1 2025:CGHC:58681 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 51 of 2022 Vaman Joshi, S/o Tilakram Joshi, Aged About 23 Years R/o Village Torla, Police Station Gobra Navapara, District Raipur, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through The Police Station Gobra Navapara, District Raipur, Chhattisgarh. ... Respondent For Appellant : Ms. Madhunisha Singh, Advocate For Respondent/State : Ms. Prabha Sharma, Panel Lawyer (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Judgment on Board 03/12/2025 1. This criminal appeal has been preferred under Section 374(2) of the CrPC against judgment of conviction and order of sentence dated 17.12.2021 passed by Additional Sessions Judge, First Fast Track Special Court, Raipur, (CG) in Special Criminal Case No.188/2019, whereby the learned Special Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:- Sl. No. Conviction under Section Jail Sentence Fine Sentence Default stipulation 01. 354 IPC RI for 03 years Rs.500/- RI for 01 month 02. 12 of POCSO Act RI for 02 years Rs.500/- RI for 01 month BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2025.12.04 17:09:51 +0530 2 2. The prosecution story in brief is that on 28.10.2019 at about 6.30 pm, when the minor victim (PW-1) went to light lamp (द☿या) at Jaitkham Sthamb (place of worship), that time, the appellant came from behind, caught hold her hand with ill intention and pulled her braid with intention to molest her. Earlier also the appellant harassed her. Written complaint (Ex-P/1) was lodged in Police Station Gobra Navapra, Raipur, based on which FIR (Ex-P/2) was registered against the appellant for the offence under Section 354 IPC and Section 12 of the of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’). During the course of investigation spot map (Ex-P/3) was also prepared by the police. Progress report of Class-IX of the victim was seized from her vide seizure memo Ex-P/4. Spot map (Ex-P/7) was also got prepared from Patwari. Copy of Dakhil Kharij Register (Ex-P/8C) pertaining to the victim was seized from Govt. Girls Primary Schoo, Abhanpur vide Ex-P/9. Statement of the witnesses were recorded and the appellant was arrested vide Ex-P/12. 3. After completion of investigation, charge sheet was filed against the appellant for the offences under Section 354 IPC and Section12 POCSO Act before the Special Court. The learned Special Court framed charges for the offence under Section 354 IPC and Section 12 of the POCSO Act and explained to the appellant, who denied the charges and pleaded innocence seeking trial. 4. In order to bring home the guilt of the appellant, the prosecution has examined as many as 05 witnesses and exhibited 16 documents. Statement of the appellant under Section 313 CrPC was recorded, in which he denied all the incriminating circumstances appearing against him and pleaded innocence. No witnesses have been examined by the appellant. 3 5. The learned Special Court, after appreciation of oral and documentary evidence available on record, vide its judgment dated 17.12.2021, finding the evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant/accused as mentioned in the opening paragraph of this judgment, against which, this appeal has been filed. 6. Learned counsel for the appellant submits that age of the victim (PW-1) has been proved only on the basis of Dakhil Kharij Register (Ex-P/8C) of the Primary School of the victim, but it has not been proved that on the basis of which document date of birth of the victim i.e. 28.7.2005 was recorded in the school record. Therefore, only on the basis of Dakhil Kharij Register and progress report, it cannot be held conclusively that 28.7.2005 is the actual date of birth of the victim, hence, finding recorded by the learned Special Court in this count that the victim was minor on the date of incident is perverse. She further submits that in the instant case, the prosecution has examined only 05 witnesses, no independent witness has been examined, whereas, alleged incident is said to be occurred in public place, that too on the day of Goverdhan Pooja. Despite that, the learned Special Court has convicted the appellant only on the basis of deposition of the interested witnesses, i.e. the victim (PW-1), her cousin brother (PW-2) and father (PW- 4). Hence, judgment rendered by the learned Special Court is perverse to the evidence available on record. Therefore, she prays that the appeal may be allowed and the appellant may be acquitted of all the charges by setting aside impugned judgment. 7. Per contra, learned counsel for the State would submit that impugned judgment is based on well appreciation of the evidence, hence, the appeal is liable to be rejected. 4 8. I have heard learned counsel for the parties and perused the material available on record as well as the impugned judgment. 