are directed to be run concurrently 19 24. The fine sentence and default stipulations awarded to the appellant for both the offences by the learned trial Court are remain intact. 25. With the aforesaid modification/alteration of the sentence, the appeal is partly allowed. 26. The appellant is reported to be on bail. He shall be taken into custody for serving his remaining sentence. He is entitled for set-off of his undergone period during the trial as well as during the present appeal. 27. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved