1 2025:CGHC:18475 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1041 of 2024 1 - Aman Chaturvedi S/o Parmeshwar Chaturvedi Aged About 27 Years Caste - Unreserved, R/o Saakeen, Devpuri, Behind Satnam Chowk, Police Station - Tikrapara, District Raipur (C.G.) ... appellant versus 1 - The State Of Chhattisgarh Through Police Out Post - Tikrapara, Police Station - Tikrapara, District Raipur (C.G.) ... Respondent(s) For appellant : Ms. Dyna Bajrang, Advocate along with Ms. Simran Kaur Singh, Advocate For Respondent(s) : Mr. Pranjal Shukla, Panel Lawyer S.B. Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 21.04.2025 1. The appellant has filed the present criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 27/04/2024 passed by learned Addl. Sessions Judge, First Fast Track, Special Court, POCSO, Raipur, in Special Criminal Case (POCSO) 220/2020, whereby the appellant has been convicted for the offence under Section 354 of IPC SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.05.21 12:41:02 +0530 2 and Section 8 of Protection of Children from Sexual Offences Act (hereinafter referred as “POCSO Act”) and sentenced for R.I. for 4 years with fine of Rs. 1000/-, in default of payment of fine further R.I. for two months. 2. Brief facts of the case are that the mother of the victim (PW/2) has lodged a written complaint (Ex. P-2) to the police on 22.10.2020 that on 20-10-2020 her minor daughter has informed her that the appellant who is her neighbour used to call her to his house on the pretext of giving chocolate and used to kiss her and pressed her breast. On 14.10.2020 also at about 1-2 pm, he called her and committed the said offence. When her daughter informed about the incident, she came to lodge the report along with the members of Child line. Based on her written complaint, the FIR (Ex-P/3) was registered against the appellant for the offence under Section 354 of IPC and Section 8 of POCSO act. With respect to the date of birth of the victim, her birth certificate issued by the Municipal Corporation, Dhamatari has been seized vide seizure memo (Ex-P/5). The victim was being sent for her medical examination to the District Hospital, Raipur, where she was examined by the doctor who found no injuries on her body and gave her report Ex. (P-7). Spot map Ex.(P-4) was prepared by the police. Statement of witnesses under Section 161 of Cr.P.C. have been recorded. The appellant was arrested on 24.10.2020. Statement under Section 164 of Cr.P.C. of the victim has also been recorded and after completion of the usual investigation, charge sheet has been filed before the learned trial court, for the offence under Sections 354, 506 (B) of IPC and Section 8 of the POCSO Act. 3 3. The learned trial court has framed the charge under Sections 354-A, 506 of the IPC and Section 8 of the POCSO Act. The appellant denied the charge and claimed trial. On 28/09/2021, the victim has been examined as PW/1 and thereafter on 10.01.2022, the learned trial Court has framed additional charge of Section 376-AB of IPC and Section 5(l) & (m)/6 of POCSO Act, by invoking the provision of Section 216 of the Code of Criminal Procedure as there was allegation that the victim was subjected to rape by the appellant. The charge was amended and the case was fixed for re-cross-examination of the victim and on that day, the appellant was taken into custody and sent to jail. 4. In order to prove the charge, the prosecution has examined as many as 05 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appear against him, pleaded innocence and submitted that he has been falsely implicated in the offence. One defence witness has also been examined by the appellant in his defence. 5. After appreciation of the oral as well as the documentary evidence produced by the prosecution, the learned trial court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence, this appeal. 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 which cannot be made basis to convict the appellant in the offence in question. She would also submit that the parents of the victim both were in service and they left the victim to him whenever they used to go to their service. There was a quarrel between the 4 parents of the victim and the appellant as he stopped the persons who visited in the night to their house. She would also submit that the mother of the victim has lodged a report against one Aman Joshi whereas the present appellant is Aman Chaturvedi. She would also submit that the maternal aunt of the victim has also lodged another report against the appellant for the same offence allegedly committed by her daughter for which a separate FIR has been registered against him. The overall conduct of the witness as well as the allegation does not demonstrate the offence against the appellant and it was a concocted story developed by the family members of the victim to settle their personal grievances. The allegation and the evidence are not sufficient to hold the conviction of the appellant for the offence in question and therefore, the appellant is entitled for acquittal. In alternative, she would submit that the appellant is a young boy, presently aged about 30 years, he is in jail since 10.01.2022 and thereby he is already undgergone more than three years of his sentence and under the facts and circumstances of the case, his undergone period may be considered to be sufficient sentence. 