1 2025:CGHC:20301 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1552 of 2018 Santosh Kumar Sao S/o Shri Balakram Sao Aged About 58 Years R/o Village Aurda, Police Station -Pushour, District- Raigarh Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Police Station Pushour, District Raigarh Chhattisgarh. ... Respondent For Appellant : Mr. Pawan Kesharwani, Advocate For State/Respondent : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board (05.05.2025) 1. This appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (in short CrPC) has been preferred by the appellants (in jail) being aggrieved by the judgment of conviction and order of sentence dated 04.10.2018 passed by First Additional Sessions Judge (Fast Track Court) Raigarh Chhattisgarh in Special Case under the POCSO Act no. 13/2017 (Annexure A-1), whereby the appellant has been convicted and sentenced as under:- 2 Conviction Sentences Under Section 354(B) of the Indian Penal Code Rigorous Imprisonment for 05 years and fine amount of Rs. 1000/-, in default of fine amount additional rigorous imprisonment for one month. Under Section 08of the POCSO Act Rigorous Imprisonment for 05 years and fine amount of Rs. 1000/-, in default of fine amount additional rigorous imprisonment for one month. Both the sentence will run concurrently. 2. Brief facts of the case are such that, as per the prosecution case the mother of the victim on 16.03.2017 filed a report stating that her daughter who is a student of eight standard was very sad on 15.03.2017. On asking she did not told anything on that day but on very next day she told her that yesterday her science teacher told her that her science exam has not gone good therefore asked her to come in his bore house where he will give her new paper for writing. As said she returned from the school went to the bore house of the appellant where the appellant gave her the paper and made her to rewrite again. When she was writing the paper the appellant tried to press her chest, remover her clothes and thereafter removed his clothes also and tried to commit sexual assault with her. But when she shouted, the appellant leaved her and gave her Rs. 100/- and said that she should not say anything about all this to anyone. Upon which an FIR against him was lodged for the offence punishable under Section 3 376/511 of the Indian Penal Code as well as Section 8 and 6 of the POCSO Act, 2012. 3. After due investigation and after completion of remaining formal proceedings, charge sheet was filed against the present accused appellant the offence punishable under Section 376(2)(f) of the Indian Penal Code and Sectionf 06 of the POCSO Act, 2012. 4. To prove the guilt of the accused/appellant, the prosecution has examined as many as 08 witnesses. Statements of the appellant under Section 313 of the Cr.P.C. was recorded, wherein accused/appellant has pleaded his innocence and false implication in the matter. After completion of trial, the trial Court convicted and sentenced the appellant as mentioned in para one of this judgment. Hence, this appeal. 5. Learned counsel appearing for the appellant submits that the impugned judgment is contrary to the law, facts and circumstances of the case. He stated that the prosecutrix PW- 07 has been medically examined by the prosecution and Dr. Rajni Nayak PW-01 has clearly stated that in the medical examination even a single scratch was not found. That as per the statement of DW-01 it is clear that there is old enmity between the appellant and the prosecutrix’s family due to 4 examination result and the victim is a wholly unreliable witness, because she was the student and so she has falsely implicated the appellant in this case therefore the conviction and sentence awarded by the trial court deserves to be set aside on this ground alone. He also stated that the record of the age of the prosecutrix for consideration has not been proved by the prosecution. The prosecution further failed to produce any relevant document regarding the age of the prosecutrix. 6. Per contra, learned counsel appearing for the State/respondent opposes the argument raised by counsel for the appellant and supported the impugned judgment passed by the Trial Court. He stated that after due diligence and consideration the trial court has convicted the present appellant under the said sections. Hence interference to the judgment so passed by the concerned trial court would largely affect the justice of the victim. 7. I have heard learned counsel appearing on behalf of the parties and perused entire evidence adduced by the complainant and gone through the evidence available on record with utmost circumspection. 8. Investigation Officer Deepak Kumar Paswan PW-07 has 5 stated in his statement that on 12.04.2017 from the head master Tek lal Sarathi of Govt. Pre-Secondary School, Aurada seized the Dakhil Kharij Register Article A1. According to the Dakhil Kharij Register seized from the head master of the school, the date of birth of the victim is mentioned as 11.10.2005. The head master in his deposition has deposed that he does not know on what basis the date of birth of the victim has been mentioned as 11.10.2005. However no objection has been raised by the other side during the cross- examination. The father of the victim stated that he himself got her daughter admission done and mentioned that the date of birth of the daughter is 11.10.2005. Moreover birth certificate of the victim has been produced by the prosecution agency in which the date of birth of the prosecutrix is mentioned as 11th of October,2005. 9. In the present case, the date of the prosecutix is not a matter of dispute, it is crystal clear that the age of the victim at the time of said incident was 11 years and 05 months only. She was minor. 10. On further perusal of the documents available on record this court finds that initially the offence under Section 376 (2) (f) of the Indian Penal Code and Section 06 of the POCSO Act, 2012 was registered against him. In which the trial court 6 found that the accused appellant is not guilty of the offence under Section 376(2)(f) of the Indian Penal Code and Section 06 of the POCSO Act, 2012. However, after perusing the record and looking to the depositions made by the prosecutrix as well as other witnesses, found him guilty for the offence punishable under Section 354(£) of the Indian Penal Code and Section 08 of the POCSO Act, 2012. 