1 2025:CGHC:19380 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 151 of 2016 Mukesh Kanchhi S/o Late Kamal Kanchhi Aged About 19 Years R/o Purani Basti, Sarkari Para Pendra, Police Station Pendra, District Bilaspur Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Pendra, District Bilaspur Chhattisgarh. ---- Respondent ----------------------------------------------------------------------------------------- For Appellant : Mr. N.K. Malaviya, Advocate through Legal Aid For Respondent-State : Mr. Shailendra Sharma, Panel Lawyer ----------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 29.04.2025 1. Today when the matter is called out for hearing, no one appeared on behalf of the appellant I, therefore, requested for assistance from a Counsel of the High Court Legal Aid Services Committee, Mr. N.K. Malaviya, Advocate has been nominated to assist the Court. 2. I have gone through the judgment under appeal and the depositions of witnesses and exhibits assisted both by Advocate, Mr. N.K. Malaviya 2 through the High Court Legal Services Committee and Learned State Counsel. In view of (2014) 14 SCC 222 (Surya Baksh Singh v. State of Uttar Pradesh), I do not consider it necessary to adjourn this case and issue fresh notice to the Appellant as his interest has been duly taken care of by nominating another Counsel from the High Court Legal Services Committee. 3. The appellant has filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence dated 07.09.2015 (Annexure A-1) passed by the Special Judge (Atrocity), Bilaspur, District Bilaspur (C.G.) in Special Case No.07/2015, whereby the appellant has been convicted and sentenced as under :- Conviction Sentence In Default of Payment of Fine Under Section 354(A) (i) of the IPC RI for 03 years and fine amount of Rs.1,000/- Additional SI for 30 days Under Section 452 of the IPC RI for 03 years and fine amount of Rs.1,000/- Additional SI for 01 month Under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act, 1989 RI for 03 years and fine amount of Rs.1,000/- Additional SI for 30 days Under Section 8 of the POCSO Act, 2012 RI for 03 years and fine amount of Rs.1,000/- Additional SI for 30 days (All sentences are directed to run concurrently) 3 4. Case of the prosecution in brief is that on 24.11.2014, victim (PW-3) was in her house then the appellant entered into her house and try to outrage her modesty and fall down on the ground. After this act of appellant, the victim trying to save herself thereafter, the appellant closed the mouth with the hand and also pressed her neck then on being bitten by the victim the appellant fled away from the spot. 5. On the basis of aforesaid crime, the matter was reported to the police of Police Station Pendra, District Bilaspur (C.G.), whereby the concerned police registered the Crime No.240/2014 for an offence punishable under Sections 354-A, 452 of IPC and Sections 7, 8 of the POCSO and Section 3(1) (xi) Scheduled Caste and Scheduled Tribe (Prevention) of Atrocities Act, 1989 was registered against the present appellant. 6. After completion of investigation, the police has submitted the charge- sheet before the Court of Judicial Magistrate First Class, Bilaspur, District Bilaspur (C.G.), wherein Criminal Case No.336/2015 was registered. The learned Court of Judicial Magistrate First Class, Bilaspur, District Bilaspur (C.G.) committed the case to the sessions trial. 7. The Court of learned Sessions Judge, Bilaspur, District Bilaspur (C.G.) framed the charges under Sections 354-A, 452 of IPC and Sections 7, 8 of the POCSO Act and Section 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the appellant. 4 8. In order to prove the charges against the appellant (accused), prosecution examined as many as 09 witnesses. Statement of appellant was also recorded under Section 313 of CrPC in which he pleaded innocence and false implication. However, the appellant has examined Rakesh Kanchhi (DW-1) in his defence. 9. After appreciation of evidence available on record, learned trial Court has convicted the appellant and sentenced him as mentioned in paragraph 03 of this appeal. Hence this appeal by the appellant. 10. Learned counsel appearing for the appellant contended that the learned trial Court has wrongly been convicted the appellant without any sufficient and clinching evidence available on record against the appellant. He further contended that the learned trial court failed to appreciate that the deposition of PW-1 father of victim he did not specific deposed so there is no intention to outrage of her modesty and as well as insult the victim in absence of such evidence the conviction of the appellant is bad in law. The learned trial court failed to appreciate that the father of victim ( PW-1) did not revealed the incident to any of the neighbours because on the day of incident, he was not seen such incident and no one has seen the incident. He further contended that the learned trial court failed to appreciate that only on the basis of assumption, the present appellant has been convicted and there is hardly any evidence available against the present appellant