1 2025:CGHC:15784 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 367 of 2016 1 - Rajesh Bhagat S/o Shri Naiharsai Aged About 43 Years R/o Village Lipti, P.S. Kapu, District Raigarh, Civil And Rev. District Raigarh Chhattisgarh. , Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through S.H.O. Of The P.S. Kapu And District Raigarh Chhattisgarh. , Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Abhishek Saraf, Advocate For Respondent(s) : Mr. Jitendra Shrivastava, G.A. Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 03/04/2025 1. The present Criminal appeal is heard finally with the consent of the parties. 2. This criminal appeal has been preferred by the appellant against the judgment of conviction and order of sentence dated 27.02.2016, passed in Special Case No. 52/2014 by which the 2 learned Additional Sessions Judge Fast Track Court, Raigarh (CG),whereby the appellant has been convicted and sentenced as follows:- Conviction Sentence U/s 456 of IPC R.I. for 1 year and fine of Rs. 200/- in default of fine additional R.I. for 1 month. U/s 354 of IPC R.I. for 4 years and fine of Rs. 500/-, in default of fine additional R.I. for 3 months. 3. Brief facts of the case are that the complainant (PW-1) aged about 18 years, completed class 11th lodged a written complaint against the appellant/accused and as per the complaint, on the intervening night of 14.06.2015 when she was sleeping in the house in the presence of her father namely Krishna Sahu around 12:00 am, the present appellant entered in her room and tried to outrage her modesty by snatching her underwear, on alarm made by the complainant, her parents woke up then appellant succeed to ran away form her house, then after inordinate delay of 2 days i.e. on 16.06.2014 the matter was reported before SHO of the Police Station Kapu District Raigarh as Crime No. 78/2014 and offences punishable under Section 456, 354 of IPC and Section 8 of POCSO Act, wherein appellant/accused has denied the charges framed against him on the grounds of false implication. 4. Prosecution in order to prove its case examined total 6 witnesses. Statements of appellant (accused) was also recorded under 3 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. 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 the perusal of record it transpires that the victim is aged about 18 years and is a student of class 11th. On 14.06.2014 the prosecutrix was sleeping in her room with her mother and her 4 father was sleeping near the door of the house. In the intervening night at around 12:00 pm her neighbour Rajesh Bhagat entered her house and her room where she was sleeping along with her mother and and tried to snatch the underwear of the prosecutrix with sexual intent. The prosecutrix woke up and shouted upon which her mother and father also woke up and mother of prosecutrix hit the accused by her leg. 10. The learned Trial Court first dealt with the question whether on the date of incident the age of the prosecutrix was 18 years? 11. PW-1/prosecutrix has deposed in her statement that on the date of incident, she was studying in Class 11th and was 18 years. PW- 2/father of prosecutrix and PW-3/mother of prosecutrix have not deposed anything regarding the age of the prosecutrix. 12. PW-5/ Smt. Aulobia Tirki/ teacher has deposed in her statement that on 22.07.2014 she received a notice (Ex. P/12) for production of preliminary proof of age of prosecutrix. In this regard, she has presented Birth Certificate (Ex. P/13) of the prosecutrix and in the Dakhil-Kharij Register (Ex. P/14-C)in which at S. No. 1067 her date of birth is mentioned as 20.08.1996. 13. Ex. P-13 is the Birth Certificate, Ex. P-14 C is the photocopy of Dakhil-Kharij Register, and in the marksheet of Class the date of birth of the prosecutrix is mentioned as 20.08.1996. PW-5 has admitted in her cross-examination that she is not the author of Dakhil-Kharij Register and the entry of date of birth of the prosecutrix has not been made by her. 5 14. The learned Trial Court after considering the statements of the witnesses and the perusing the documents available on record, held that the prosecution has neither conducted the ossification test of the prosecutrix nor submitted the Kotwari Register which can prove that on the date of incident the prosecutrix was below 18 years. In absence of any proof with regard to her age the learned Trial Court held that on the date of incident the prosecutrix was not minor. 15. The next question dealt with by the learned Trial Court was that whether the accused commit an offence punishable under Section 456, 354 of IPC and Section 8 of POCSO Act, 2012? 16. PW-1/ prosecutrix in her statement has deposed that on the date of incident, i.e., on 14.06.2014 she and her parents after taking dinner were sleeping. The prosecutrix was sleeping with her mother in room and her father was sleeping near the door of the house. In the intervening night at around 12 o’clock the accused Rajesh Bhagat entered the house and room where prosecutrix was sleeping and tried to snatch her underwear upon which the prosecutrix woke up and shouted, as a result of which her parents also woke up and her mother hit the accused with her leg. PW-2 who is the father of prosecutrix and PW-3 who is the mother of prosecutrix also supported the statement of prosecutrix. 17. PW-1 further stated that on 15.06.2014 Panchayat meeting was held in which the accused did not came and on 16.06.2014 he came in the Panchayat and lied therefore they lodged an FIR. 6 18. Learned counsel for the appellant contended that there is no independent witness in the present case. Since the incident happened at around 12 in the night, also the place of incident is the house of prosecutrix, therefore it is very difficult to get any independent witness. 19. Since the prosecution has failed to prove that on the date of incident the prosecutrix was not minor, therefore the learned Trial Court has acquitted the accused under Section 8 of POCSO Act, 2012. But on the basis of the evidence led by the prosecution, the documents presented and the statements made by the witnesses, trial court held that it is proved that on 14.06.2014 at around 12 in the night the accused entered the house of prosecutrix and commits lurking house trespass in night (offence under Section 456 of IPC) and with intent to outrage the modesty of prosecutrix used criminal force and tried to snatch her underwear (offence under Section 354 of IPC). 20. Therefore, taking a cumulative note of the facts and circumstance of the case, the statements of witnesses, the documents presented by the prosecution, this Court has no hesitation to hold that the findings recorded by the trial Court convicting the accused/appellant under Section 354 and 456 of IPC are based on due appreciation of the evidence on record and deserve to be and are hereby maintained. 21. As regards sentence, considering the facts and circumstances of the case, the sentence of 4 years rigorous imprisonment imposed 7 by the trial Court under Section 354 of IPC appears to excessively on the higher side and therefore, this Court is of the opinion that it would be in the interest of justice if the sentence imposed on him is reduced to rigorous imprisonment for 1 year. However, fine imposed by trial Court is maintained. However sentence awarded under Section 456 of the Indian Penal Code is hereby maintained. 22. With the aforesaid observations, the criminal appeal is partly allowed to the extent indicated hereinabove. 23. Let a copy of this order and the original records be transmitted to the trial court concerned forthwith for necessary information and compliance. SD/- (Arvind Kumar Verma) JUDGE Madhurima