11. Victim PW-02 in her deposition deposed that on the date of incident the accused appellant told her that her science paper has not gone well. Therefore, she should come to bore house, where he will give him another science paper to write. When she reached in his bore house the accused appellant removed her clothes and made her lay down on the bed. He thereafter committed forceful intercourse with her and gave her Rs. 100/- for the sake of not telling what has happened here with anyone. She has admitted the fact that she knew her science paper has not gone well and she is failed in it. 12. Father of the victim PW-03 in his statement stated that the next day his wife told him about the incident. She also told him that the accused appellant called their daughter in order to rewrite the paper of Science. He met the head master as well as the other teachers of her school including the appellant and asked them how they teach the children that her daughter’s 7 science paper has not gone well. He also stated that he has told the accused appellant that he will file a complaint against him. 13. PW-04 mother of the victim in her statement stated that on the day of incident her daughter went to the school at around 10 in the morning and returned at about 04 PM. After returning from the school she stated that the accused appellant has called her to his house in order to rewrite the science paper. Thereafter she went to his house. After returning from the house of the appellant, her daughter was crying. When she asked her why is she crying, she stated that the appellant has committed rape with her. When she reached in the house of the appellant he closed the door and told her that he has not called her to re-write the paper of science subject in fact he has called her to perform sexual intercourse with her. However, she stated that it is in her knowledge that under the Scheme of Siksha Guarantee Yojana the student of up to class 08th standard are not failed. 14. It is pertinent to mention here that (PW-01)/Doctor who has examined the victim and submitted the medical report as Ex. P/01 found that there is no external and internal injury in the body of the victim and also found that the hymen is not ruptured. 8 15. Hon’ble Supreme Court in the matter of Nirmal Premkumar vs State Rep. By Inspector Of Police has held as under:- 26. We quite agree with the submissions of learned senior counsel for the State that an act of sexual harassment of a girl student (who is also a minor) by any teacher would figure quite high in the list of offences of grave nature since it has far-reaching consequences, which impact more than just the parties to the proceeding. At the same time, it is axiomatic that reputation is earned by a teacher upon rendering service over the years and an accusation like the present would remain as an indelible mark marring his entire future life. Care has, therefore, to be taken so that his right to live a life of dignity and personal liberty are not put to jeopardy on the basis of half-baked evidence. 27. We are, thus, inclined to deem this case unsuitable for securing a conviction under section 11 read with section 12 of the POCSO Act, as there are enough missing links in the present case to extend the benefit of doubt to A-1. As regards A-2, we do not consider that the prosecution was successful in proving that the conduct of A-2 was a case of criminal intimidation punishable under section 506 of I.P.C.; his conviction, too, is also liable to be set aside. 16. Section 354 B of the Indian Penal Code states that any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked. However from the bare perusal of the depositions made by the witnesses as well as the victim, it is observed that the victim as well as the other witnesses has clearly alleged the accused appellant of performing sexual 9 intercourse with her. But this court finds that there is no clear evidence that the accused appellant performed sexual intercourse with her. The thing which need to be seen is that prior to the incident, the father of the victim went to the accused appellant and asked him about the paper and thereafter threatened him that he will file a report against him. Moreover it is alleged that the accused appellant has called the victim to his bore house in order to rewrite the paper but according to the Siksha Guarantee Yojana, no student up to class 08th is failed. 17. Looking to the peculiar facts and circumstances of the case, no such incriminating evidences have been found that can certainly depict that the accused appellant called the victim to his bore house and tried to perform sexual intercourse with her. So far as the allegation of the victim and her parents is concerned they has alleged of committing rape with her. But no evidences could show that the accused appellant has committed rape with her. The doctor PW-01 Rajni Nayak in her deposition stated that there is no external and internal injury found on the body of the victim. Moreover the hymen of the victim was not ruptured which clearly shows that there was no sexual intercourse performed by the accused appellant with the victim. Even there is no sign of 10 trying to commit sexual intercourse with the victim. Therefore, this court has found that the victim is not a high quality sterling witness and her statement is highly doubtful. 18. Hence this court is of the considered opinion that impugned judgment passed by the learned trial court is perverse, illegal and contrary to the facts and circumstances of the case. The ingredients of section 354 B has not been made out. Therefore, the present appeal deserves to be and is hereby allowed. The accused appellant is acquitted from all the charges leveled against him by the learned Trial Court. 19. Consequently, the appeal is allowed . The conviction of the appellant under Section 354(B) of the Indian Penal Code and Sectin 08 of the POCSO Act, 2012 is set aside. 20. The appellant is reported to be on bail. His bail bond is not discharged at this stage and the same shall remain operative for a further period of six months in light of Section 437-A of the Cr.P.C. 21. Records of the trial court be sent back along with a copy of this order forthwith for information and necessary compliance. sd/- (Arvind Kumar Verma) Judge alfiza