1 2025:CGHC:6379 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 235 of 2024 1 - Hemant Sona, S/o Late Shri Prakash Sona, Aged About 44 Years, R/o Village Daganiya, P.S. Saraipali, District Mahasamund (C.G.) ... Appellant versus 1 - State of Chhattisgarh Through Police Station Bacheli District Dantewada (C.G.) ... Respondent For Appellant : Mr. Vikas Pandey, Advocate For Respondent/State : Mr. Vivek Sharma, P.L. Hon'ble Smt. Justice Rajani Dubey Judgment on Board 04.02.2025 1. The appellant in this appeal under Section 374(2) of CrPC has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 08.01.2024 passed by the learned Additional Sessions Judge, (FTC) South Bastar, Dantewada, District- Dantewada (C.G.) in Special Sessions (POCSO) Case No. 5/2023 whereby the appellant stands convicted under Sections 354, 354 D, 509, 509 B of IPC, Section 8, 12 of POCSO Act and Section 67 2 (B)(b) of I.T. Act, however keeping in view the provision under Section 42 of POCSO Act, he is sentenced as under:- Conviction Sentence U/s. 354 of IPC R.I. for 5 years with fine of Rs. 5000/-, in default of payment of fine, to further undergo RI for six months U/s. 8 of POCSO Act R.I. for 5 years with fine of Rs. 5000/-, in default of payment of fine, to further undergo RI for six months U/s 12 of POCSO Act for violation of Section 11 (i) of the Act. R.I. for 3 years with fine of Rs. 2000/-, in default of payment of fine, to further undergo RI for six months U/s 12 of POCSO Act for violation of Section 11(iv) of the Act. R.I. for 3 years with fine of Rs. 2000/-, in default of payment of fine, to further undergo RI for six months Section 67(B) (b) of the IT Act R.I. for 5 years with fine of Rs. 2,00,000/-, in default of payment of fine, to further undergo RI for six months (All the sentences to run concurrently) 2. Case of the prosecution, in brief, is that on 06.12.2022, victim lodged the written report at the police Station- Bacheli, District- Dantewada (C.G.) stating that from 06.06.2018 to 03.12.2022, the appellant harassed the victim by making her obscene photos and videos and made an attempt to outrage her modesty. He also uploaded the said obscene photographs in his Instagram ID and made it viral. On the basis of report, FIR bearing Crime No. 77/2022 was registered against the appellant for the offence under Sections 354, 354A, 294, 509, 509- 3 B, 506 part-II of IPC and Section 8 and 12 of POCSO Act, 2012. Thereafter, seizure memo was prepared. Spot map was prepared. Statement of the victim was recorded under Section 164 of Cr.P.C. A certificate was taken from the victim under Section 65B of Indian Evidence Act in relation to the screenshots of the chats and obscene photos presented by her. Dakhil Kharij register regarding the date of birth of the victim was seized. After taking the accused into custody, his mobile phone along with SIM was seized and thereafter, a seizure memo was prepared. Appellant was arrested. After completion of usual investigation, charge-sheet was filed against the appellant for the offence punishable under Sections 354, 354A, 294, 509, 509-B, 506 part-II of IPC, Section 8 and 12 of POCSO Act, 2012 and Section 67, 67B of IT Act before the trial Court and the learned trial Court framed charges under Sections 509, 354, 354 (A)(1)(ii) of IPC, 67(B)(a), 67(B) (b) of IT Act and Section 12 and 8 of POCSO Act against the accused/appellant to which, he abjured his guilt and prayed for trial. 3. In order to prove its case, the prosecution examined as many as 8 witnesses. Statement of the accused was also recorded under Section 313 of CrPC in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In his defence, the accused/appellant did not adduce any evidence. 4. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment acquitted the appellant of the charge under Sections 354 A (i) (ii) of IPC and Section 67 (B)(b) of I.T. Act and convicted the appellant 4 and sentenced him as mentioned in para 1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment of conviction and sentence passed by learned trial Court is bad, illegal, perverse and contrary to law applicable to the facts and circumstances and evidence available on record. The learned trial Court has failed to consider that there is delay in lodging F.I.R. and for such delay, no plausible explanation was offered by the prosecution. If entire prosecution story is taken as it is, then the offence punishable under Sections 354 of I.P.C., Section 8, 12 of POCSO Act and Section 67 (B) (b) of I.T. Act are not made out against the appellant. The learned trial Court has failed to see that the victim has not stated anywhere that the appellant was harassing her since last 4 years. The police has not seized any relevant photos of victim from the possession of appellant. The appellant is a pastor of church at Bacheli and the family member of victim has falsely implicated the appellant in the instant case. The learned trial Court did not appreciate the oral and documentary evidence properly and gave wrong finding. Therefore, the impugned judgment is liable to be set aside. Alternatively, he submits that if this Court ultimately comes to the conclusion that the conviction of the appellant under the aforesaid sections as imposed by the trial Court is just and proper, considering the fact that the appellant is in jail since 08.12.2022; this appeal is pending since 2024; appellant is middle aged person, he is pastor of church and he has no criminal antecedent, the appellant may be sentenced to the period already undergone by him. 5 6. On the other hand, learned counsel for the State supporting the impugned judgment submits that the victim is minor and all prosecution witnesses have categorically stated against the appellant and also the prosecution has proved the guilt of the accused by oral and documentary evidence. He further submits that the learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellant which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed. 7. