1 2025:CGHC:7615 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 72 of 2024 1 - Milan Miri Alias Karra S/o Sagan Miri Aged About 32 Years R/o Sunderali, Station Nagarda, District Sakti (C.G.) ... Appellant(s) versus 1 - State Of Chhattisgarh Through Police Station Nagarda, District Janjgir Champa (C.G.) ... Respondent(s) For Appellant(s) : Ms. Sameeksha Gupta, Advocate For Respondent/State : Ms. Monika Thakur, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 12/02/2025 The present appeal has been filed under Section 374(2) of the Code of Criminal Procedure 1973, (for short the, Cr.P.C.) against the impugned judgment of conviction and sentence dated 19.10.2023 passed by Learned Special Judge (FTSC) Sakti, District- Janjgir- Champa Chhattisgarh in Special Criminal Case No. 36/2023, whereby the appellant has been convicted and sentenced for the offence in the 2 following manner: Conviction Sentence Under Section 363 IPC To undergo RI for 5 years and fine of Rs.1000/-, in default of payment of fine to further undergo RI for 6 months Under Section 354 IPC To undergo RI for 2 years with fine of Rs. 1,000/-, in default of payment of fine to further undergo RI for 3 months 2. Prosecution case in brief is that on 15.08.2023, at about 5.00 p.m. when the minor victim aged about 5 years had gone to the shop for purchasing biscuit and was returning, on the way, the appellant lured her to give chocolate and with a will intention took her towards the filed, which was seen by one Dhaneshwar and asked him as to where is he taking her then the prosecutrix replied that the appellant is forcefully taking her. Thereafter, he brought the victim to her house and informed about the incident. It is alleged that earlier also, the appellant had committed similar offence for which he re remained in jail therefore, he was having suspicion that he might be taking the minor victim towards the fields with bad intention. On the basis of the said report by the grandfather of the victim, offence under Sections 363,354 IPC and Sections 5 M, 7,18,11(vi) and 12 of the PO?C?SO Act was registered. On requisite procedural formalities being completed during investigation, such as drawing of spot map, recording of police statements, getting the prosecutrix medically examined vide Ex.P-9, seizure memo Ex.P-2 was prepared and birth certificate of the minor was seized and effecting arrest of the accused etc, the charge sheet was filed under Sections 363, 354 IPC and Sections 8,12,11(vi) and 18 of the POCSO Act, 2012. 3 3. In order to prove its case, the prosecution has examined as many as 13 witnesses. Statement of the accused under Section 313 CrPC has also been recorded where he has simply taken a plea of innocence and false implication in the case. 4. Learned trial Court, on appreciation of the evidence of the witnesses, convicted and sentenced the accused/appellant as per the description given hereinbefore vide judgment dated 8.4.2019 which is under assail in this appeal. 5. Counsel for the appellant submits that the conviction of the accused/appellant as referred to above is not in conformity with the evidence collected by the prosecution and therefore it is liable to be set aside. She submits that despite number of contradictions and omissions in the evidence of the witnesses, the Court below has fallen in a serious legal error in abruptly arriving at the conclusion of holding him guilty of the acts falling in sections 363 and 354 IPC and 8,12,11(vi) and 18 of the POCSO Act. He further submits that for determination the exact age of the prosecutrix, the prosecution should have resorted to ossification test as well. According to her, medical evidence also does not stand by the prosecution, and that owing to some family dispute, the appellant has been implicated by the mother of the prosecutrix in a false case. She submits that the statement of the alleged eyewitness is ambiguous and uncertain as he was drunk. The ingredients for conviction under Section 354 requires assault of use of criminal force with intention to outrage the modesty of a woman with sexual instinct, however no offence as such had taken place. 6. Counsel for the appellant submits that there is no sexual assault instincts on part of the appellant established by the prosecution. It has 4 also been submitted that the appellant has falsely been implicated in this case on the basis of some old animosity. The appellant has already undergone more than 3 years of jail incarceration, therefore the sentence be reduced to the period already undergone. It is further submitted that the appellant deserves some leniency as he has already suffered the ordeal of the trial since 16.08.2023. It is further submitted that this appeal be partly allowed and the sentence awarded to the appellant be reduced to the period already undergone by enhancing the fine amount. 7. On the other hand, counsel for the State supports the judgment impugned and submits that the findings recorded by the trial Court being based on due appreciation of the evidence of the witnesses, ocular and medical, require no interference in this appeal. 8. Heard counsel for the parties and perused the material on record including the judgment impugned. 9. Learned Trial Court first assessed the maturity level and mental ability of the five years old prosecutrix by putting a general questionnaire to her and after being satisfied about the same, it proceeded to record her evidence. The prosecutrix has stated that she knew the accused and stated that she does not know his name but is of her village. She has stated that on the date of incident, when she was coming home after buying the biscuit, on the way, accused/appellant lured her to give chocolate and money, taking towards the baadi and at that point of time, Dhaneshwar, saw and asked the appellant as to where was he taking her. The appellant did not reply and then he took the minor victim and drop her home and informed about the incident to her mother and grandmother. The prosecutrix has denied that her 5 deposition is based on tutoring either from her parents or anyone else. Supporting the evidence of the prosecutrix, Dhaneshwar (PW-8) has stated that on the date of incident when he was returning from the fields, he saw that the appellant was taking the minor victim forcefully towards the field and the prosecutrix was resisting to leave her hand. Thereafter, he took the prosecutrix along with him and dropped her home and informed about the incident to her grandfather and thereafter the report was lodged by grandfather of the prosecutrix. He has also deposed that earlier also the appellant had committed the offence of rape and had also remained in jail. Supporting the evidence of prosecutrix, he has stated that on the date of incident the accused took the prosecutrix towards the field and it is he who saw the appellant and brought the victim back to her house. 