which connects the involvement of 5 present appellant in the aforementioned crime. The learned trial court has not properly considered the evidence of victim herself the version of victim under section 161 of Cr.P.C. as well as court statement is totally reverse each and other. He further contended that the learned trial court has not properly considered the statement of Doctor who medically examined to the victim. The injury sustained by the victim is simple in nature because the quarrel has been happened they try to save herself thereby the injury has been received. It is therefore prayed that this Court may be pleased to set-aside the impugned judgment (Annexure A-1) and the appellant may be acquitted from the charges lavelled against them. 11. Per contra, learned counsel for the State/respondent opposes the argument raised by counsel for the appellant and contended that there are specific allegations against the appellant that he entered into house of prosecutrix, caught hold of her hand and neck. There are ample material and evidence available against the appellant that he committed the offence as alleged against him. He further contended that the appellant was well aware about social status of prosecutrix being her brother’s friend, hence, it cannot be said that appellant was not aware that prosecutrix is member of the Scheduled Tribes community, therefore, the sentence awarded by the trial Court is just and proper and requires no interference. 12. I have heard learned counsel appearing for the respective parties and 6 perused the record of the trial Court and other material available on record with utmost circumspection. 13. In order to consider the age of the prosecutrix, I have to examine the evidence available on record produced by the prosecution. The prosecution has mainly relied upon the school admission and discharge register of Class 6th of the prosecutrix (Ex.P-4C), where the date of birth of the prosecutrix is mentioned as 16.01.2003. Father of the prosecutrix (PW-1) has stated in his deposition that at the time of incident, her daughter, i.e., prosecutrix was studying in Class 7th. He further stated that at the time of incident, she was aged about 12 years and he does not remember the date of birth of the prosecutrix. 14. Smt. Girija Namdev (PW-2), Teacher in the Kanya Purva Madhyamik Shala, Sarkari Para, Pendra has stated that the prosecutrix had taken admission in Class VI, her Dakhil Kharij No. is 467 (Ex.P-4C), in which her date of birth is mentioned as 16.01.2003. She further stated that the name is entered in the Dakhil Kharij register on the basis of the transfer certificates brought by the student of Class 5th. With regard to her age, prosecutrix stated that at the time of incident, she was studying in Class 7th. 15. Since the age of the prosecutrix has not been specifically challenged by the appellant and from the Ex.P-4C (admission discharge register), in which her date of birth is mentioned as 16.01.2003, the age of the 7 prosecutrix has duly been proved by the prosecution that on the date of incident, i.e., 24.11.2014, she was less than 18 years of age and the learned trial Court has rightly appreciated the evidence to that effect and hold the prosecutrix was minor. 16. The next question for consideration is that whether the accused-appellant was committed sexual assault to the victim? 17. Prosecutrix (PW-3) has stated in her statement that on the date of the incident, she came home from school with her sister. At that time her parents and brother had gone to the field to harvest paddy. She was washing utensils after coming back from school. Her sister had gone to play. Around 4 o'clock, the accused came inside the house and asked for her mark-sheet of the brother. She told him that she doesn't want it, he should ask for it from her mother. After that she took the utensils and went inside the house. Then the accused followed her inside the house and pressed her mouth and made her lie down on the floor. Then he started touching her breast and when the accused pressed her mouth and she bit his hand with her teeth, he fled away from the spot. She further stated in her cross-examination (para-5) that Durgesh and accused studied together and are friends. 18. Father of the prosecutrix (PW-1) has deposed that about three months ago, he, his wife and his son Durgesh had gone to work in the fields after having breakfast. When they returned in the evening, the prosecutrix 8 started crying after seeing them. He asked her why she was crying. She told him that when the utensils were steaming, Mukesh-accused had come and sat under the shade. She also told that when she went inside with the utensils, Mukesh also came inside and asked for her brother's result, he said that when her brother comes, then he will take the result. She told that the accused tied her mouth and tried to make her lie down, then she cut off his thumb and he left her and ran away from the spot. 19. It is pertinent to mentioned here that FIR (Ex.P-1) was lodged by father of the prosecutrix (PW-1), but there is no mentioned with regard to accused has touched the breast of the victim. It is also pertinent to mention here that father of the victim (PW-1) did not disclose the above fact. 20. In order to consider the caste of the prosecutrix, I have to examine the evidence/material placed on record by the prosecution. It is well established from the statements of the victim and other witnesses and Ex.P/2, the prosecutrix belongs to Bhariya castes which falls under the scheduled tribes community. 