7. On the other hand, the learned counsel for the respondent/state would oppose the submission made by the learned counsel for the appellant and submit that the prosecution has proved its case beyond reasonable doubt. But for minor omission or contradiction, the evidence of the prosecution witnesses is fully reliable. The victim has duly supported the prosecution’s case by her evidence. She being a minor girl, aged about 8 years, there may be some discrepancies but the same are trivial in nature and the said discrepancies does not affect the credibility of the witnesses. He being the victim of the offence can be 5 relied upon without there being any corroboration. In the present case, the evidence of the victim is corroborated by other evidence and therefore, the learned trial Court, after appreciating the entire facts and circumstances of the case as well as evidence available on record, convicted and sentenced the appellants which needs no interference. 8. I have heard learned counsel for the parties and perused the record of the trial Court. 9. There is no dispute in the case that the victim is aged about 8 years, further her age is proved by her birth certificate which has been seized vide seizure memo (Ex-P/5) and the said birth certificate is marked as (Article-A/1c). The date of birth and age of the victim has not been specifically challenged by the defence. 10. The victim (PW/1) has stated in her evidence that she knew the appellant who is her neighbour. She is presently aged about 9 years. When she was playing near the pond, the appellant took her with him, pressed her breast and inserted his finger on her private part. When she said that she would disclose it to her parents, he threatened her that he would kill her and her parents. The appellant took her on the pretext of giving chocolate and after the incident, she reached to her house and informed the entire incident to her parents. Earlier also the appellant had committed the same offence at four times. In cross- examination, she denied that she was being tutored by her mother and maternal aunt. She firmly replied that when they were playing near pond, the appellant took her with him and inserted his finger on her private part. She also disclose the incident to the Magistrate and to the Police. After returning to the house, firstly disclosed it to her mother 6 and then to her father. She had not gone with the appellant on her own will but he took her by lifting her when she was alone in her house. She also stated that when the appellant took her with him, no one had seen them. She was playing near the pond along with her friends. In her detailed cross-examination, she stuck in saying that the appellant took her with him and committed the offence. She firmly replied all the questions which stated whatever she suffered by the act of the appellant and also firmly denied that she deposed on the instance of her mother. From the evidence of the victim, she can be put in the quality of sterling witness as there is no contradictions or infirmities are found with the other evidence. From perusal of her 164 CrPC statement ( PW/1), it is found that there is no material contradictions in her evidence as well as her 164 Cr.P.C. statement. Though, the sentence of the evidence may appear to be some descriptive but the substance in both the statements are one and same and the victim was firm in substantive allegation of the offence committed by the appellant. 11. (PW/2) the mother of the victim has stated in her evidence that on 20.10.2020, her daughter has informed about the incident that the appellant used to took her and used to kiss her and pressed her breast. He also threatened her that if she disclose the incident to anyone, he would kill her. When her daughter informed her the incident, they have lodged the report to the Police. In cross- examination she admitted that the appellant is her neighbour. Though, she stated in her cross-examination that the incident of 14.10.2020 is not in her Police statement and court statement but she explained that the victim has not disclosed about the previous incident but only stated 7 that earlier also the appellant had committed the same incident with her. With the incident of 14.10.2020 her both the children were afraid and therefore, they were sent to her maternal grand mother’s house and thereafter, the appellant committed offence with her sister’s daughter, thereafter, they informed it to Child Help Line and then they lodged the report. The mother of the victim has also remained firm in raising allegation against the appellant that her daughter informed her about the offence committed by the appellant repeatedly. 12. PW/3 who is the Coordinator of Child Help Line, Raipur has stated in her evidence that on or about 20.10.2020 he received information about the incident and thereafter, they visited the house of the victim and after counseling they were ready to lodge the FIR and then the FIR was lodged. He was being informed by the family members of the victim that the appellant used to call the victim on the pretext of giving chocolate and outrage her modesty. He also threatened that he would kill her. This witness is with respect to the counseling and stated that when he received information, he went to the house of the victim and convince them for lodging of the report. 13. PW/4 who is also the member of Child Help Line, Raipur and she too have stated that when they received information about the incident, they had gone to the house of the victim and after counseling they convince her parents for lodging of the FIR against the appellant. 