1 2025:CGHC:17603 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 477 of 2018 1 - Baleshwar Patil S/o Shivram Patil Aged About 40 Years R/o- Village- Quarter No. 737, New Shaktinagar, Jarhi Police Station- Bhatagaon, District- Surajpur, Chhattisgarh., District : Surajpur, Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through- Station House Officer, Police Station Bhatgaon, District- Surajpur, Chhattisgarh., Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Shakti Raj Sinha, Advocate For Respondent(s) : Mr. Rishabh Singh Deo, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 11/04/2025 1. With the consent of the parties, the present matter is heard finally. 2. This criminal appeal has been preferred by the appellant against the judgment of conviction and order of sentence dated 14.03.2018, passed in Special Criminal Case No. 02/2017 by 2 which the learned Special Judge [POCSO Act] and Additional Sessions Judge (FTC), Surajpur (CG),whereby the appellant has been convicted and sentenced as follows:- Conviction Sentence U/s 454 of IPC R.I. for 1 year and fine of Rs. 500/- U/s 10 of POCSO Act R.I. for 5 years and fine of Rs. 1500/- 3. Brief facts of the case are that on 05.01.2017 at about 6:00 pm when the prosecutrix was cooking food at her house then the appellant/her uncle came from behind and sat there and grabbed the prosecutrix from behind and started pressing her breast and flew away on hue and cry made by the prosecutrix, thereafter when her father came back house she narrated the incident to him and lodged the report against the appellant. Charges were framed under Section 456,354 of IPC and Section 8 of POCSO Act. 4. Prosecution in order to prove its case examined total 8 witnesses. Statements of appellant (accused) was also recorded under Section 313 of CrPC in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. However, no evidence was adduced by him in his defence. 5. After hearing counsel for the parties and appreciating evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellant in the manner as described above of this judgment. Hence this appeal. 3 6. Learned counsel for appellant submits that the appellant has been falsely implicated in the present case, because there is previous enmity with the prosecutrix and his family members. Learned counsel for the appellant further submits that the impugned judgment is per se illegal and contrary to the evidence available on record. The prosecution has failed to prove its case beyond all reasonable doubt against the appellant and therefore, the appellant deserves to be acquitted of all the charges. 7. On the other hand, learned counsel for the State supporting the impugned judgment submits that the Trial Court has rightly appreciated and considered the documents available on record. Being so, the impugned judgment is strictly in accordance with law and the present appeal is liable to be dismissed. 8. Heard learned counsel for the respective parties and perused the record placed on record. 9. From perusal of record it transpires that on 05.01.2017 at about 6:00 pm when the prosecutrix was cooking food at her house then the appellant/her uncle came from behind and sat there and grabbed the prosecutrix from behind and started pressing her breast and flew away on hue and cry made by the prosecutrix, thereafter when her father came back house she narrated the incident to him and lodged the report against the appellant. 10. Section 9(m) of the POCSO Act provides that whoever commits sexual assault on a child below 12 years, is said to commit aggravated sexual assault. Section 10 of the POCSO Act provides 4 that whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine. 11. Now the question for consideration is whether on the date of incident the prosecutrix was below 12 years of age? 12. In this regard, the prosecution mainly relied upon Dakhil- Kharij Register (Ex. P/8) in which the date of birth of the prosecutrix is mentioned as 16.03.2005 and the date of admission is mentioned as 13.07.2011. PW-2/ father of prosecutrix has deposed that he did not know the date of birth of the prosecutrix and as per his version, the prosecutrix is aged about 12 years. PW-1/ prosecutrix herself deposed that she did not know her date of birth. PW-6/ Head master of the school deposed that he is the author of Dakhil-Kharij Register (Ex. P/8) and he has mentioned the date of birth of the prosecutrix in the Dakhil-Kharij Register on the basis of the statement of the father of the prosecutrix without any document and Birth Certificate has not been produced by the prosecution. Therefore, this Court is of the considered view that the prosecution has failed to prove that on the date of incident the prosecutrix was below 12 years. Hence, the Section 9 of POCSO Act will not be applicable in this case. 13. Section 7 of POCSO Act provides that 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 5 any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. 14. Similarly, Section 8 of POCSO Act provides that 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. 15. Prosecutrix in her deposition deposed that the incident took place around six months ago. She was alone at home as her father and younger sister went to the market. While she was alone at home, she was cooking and at the relevant point of time the accused appellant came from behind and grabbed her. Thereafter, he pulled towards the floor and started pressing her breast. On screaming he even pressed her mouth. Later the neighbor came and called out her name. Upon hearing the voice of her neighbor the accused appellant ran away. Around 8’o clock when her father and younger sister returned, she narrated everything and went to the Police Station to lodge an FIR against the accused appellant. 16. Father of the Prosecutrix in his deposition deposed that the incident took place about five to six months ago. On the day of incident he along with her younger daughter went to the market. His elder daughter was alone at home. When he returned from the market he saw that his elder daughter/prosecutrix was crying 6 and upon asking why is she crying she stated that the appellant came to the house and tried to hold her. 17. Considering the aforesaid facts and circumstances of the case, the records available, the contentions of the counsels, it is crystal clear that the appellant with sexual intent touches the breast of the prosecutrix/child aged about 12 years. Therefore, this Court finds the present appellant guilty of offence under Section 7 of POCSO Act. Hence, the present appellant is sentenced to undergo R.I. for 3 years under Section 8 of POCSO Act. However, fine amount awarded by the Trial Court shall remain same. 18. With the aforesaid view, the present Criminal Appeal is modified to the extent hereinabove stated and is allowed in part. SD/- (Arvind Kumar Verma) JUDGE Madhurima