9. As per the case of the prosecution, the victim (PW-1) was minor on the date of incident. The victim (PW-1) has stated in her deposition that her date of birth is 28.7.2005, which also got support from the deposition of her father (PW-4). Ex-P/8C is Dakhil Kharij Register of Primary School of the victim, which has been proved by Incharge Headmaster (PW-3) of the aforesaid school, from whom Ex-P/8C was seized. Article A/1 is progress Card of Class IX of the victim, which was seized from her vide seizure memo Ex-P/4. In both the documents, date of birth of the victim is mentioned as 28.7.2005. The best person to know about the date of birth of a child is her/his parents and if the parents are well educated, then date of birth of their child stated by them, which also got support from the school record, cannot be rejected. In the instant case, not only the victim has stated her date of birth as 28.7.2005, but it also got support from her father (PW-4), who himself is a teacher and their statement is also get support from the school record. Further, as per the aforesaid date of birth, age of the victim on the date of incident was 14 years 03 months, as has been held by learned Special Court. Thus, age of the victim was so minor that even after adding 2-3 years, she would not reach to the age of majority. Nothing has been elicited in the cross examination of the victim and her father to doubt aforesaid facts. Hence, it is found that learned Special Court has not committed any mistake in holding the victim minor, i.e. 14 years and 03 months on the date of incident. Hence, finding recorded by the Special Court in this regard is affirmed. 10. So far as conviction of the appellant for the offence of sexual assault/harassment is concerned, the alleged incident is said to be occurred 5 at 6.30 pm, that too at a public place, where many people go to light lamps at Jaitkham sthamb. Despite that, no independent witness has been examined by the prosecution. 11. As per the deposition of the victim, the appellant caught hold her hand to molest her and also pulled her braid with ill intention. She has further stated that the appellant had also harassed her at earlier point of time. She has admitted in cross-examination that the place where she had gone to light the lamp (द☿या) is a very small place and there is constant jostling among the people. She has also stated in her cross-examination that she had slapped the appellant as he jerked her hand. 12. To convict the accused for the offence under Section 354 IPC, sexual assault/criminal force ought to have been made with sexual intent to outrage the modesty of the female. The Hon’ble Supreme Court in the case of Naresh Aneja @ Naresh Kumar Aneja vs. State of UP &Anr.[arising out of Special Leave Petition (Crl.) No.1093 of 2021], while considering the offence under Section 354 IPC, held in para 12 (12.1 to 12.4) as under:- “12. A bear perusal of Section 354, IPC reveals that for it to apply, the offence must be committed against a woman; criminal force must be applied against her; and such application of force must be with the intent to outrage her modesty. [See: Raju Pandurang Mahale v. State of Maharashtra] (2004) 4 SCC 371 12.1 Criminal force is defined in Section 350 IPC, however, what exactly does modesty means, which is an essential aspect for this Section to apply, has not been defined so as to constitute an offence u/s 354 IPC. Any discussion on this Section is incomplete without reference to Rupan Deol Bajaj (1995) 6 SCC 194, wherein the Learned Judges observed: “14. Since the word ‘modesty’ has not been defined in the Penal Code, 1860 we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means “womanly propriety of behaviour; scrupulous chastity of thought, 6 speech and conduct”. The word ‘modest’ in relation to woman is defined in the above dictionary as “decorous in manner and conduct; not forward or lewd; shamefast”. Webster's Third New International Dictionary of the English Language defines modesty as “freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.) the meaning of the word ‘modesty’ is given as “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions”. 