21. In order to consider the medical report of prosecutrix, I have to examine the evidence available on record produced by the prosecution. The prosecutrix was medically examined by Dr. S.K. Kanwar (PW-4) who gave medical report Ex.P/6. According to this witness, on 27/11/2014 at 4.20 p.m. he examined the injuries of the prosecutrix and found a red scratch of 0.2 x 0.2 cm below her nose 9 hole and pain in the front part of the neck. These injuries were found to have been caused by hard and blunt objects within 65 to 75 hours of the incident and the nature of the injuries was found to be simple in nature. 22. On perusal of the FIR (Ex.P-1) aw well as statement of the prosecutrix recorded under Section 164 of CrPC, it reveals that the accused-appellant has not committed sexual assault upon the prosecutrix, but on perusal of statement of the witnesses and evidence available on record, it is undisputed fact that on the date of incident, the accused-appellant entered the house of the prosecutrix with the intent to outrage her modesty and after entering, pressed her mouth and throat as aforesaid used criminal force and outraged her modesty. 23. In so far as the conviction under Section 8 of the POCSO Act is concerned, it attracts sexual assault and the definition of sexual assault has been explained in Sections 7 and 8 of the POCSO Act which is crucial for consideration with regard to the touching of the breasts of the victim-girl by the accused herein with an intention of sexual assault. The same is reproduced herein-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 10 commit sexual assault. 8. 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." 24. As per FIR (Ex.P-1) and submission of the father of the victim, it is established that the accused tied the mouth of the victim and tried to make her lie down, then she cut off his thumb and he left her and ran away from the spot. Therefore, Section 7 of the POCSO Act would not be applicable, hence, conviction under Section 8 of the POCSO Act is bad in law. However, prosecution has able to prove that the accused has sexually harassed the victim and press her mount and tried to lie down on the floor, therefore, it is proved that the appellant has outraged the modesty of the victim and sexually harassed her, therefore, conviction under Section 354(A)(i) of IPC is maintained and accused is liable for conviction under Section 12 of the POCSO Act instead of Section 8 of the POCSO Act. 25. From perusal of the records, it transpires that the learned trial Court after considering the material available on record and evidence of the prosecution witnesses, convicted and sentenced the appellant for the aforesaid offences. Considering the material available on record and the evidence adduced by the prosecution, I am of the view that the trial Court did not commit any illegality or infirmity in recording the findings as 11 regards conviction of the appellant for the aforesaid offences. 26. Looking to the entire evidence adduced by the prosecution, in considered opinion of this Court that the trial Court has rightly convicted the appellant for the aforesaid offences. I do not find any infirmity or illegality in the impugned judgment of the trial Court. Thus, conviction of appellant is hereby affirmed/maintained. 27. As regards the quantum of sentence, considering that incident in question took place in the year 2014 and at present, he is on bail. During these years, appellant must have suffered tremendous mental trauma and anguish of trial. Looking to the evidence available on the face of record, The appellant has already undergone almost 10 months of substantive sentence imposed by trial Court, this Court is of the opinion that sentence imposed by trial Court upon the appellant (RI for 03-03 years) appears to be on higher side. So keeping in view all the circumstances, mentioned above, ends of justice will be served if the sentence imposed upon appellant is reduced from RI for 03-03 years to RI 01-01 year. All the sentences are directed to run concurrently. 28. In the result, appeal is allowed in part. Conviction of the appellant is maintained/affirmed while reducing the sentence from RI for 03-03 years to RI for 01-01 year and the fine amount imposed by the trial Court upon the appellant shall remain intact, in default of payment of fine amount, appellant shall further undergo simple imprisonment for 01-01 month. 12 29. With the aforesaid observations, the instant appeal is partly allowed to the extent shown above. 30. Records of the Court below be sent back along with copy of this judgment for information and necessary compliance. Sd/- (Arvind Kumar Verma) Judge Vasant