1 2025:CGHC:10140 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1629 of 2024 1 - Damodar Nayak S/o Virendra Nayak Aged About 23 Years R/o Nayakpara B.C. Para Sonpur, Police Station- Biyompur (Odisha), Present Address- Rental House Of Babulal Nayak, Bapunbar, Police Station- City Kotwali Raigarh, District- Raigarh, C.G. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station- Kotra Road, District- Raigarh, C.G. ... Respondent(s) For Petitioner(s) : Ms. Maya Chaturvijani, Advocate For Respondent/State : Ms. Sunita Manikpuri, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 28/02/2025 This criminal appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment dated 09.05.2024 passed by the learned Additional Sessions Judge, FTSC District Raigarh (C.G.) in Special Criminal Case (POCSO Act) No. 43 of 2023, by which the 2 appellant has been convicted and sentenced as under : Conviction Sentence U/s. 363 IPC To undergo RI for 1 year and fine of Rs. 500/-, in default of payment of fine to further undergo RI for 1 month U/s. 342 IPC To undergo RI for 6 months and fine of rs. 500/- in default of payment of fine to further undergo RI for 1 month U/s. 354 IPC To undergo RI for 1 year and pay fine of R. 500/-, in default of payment of fine to further undergo RI for one month U/s. 10 of the POCSO Act To undergo RI for 5 years and fine of Rs 500/-, in default of payment of fine to furthr undergo RI for one month. All the sentences are ordered to run concurrently. 2. Case of the prosecution, in brief, is that report was lodged by the mother of the prosecutrix at Police Station Kotra Road alleging that that his daughter is found missing since 23.07.2023 at 7.30 am. and that some unknown person had allured her. On the basis of the said report, FIR was registered against unknown person for the offence under Section 363 IPC. During investigation, on 23.07.2023, the prosecutrix was found in a room locked at Cleaning Store of Shramik Vihar Colony and that some unknown person had locked her over there. Seizure panchanma was prepared and she was recovered. She was medically examined by the lady doctor and the statement of the prosecutrix was recorded, accused/appellant was taken into custody and he was interrogated and the key wa seized and offence under Sections 342,354 IPC and Sections * and 10 of the POCSO Act was registered and after due formalities, the appellant was arrested. Statement of the mother of the prosecutrix under Section 164 Cr.P.C. w registered and the victim was sent for counselling to Child Welfare Committee. The 3 date of birth certificate was seized vide Ex.P-6& 7 and the clothings of the prosecutrix were also seized. Spot map was prepared and after completion of the investigation, charge sheet was filed against the accused under Sections 363,342,354 IPC and Sections 8 & 10 of the of the POCSO Act before the learned Additional Session Judge, District Raigarh (C.G.) and the case was registered as Special Criminal Case (POCSO Act) No. 43 of 2023. The statements of witnesses were recorded. 5. Learned trial Court framed charges for the offences punishable under Sections 363,342,354 of the IPC and Section 10 of the POCSO Act read over and explained to the accused, who abjured his guilt. 6. In order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 26 documents in support of case of the prosecution. The appellant has neither examined any witness in his defence nor exhibited any document. 7. Statement of accused was recorded under Section 313 of the Cr.P.C. in which he denied all the circumstances appearing against him and stated that he is innocent and has been falsely implicated. The defence has neither examined any witness nor has exhibited any document. 8. The trial Court upon appreciation of oral and documentary evidence on record and considering that it is the appellant who have committed aforesaid offence, convicted and sentenced him in the aforementioned manner, against which the appeal under Section 374(2) of the Cr.P.C. has been preferred by the accused/appellant. 9. It has been argued by the learned counsel for the accused/appellant that the prosecution witnesses have made 4 contradictory statements and there are so many omissions and improvements in their statements and as such the same do not inspire confidence so as to convict the appellant. He further argued that the FIR has been registered against unknown person and the appellant has been falsely implicated in the present case. He also argued that except victim there is no credible evidence in support of her statement even deposition of her father is based on information given by victim and medical evidence also does not corroborate, therefore, only on the basis of deposition of victim holding guilty to the appellant by the learned trial Court is not sustainable. The learned trial Court has failed to see that the appellant was not identified by the witnesses also. He further submitted that the evidence of the doctor shows that the appellant has been falsely implicated in this case. The offene against the appellant has not been proved beyond reasonable doubt. The learned trial Court had not considered the whole evidence in its totality and only appreciated the evidence of victim (PW-1). 10. On the other hand, learned State Counsel opposed the submissions of learned counsel for the appellant and submitted that the offences committed by the appellant were heinous in nature and thus, the trial court had rightly convicted him. He submitted that the trial Court had considered all the arguments made by the appellant and there was sufficient evidence to prove his guilt beyond a reasonable doubt. Moreover, the victim was minor and aged about 12years 09 months and 25 days at the time of incident which is proved by the birth certificate (Article A-1 and A-2) of the victim which contains the date of birth of the victim as 28.09.2010, as such, it is not possible for her to recognize the name of the accused, therefore, FIR has been lodged against the 5 unknown person, but the accused appellant was duly identified by the victim. The evidence of the victim need not be required for any corroboration and on the sole testimony of the victim the conviction can be made. Therefore, there is no illegality or infirmity in the findings of the learned trial Court and the impugned judgment of conviction and order of sentence needs no interference. 11. Heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the learned trial Court with utmost circumspection and carefully as well. 12. As per case of the prosecution, date of birth of victim girl was 28.09.2010 and date of incident was 23.07.2023, as such, on the date of incident, age of the victim girl is 12 years, 9 months and 25 days. Aforesaid date of birth of victim girl has also been stated in the school birth certificate (Article A-1 and 2). 