15. … From the above dictionary meaning of ‘modesty’ and the interpretation given to that word by this Court in Major Singh case [AIR 1967 SC 63 : 1967 Cri LJ 1 : 1966 Supp SCR 286] it appears to us that the ultimate test for ascertaining whether modesty has been outraged is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman …” 12.2 While we hold the above observations as also the discussion made in Major Singh (supra) in the highest esteem and regard, it must not escape us that the observations were made in the societal context and milieu of that time and its import today should be interpreted in our present context. Reference in this regard may be made to observations by Bhat, J in Attorney General v. Satish (2022) 5 SCC 545 , “66. … These require an element of application of physical force, to women. The expression “modesty” was another limitation as older decisions show that such a state was associated with decorousness [Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194 : 1995 SCC (Cri) 1059] of women. This added a dimension of patriarchy and class. [ Section 354 (or any other provision of IPC) does not offer a statutory definition of the term “modesty”, and over time, was interpreted broadly, contemporaneously with the developing and acknowledged role of women in society, to overcome its inherently colonial and patriarchal origins. … One cannot be unmindful of the circumstances in which these provisions were enacted by a colonial power, at a time, when women's agency itself was unacknowledged, or had limited recognition. Further, women in India were traditionally—during the time of enactment of IPC, in the mid Nineteenth Century—subordinated to the care of their fathers, or their husbands, or other male relatives. They had no share in immovable property; notions of gender equality were unheard of, or not permitted. 7 Women had no right to vote. Quite naturally, the dignity of women— or indeed their autonomy, was not provided for. 67. The advent of the Constitution of India revolutionised —at least in law, all that. Regardless of gender, race, caste, religion or region, or all of the acknowledged sectarian and discrimination enabling barriers, everyone enjoyed equality of law, and equal protection of law (Article 14). Further, the provision in Article 15(1) proscribed discrimination by the State (in all its forms) on various grounds, including gender. Article 15(3) enabled the State to enact special provisions for women and children.” 12.3 Turning to the facts of the instant case, keeping in view the contents of the FIR, the statement in the final report of the investigating officer, and the statement u/s 164 CrPC of the complainant, we are of the view that even prima facie the ingredients as referred to supra, are not met. The record is silent with respect to the use of any force, apart from bald assertions of mental and physical discomfort caused to the complainant by the appellant. 12.4 It is well settled that for mens rea to be established, something better than vague statements must be produced before the court. As evidenced by the annexures referred to above, i.e. the FIR, the preliminary investigation report as also the concluding portion of the chargesheet, no direct allegation nor any evidence in support thereof can be found attributing intent to the appellant. It cannot be said, then, that a case u/s 354 IPC is made out against the appellant.” 13. Reverting to the facts of the instant case, if the evidence available on record is seen, then it is found that the alleged incident occurred in a public place, but except the cousin brother of the victim (PW-2) and her father (PW-4), no independent witness has been examined. Aforesaid witnesses are hearsay witnesses, to whom the victim had told about the incident. The place where the said incident is said to be occurred was a small place and it was an occasion of Goverdhan Pooja and in such situation, the victim had accepted that there was constant jostling among the people. She has further submitted that when her hand was caught, she slapped the appellant. Though she had stated in her examination-in-chief that the appellant had held her hand with ill intention and to molest her, but in the 8 facts situation of the case, it cannot be ruled out that because of small space and presence of other persons to light the lamp at Jaitkham sthambh, the appellant might have held her hand, but the evidence adduced by the prosecution does not prove beyond reasonable doubt any sexual intent or intention of the appellant to molest the victim, therefore, conviction of the appellant for offence under Section 354 IPC and Section 12 of the POCSO Act, deserves to be set aside. 14. Accordingly, the appeal is allowed. The impugned judgment of conviction and order of sentence passed against the appellant for the offences punishable under Section 354 IPC and Section 12 of the POCSO Act are set aside/quashed and the appellant is acquitted of the said charges. The appellant is on bail. He need not surrender. The bail bonds furnished by him shall remain in operation for a period of 06 months from today, in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 15. Let a certified copy of this judgment along with record of the concerned Court below be transmitted forthwith for compliance and needful, if any. Sd/- (Naresh Kumar Chandravanshi) Judge Bini