10. (PW-1) Mother of the prosecutrix has stated that the appellant is a resident of the village and on the date of incident, when her daughter was returning from the shop after buying biscuit, the appellant took her forcefully towards the baadi however, on the way, Dhaneshwar saw him forcefully taking her child an then he scolded him and dropped her back home. Dhaneshwar informed them that the appellant took the prosecutrix by alluring her that he will give chocolate. She has also stated that earlier the appellant has remained in the jail in the case of rape. (PW-3) father of the prosecutirx has stated that on the date of incident, at about 5.15 pm, Dhaneshwar had made a call to him and informed about the incident and on the next morning, the prosecutrix narrated the incident to him and the report was lodged. The prosecutrix was medically examined after taking consent vide Ex.P-1. In cross- examination, he has stated that earlier also, the appellant had remained 6 in custody in a rape case. 11. (PW-5) Grandfather of the prosecutrix has stated that on the date of incident, the appellant was forcefully taking his granddaughter with him towards the baadi and she was resisting. On seeing by Dhaneshwar, he asked him as to where was he taking her, prosecutrix replied that he is taking her forcefully. Thereafter, he intervened and brought the prosecutrix back home and had also informed about the incident to the family members of the prosecutrix. 12. Dr. Shaili Agrawal (PW-9) has stated that she has medically examined the prosecutrix and she has given the report Ex.p-8. She opined that there were no external or internal injuries found on the person of the prosecutrix. 13. So far as the determination of age is concerned, the learned trial Court has held that the age of prosecutrix is 5 years which is less than 12 years. Appellant did not dispute the above fact. 14. Now, turning to the reliability of evidence procured by the prosecution, the prosecutrix is aged about only 5 years at the time of deposition of her testimony and she has clearly stated in examination- in-chief that the appellant caught her hand and forcefully taking her towards the filed on the allurement of giving money and chocolate and she was trying to resist however, at that point of time, one Dhaneshwar saw her and he pulled her from the clutches of appellant and handed over to the family members. 15. Learned counsel for the appellant has submitted that only on account of touching or rubbing thigh, presumption of sexual intention cannot be established. On this aspect, respective provisions of concerned act is worth to quote here :- 7 "Section 29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved." 16. In this case, the age of the prosecutrix is 5 years, as per prosecution witnesses, the appellant was taking her towards the filed with a wrong intent and the prosecutrix was trying to resist. This act of appellant is sufficient to gather his sexual intention, hence, contention of learned counsel for appellant regarding sexual intention is found unsubstantial. On this aspect, the following ratio held by Full Bench of Hon'ble Apex Court in the case of State of Punjab Vs. Major Singh reported in AIR 1967 SC 63, is worth of quote here :- "15. The offence punishable under Section 354 is an assault on or use of criminal force to a woman with the intention of outraging her modesty or with the knowledge of the likelihood of doing so. The Code does not define "modesty". What then is a woman's modesty? 1 6 . ..........the essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as, for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anesthesia, she may be sleeping, she may be unable to appreciate the significance of the act;nevertheless, the offender is punishable 8 under the section. A female of tender age stands on a somewhat different footing. Her body is immature, and her sexual powers are dormant. In this case, the victim is a baby seven and half months old. She has not yet developed a sense of shame and has no awareness of sex. Nevertheless, from her very birth she possesses the modesty which is the attribute of her sex." Virtually, what constitutes to outrage female modesty is nowhere defined. The essence of a woman's modesty is her sex. However, culpable intention of the appellant is crux of the matter. The reaction of the woman is certainly relevant but its absence is not always decisive. Here, is the case of 5 years old child, hence, in order to gather the intention of accused to outrage the modesty, the act and conduct of the appellant would be relevant. 17. In view of the aforesaid law laid down by Hon'ble Apex Court, the act and conduct of the accused is sufficient to prove the intention regarding outraging the modesty of the prosecutrix which is punishable under Section 354 of IPC. Thus, if the aforesaid factual matrix is seen carefully in the light of the evidence adduced by the prosecution, in particular that of the victim, this Court is of the considered opinion that by removing the girl child from lawful guardianship, taking her towards isolated place, with an ill intent, the complicity of the accused in the crime in question is fully established. 18. Prosecutrix had been fully consistent in giving narration of the incident everywhere i.e. in the statement recorded under Section 161 CrPC by the police, under Section 164 CrPC made before the Magistrate as also in the evidence recorded during trial, which received corroboration from the evidence of Dhaneshwar (PW-4). It is for the 9 reason that no parent would implicate anyone on account of a trivial family dispute by putting at stake the entire future of their own girl child by making such ignominous character-related imputations which are bound to bring a life-long infamy to her in the society. 19. So far as the offence punishable under Section 363 of IPC is concerned, it is also well proved, when prosecution witnesses clearly narrated that the appellant allured the minor victim aged about 5 years to give her chocolate and money, took her towards the “baadi” forcefully. Under these conditions, the findings of learned trial Court regarding offence punishable under Section 363 of IPC and Section 354, are found infallible and immaculate. Thus, the appeal filed by the appellant deserves to be dismissed. Accordingly, it is dismissed as such. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.23 13:19:52 +0530