11. Mother of the victim (PW-2)has deposed in her court statement that at the time of incident, age of the victim was 12 years & 9 months & 25 days. The prosecutrix was mentally retarded and she does not go to school. She is unable to speak and use to talk through gestation. Father of victim girl (PW-5) has deposed that his daughter is mentally retarded and therefore she does not go to school and lives at home. On the date of incident, she was at his work place, when his wife informed him that prosecutrix is missing and thereafter missing report was lodged by him at police station. He has stated that when the proseuctirx was recovered, at that time, her clothes were torn. Though, it is settled proposition of law that date of birth mentioned in Dakhil kharij registered is not the conclusive proof in this regard. But, on the basis of 6 statements of PW-2 –mother of victim, Dr. Shubhra Mahilange (PW-8), who medically examined the victim girl and assessed her age as 13 years. She has opined that there were no external injuries found on the private parts. She was referred to psychiatrist for mental health, pediatrician and to the radiologist for age determination. The trial Court has also noted her apparent age 13 years, even, in respect of ossification test report also, margin of three years is possible, therefore, having considered the aforesaid facts, it is found that on the date of incident, victim was minor i.e. below the age of 18 years. But since there is no conclusive proof to hold that she was below 12 years of age, therefore, in view of above discussion, it is found that though the victim was minor on the date of incident, but it has not been proved by the prosecution beyond reasonable doubt that she was below the age of 12 years on the date of incident, therefore, finding recorded by the trial Court that age of the victim was below 12 year on the date of incident is set aside, but it was upheld to the extent that she was minor at that time. 12. In the present case, the appellant had taken the victim who is a physically challenged girl from the legal guardianship and locked her in a room and therefore he has been convicted for the offence under Sections 342 and 354 IPC. This section deals with assault or use of criminal force with the intention to outrage a woman's modesty. This indicates that the action taken by the accused, while not necessarily sexual, were considered inappropriate and likely to outrage the victim's modesty. 7 14. Further Section 10 of the POCSO Act deals with aggravated sexual assault. This Court had set aside the finding of trial court because it found that the allegations did not establish the essential ingredient of sexual intent required for the offence. Neither the doctor who had examined the victim girl has given any opinion nor there is any report filed by the prosecution before the trial court that on the date of incident, the victim was mentally or physically disabled. 15. However, regarding the charge under Section 10 of the POCSO Act, the Court noted that an essential ingredient ‘sexual intent’ in POCSO cases was absent. While there was no explicit allegation of sexual intent or overtly sexual conduct by the appellant. Therefore, it is concluded that no prima facie case for aggravated sexual assault was established against the appellant. 16. The case involved a physically disabled girl, which adds a layer of vulnerability and sensitivity to the matter. The doctor who had medically examined the victim girl did not found any injury on her body, which also gets support from medical report (Ex.P-15) prepared by her. Thus, medical evidence is not supportive to the deposition of victim. But since it is not a case of prosecution itself that victim has sustained injuries, therefore, such medical report does not adversely affect the case of prosecution. 17. Except the parents of the victim girl, other witnesses examined by the prosecution are formal witnesses, and not related to the substantive facts. It is settled proposition of law that if deposition of victim girl is unblemished and inspire confidence of the court, then conviction can be based on it. In the instant case, nothing has been elicited in cross- examination the mother of the victim (PW-2) to disbelieve the statement 8 of victim with regard to abducting her from the lawful guardianship and keeping her locked in a room with sexual intent by the appellant, therefore, I do not find any illegality or infirmity in the finding recorded by the trial Court that the appellant has committed the offence. 18. The act of sexual assault perpetrated on the minor victim by the appellant has not been proved by the prosecution. Thus, this act of appellant does not fall under the offence of aggravated sexual assault, particularly when the prosecution has failed to prove the fact that at the time of incident, victim was below the age of 12 years and other ingredients of Section 10 of the POCSO Act has also not been proved. Therefore, conviction of appellant for the offence of aggravated sexual assault is not found to be as per the law and evidence available on record, as such, on the basis of aforesaid proven fact that the appellant / accused had sexually assaulted the victim girl, however, he had abducted the minor girl from her lawful guardianship and kept locked in a room, might be with a sexual intent therefore, offence of sexual assault with sexual intent is very much proved against the appellant. Hence, the offence under Section 8 of the POCSO Act, is proved against the appellant. 19. Thus in view of the aforesaid discussion, this Court is of the considered opinion that the conviction of the appellant under Sections 363,342 and 354 of the IPC imposed by the trial court is upheld and Section 8 of POCSO Act proved therefore he is convicted under Section 8 of the POCSO Act instead of Section 10 of the said Act. , but considering the provisions contained in Section 42 of the POCSO Act and further that the victim was minor on the date of incident, the appellant is sentenced to three years from that of 5 years under Section 9 8 of the POCSO Act. The other direction of the impugned judgment of the trial Court shall remain intact. 20. The appellant is stated to be in jail. He is directed to serve out the sentence as modified above. 21. The criminal appeal is thus, partly allowed. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.24 13:11:07 +0530