14. PW/5 who is the Investigating Officer who stated in his evidence that during the investigation, the birth certificate of the victim (Article- A/1c) has been seized vide seizure memo (Ex-P/5). He conducted the entire investigation and charge-sheet has been filed. In cross-examination, 8 he explained that the Aman Joshi and Aman Chaturvedi are one and the same persons. When the appellant was arrested, he disclosed that in his community some persons are writing their surname as Joshi and some persons are writing their surname as Chaturvedi. 15. 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. 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 9 “to put your hand or another part of your body lightly onto and off something or someone.” 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 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 10 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 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 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.” 16. 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 11 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)] 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 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).” 12 17. From all these evidences, the offence of the appellant has duly been proved by the prosecution that on the date of incident, the appellant took the minor victim and outrage her modesty, which was being informed by the victim to her parents and then the report has been lodged. After adverting the entire evidence and the material available in the charge-sheet, the learned trial Court has convicted the appellant for the offence under Section 354 of IPC and Section 8 of POCSO Act. However, the learned trial Court has acquitted the appellant from the offence under Section 376-AB and Section 506 of IPC and the same has not been proved by the prosecution beyond reasonable doubt. This court finds no reason to upset the well reason finding recorded by the learned trial Court holding the conviction of the appellant for the offence under Section 354 of IPC and Section 8 of POCSO Act. Therefore, the conviction of the appellant for the aforesaid offences are hereby affirmed. 18. So far as, the sentence is concerned, the offence is of the year 2020 and as per the amended provisions of section 354 of IPC, his sentence for that offence is provided for not less than one year but which may extend to five years and shall also be liable to pay fine, whereas Section 8 of POCSO Act is provided his minimum sentence of three years but which may extend to five years and shall also be liable to fine. Both these definitions are reproduced hereinbelow:- 354. Assault or criminal force to woman with intent to outrage her modesty:— Whoever assaults or uses 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 shall not be 13 less than one year but which may extend to five years, and shall also be liable to fine. Section 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. 19. Section 42 of the POCSO Act provides for alternate punishment and provides that notwithstanding anything contended in any law for time being enforced, the offender found guilty for such offence shall be liable to punish under this Act or under the Indian Penal Code as provides for punishment which is greater in decree. From comparative perusal of both the offences, it appears that the provisions of Section 8 of POCSO Act provides for punishment greater in decree and thus, the learned trial Court has awarded the sentence for R.I. for four years, whereas the minimum sentence is provided for R.I. for three years. 20. The submissions made by learned counsel for the appellant that the appellant is presently aged about 30 years and he is a young boy, and in the alleged nature of offence, he may be sentenced for minimum sentence provided for the alleged offence. In the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in (1977) 3 SCC 287 Hon'ble Supreme Court has observed that If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in Para 9 as follows: "9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel Romilly. critical of the brutal penalties in the then Britain, said in 1817: "The laws of England are written in blood". Alfieri has suggested: 'society prepares the crime, the criminal commits it'. George Micodotis, Director of Criminological Research Center, Athens, Greece, maintains that 'crime is the result of the 14 lack of the right kind of education'. If it is thus plain that crime is a pathological aberration. that the criminal can ordinarily be redeemed. that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw: 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield: "If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences." 21. Considering the overall facts and circumstances of the case and also the manner in which the offence is committed and the nature of offence, this Court finds that it would meet the ends of justice if the sentence awarded to the appellant would be reduced for the minimum sentence provided for the alleged offence and thus, while maintaining the conviction of the appellant for the offence under Section 354 of IPC and Section 8 of POCSO Act, his sentence under Section 8 of POCSO Act is reduced for R.I. for three years with fine of Rs. 1000/- instead of R.I. for four years with fine of Rs. 1000/-, the default sentence remained intact. 22. With the aforesaid alternation/ modification fo the sentence, the appeal filed by the appellant is partly allowed. 15 23. The appellant is reported to be remained in jail from 24.10.2020 to 26.12.2020 and thereafter 10.01.2022 to till date. The appellant is entitled for set-off of his undergone period during the trial as well as this appeal. 24. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 25. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE sagrika