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. It is clear from the record of learned trial Court that the learned trial Court framed the charges under Sections 509, 354, 354 A(1)(ii) of IPC, 67(B)(a), 67(B)(b) of IT Act and Section 12 and 8 of POCSO Act against the appellant. After appreciating oral and documentary evidence, the learned trial Court convicted and sentenced the appellant as mentioned in para 1 of this judgment. 9. Principal- Sister Jolly (P.W.-5) filed Dakhil Kharij register (Ex.P/20) and stated that as per the said register, the date of birth of the prosecutrix is 29.01.2004 and date of admission in class 4th is 09.04.2012. In her cross-examination, she admitted that the prosecutrix took admission in her school in class 4th and she did not know as to in which school she studied before taking admission in this school. She further admitted that she did not take any birth certificate at the time of admission of the prosecutrix and date of birth of the prosecutrix was recorded as per her transfer certificate of the previous school. 6 10. Prosecutrix (P.W.-1) categorically stated against the appellant that the accused/appellant took her obscene photos and uploaded the same on instagram, at that time, she was minor. Thereafter, she filed written complaint vide Ex.P/1 and on the basis of written complaint (Ex.P/1), FIR (Ex.P/2) was registered against the appellant. In her cross-examination, she remained affirmed. 11. Mother of the prosecutrix (P.W.-2), father of the prosecutrix (P.W.-3), sister of the prosecutrix (P.W.-4) supported the statement of the prosecutrix. 12. The Hon'ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment as under: “40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- 7 "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 13. In light of aforesaid decision of the Hon'ble Supreme Court, this Court finds that in the present case, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was minor on the date of incident, yet the learned trial Court has recorded in the impugned judgment that she was minor. Hence, the finding so recorded by the learned trial Court is set aside and this Court holds that the prosecution has not been able to prove successfully that on the date of incident she was minor. 8 14. Close scrutiny of the evidence makes it clear that the offence under Sections 354 (D), 509(B) of IPC and Section 67 of IT Act is proved by the prosecution by filing mobile details of the accused/appellant and social media ID of the accused. As per 65 (B) of the Evidence Act, prosecution also filed certificate (Ex.P/38). Therefore, the learned trial Court appreciated all oral and documentary evidence properly and rightly convicted the appellant under Sections 354, 354(D), 509, 509 (B) of IPC and 67(B)(b) of IT Act. Since this Court already observed that the prosecution has failed to prove that on the date of incident she was minor, in the given set of facts and circumstances of the case, no offence under POCSO Act is made out against the appellant. Therefore, the appellant is acquitted of the charge under Sections 8 and 12 of POCSO Act, however considering the evidence available on record and the act of the appellant, the offence under Sections 354, 354 (D), 509, 509(B) of IPC and 67 (B)(b) of IT Act are affirmed. 15. As regards sentence, considering the facts and circumstances of the case; appellant is in jail since 08.12.2022, there is no criminal record against the appellant, this Court is of the opinion that the ends of justice would be served if he is sentenced to the period already undergone by him under Sections 354, 354 (D), 509, 509(B) of IPC and 67 (B)(b) of IT Act. 16. In the result, the criminal appeal is allowed in part. While acquitting the appellant of the charges under Sections 8 and 12 of POCSO Act and his conviction under Sections 354, 354 (D), 509, 509(B) of IPC and 67 (B)(b) of IT Act are affirmed and the substantive jail sentence thereunder is reduced to the period already undergone by him. The fine imposed on the appellant by learned trial Court with default sentence under Sections 354 of IPC and 67(B) (b) of IT Act shall remain intact. 17. This apart, the appellant shall also pay fine of Rs. 200/- each under 9 Sections 354 D, 509, 509B of IPC and in default thereof shall suffer 6 months additional RI on each count. The fine amount already deposited by the appellant shall be adjusted accordingly. 18. As the appellant is in jail since 08.12.2022, he be set at liberty forthwith, if no longer required in any other criminal case. 19. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Rajani Dubey) JUDGE Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV