1 2025:CGHC:59819 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1977 of 2025 1 - Pratik Sen @ Rohit Sen S/o Sheshman Sen Aged About 19 Years R/o Ward No. 15 Aamakherwa, Police Station- Manendragarh, District Koriya C.G. (Now M.C.B.) ... Appellant(s) versus 1 - State Of Chhattisgarh Through P.S. Manendragarh, District Koriya C.G. (Now M.C.B.) ... Respondent(s) For Appellant(s) : Shri Hemant Agrawal assisted by Shri Shivam Agrawal, Advocate For Respondent/State : Ms. Priya Sharma, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 09/12/2025 This Criminal Appeal has been preferred under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the appellant assailing the judgment dated 23.08.2025 passed by the learned Additional Sessions Judge, Fast Track Court (Special POCSO), 2 Manendragarh, District–Koriya (C.G.) in Special Criminal Case No. 02/2024, whereby the appellant has been convicted under Sections 354, 354(D), 506 (Part-II) of the Indian Penal Code, 1860 and Section 10 of the POCSO Act, 2012, and sentenced to undergo RI for 3 years under Sections 354, 354(D) and 506 Part-II IPC and to undergo RI for 5 years under Section 10 of the POCSO with default stipulation. 2. The prosecution case, in brief, is that the prosecutrix, a minor girl aged about 16 years at the relevant time, lodged a written complaint at Police Station Manendragarh alleging that the appellant had been continuously following, teasing, and stalking her since the year 2022. It is alleged that earlier also, in the year 2022, the prosecutrix had lodged a report against the appellant for outraging her modesty, pursuant to which the appellant was arrested and later released on bail. After his release, the appellant allegedly renewed his acts of harassment, followed the prosecutrix on a motorcycle while she was going to school, passed obscene remarks, caught hold of her hands, threatened her with dire consequences, and repeatedly pressurized her to withdraw the earlier case. The prosecution further alleged that the appellant threatened the prosecutrix that in case she reported the matter again to the police, he would kill her. On 09.01.2024, when the prosecutrix was going to school at around 9:00 a.m., the appellant allegedly again followed her, restrained her way, used criminal force with intent to outrage her modesty, and extended threats to her life. 3. On the basis of the said complaint, FIR was registered under Sections 341, 354, 354(A), 354(D), 506 (Part-II) IPC and Section 8 of 3 the POCSO Act, which upon investigation culminated into filing of charge-sheet for offences under Sections 341, 354, 354(D), 506 (Part-II) IPC and Section 10 of the POCSO Act. 4. During investigation, the age of the prosecutrix was determined on the basis of birth certificate issued by the competent municipal authority showing her date of birth as 03.01.2006, thereby establishing that she was a minor on the date of incident. The prosecution examined the prosecutrix, her parents, the investigating officer, medical and documentary witnesses. The Trial Court, after appreciating the evidence on record, convicted the appellant and sentenced him as aforesaid. 5. The appellant was charged as stated above who denied the charges and claimed to be tried. Prosecution in order to establish the case, examined as many as 8 witnesses. Statement of the accused under Section 313 Cr.P.C. was recorded in which he pleaded his innocence and false implication in the case. 6. Learned trial court after appreciating the evidence and material on record, found the appellant guilty of the aforesaid offences and convicted him as stated about by the impugned judgment. 7. Learned counsel appearing for the appellant vehemently assailed the impugned judgment and submitted that the conviction is based solely on the testimony of the prosecutrix and her interested relatives, without any independent corroboration, despite the alleged place of incident being a public place. It was contended that there are material 4 contradictions and exaggerations in the statements of the prosecutrix, and the Trial Court failed to properly appreciate the inconsistencies in the prosecution evidence. It is further argued that the age determination of the prosecutrix is not legally proved, as the birth certificate relied upon by the prosecution was not supported by primary evidence, and the possibility of manipulation cannot be ruled out. Without prejudice to the above submissions, learned counsel fairly submitted that even if the conviction is sustained, the sentence of 5 years is grossly disproportionate, harsh, and excessive considering the nature of allegations, absence of penetrative sexual assault, lack of physical injury, and the fact that the appellant has already undergone a substantial period of incarceration. 8. Counsel for the appellant submits that it is not a case of aggravated sexual assault and is a case of sexual harassment. Section 10 of the POCSO Act reads as under: 10. Punishment for aggravated sexual assault: 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.” 9. Learned counsel for the appellant contended that the conviction of the appellant under Section 10 of the POCSO Act is legally unsustainable. It was submitted that, as per the prosecution itself, the date of birth of the prosecutrix is 03.01.2006, and therefore, on the date 5 of the alleged incident, i.e., 09.01.2024, she had already attained the age of 18 years, rendering the provisions of Section 10 of the POCSO Act inapplicable. 10. It was further argued that even otherwise, the allegations made in the FIR and the evidence adduced during trial disclose no specific dates, time, or particulars of repeated sexual assault so as to constitute “aggravated sexual assault” within the meaning of Section 10 of the Act. The allegations primarily pertain to following the prosecutrix, restraining her way, using criminal force with intent to outrage her modesty, and extending threats, without any clear allegation of aggravated sexual assault. Learned counsel for the appellant submitted that from the evidence on record, at best, a solitary incident dated 09.01.2024 is proved, which may attract the offence of sexual harassment under Section 11(iv) of the POCSO Act, punishable under Section 12, where the maximum sentence prescribed is three years. 11. It is pertinent to mention here that the statement of the prosecutrix under Section 164 Cr.P.C has been recorded wherein she has specifically stated in para 2 that “--------------------- vfHk;qDr ls esjh lks’ky lkbZV ds ek/;e ls tku igpku gqbZ Fkh] ge nksuks fQj vkil esa ckrphr djuk ‘kq: dj fn;s]vfHk;qDr baLVkxzke ij eq>s ilan djus rFkk mlds lkFk ?kqeus pyus ds fy, dgrk Fkk ijarq eSa vfHk;qDr dks euk dj nh vkSj mls CykWd dj nhA” In para 3, she has stated that “izrhd esjk ihNk djrk Fkk rFkk eq>s jksdus dh dksf’k’k djrk Fkk] mlh nkSjku vfHk;wDr cqjh fu;r ls esjk gkFk idMrk Fkk rFkk dsl okil ugha ij tku ls ekjus dh /kedh nsrkFkk ftlls eSas Hk;Hkhr ,oa 6 ijs’kku gks x;h FkhA tc eSa vius ekrk firk ;k fj’rsnkjksa ds lkFk cktkj tkrh Fkh ml nkSjku Hkh vfHk;qDr esjk ihNk djrk FkkA 12. Without prejudice to the above submissions, it was argued that the appellant has already undergone nearly two years of incarceration, and therefore his sentence may be reduced to the period already undergone. It is submitted that the appellant is a young person, has no other criminal antecedents except the present case, belongs to a poor background, and has already suffered prolonged incarceration during trial and appeal. 13. Per contra, learned State counsel supported the impugned judgment in toto and submitted that the trial Court has rightly convicted the appellant after proper appreciation of oral and documentary evidence. It was contended that the testimony of the prosecutrix inspires confidence and is corroborated by surrounding circumstances, previous conduct of the appellant, and documentary evidence relating to age determination. Learned State counsel further argued that the prosecutrix being a minor, the offence assumes greater gravity, and the repeated acts of stalking, intimidation, and sexual assault justify the imposition of severe punishment. It was submitted that the sentence awarded by the Trial Court is commensurate with the seriousness of the offence and acts as a deterrent to such crimes against children. 14. Heard the counsels for the parties and perused the material on record. 7 15. The following points arise for consideration in this appeal: (i) Whether the conviction of the appellant under Sections 354, 354(D), 506 (Part-II) IPC and Section 10 of the POCSO Act calls for interference? 16. Upon meticulous examination of the record and evidence, this Court finds that the testimony of the prosecutrix is consistent, cogent, and trustworthy, and her version finds support from the evidence of her parents and the investigating officer. From a conjoint reading of the FIR, the statement of the prosecutrix and the evidence adduced during trial, it is evident that only once specific incident dated 09.01.2024 has been clearly proved, wherein the appellant followed the prosecutrix, restrained her way, used criminal force with intent to outrage her modesty and extended threats. 17. The age of the prosecutrix stands duly established from the birth certificate issued by the competent authority, wherein her date of birth is recorded as 03.01.2006 ie. approximately 17 years at the time of incident, which is further corroborated by oral evidence on record. Consequently, it is evident that the prosecutrix was more than 12 years of age on the date of the alleged incident. However, the prosecution has failed to prove that appellant repeatedly or more than once, committed sexual assault on the child (minor victim) and the essential ingredients of Section 9 of the Act, which contemplates aggravated sexual assault. It is pertinent to mention here that before the incident, there was intimacy between the appellant and the victim as they were known to 8 each other through instagram and thereafter, she blocked the instagram account of the appellant but the appellant pressurized her by following, teasing, and stalking her. The prosecution has proved only a single incident dated 09.01.2024, wherein the appellant is alleged to have followed the prosecutrix and restrained her. Such an act, in the absence of evidence establishing the requisite intention and use of criminal force as contemplated under Section 9 of the Act, does not fall within the ambit of the said provision. Accordingly, the conduct attributed to the appellant does not attract the offence under Section 9 of the Act, and consequently, the provisions of Section 10 thereof are not applicable to the facts of the present case. 18. This Court is therefore, of the considered opinion that the offence under Section 10 of the POCSO Act is not made out against the appellant. However, the act proved on 09.01.2024 squarely falls within the definition of “sexual harassment” under Section 11(iv) of the POCSO Act which is punishable under Section 12. As per Section 12 of the POCSO Act, the punishment prescribed may extend to three years and fine. 19. In view of the law laid down by the Supreme Court in Jarnail Singh v. State of Haryana (2013) 7 SCC 263, the documentary evidence relied upon by the prosecution is sufficient to establish her to be minor. The appellant has committed the offences under Sections 354, 354(D), 506 (Part-II) IPC and Section 12 of the POCSO Act instead of Section 10 of the Act. Accordingly, the conviction of the appellant is 9 affirmed. (ii) Whether the sentence imposed by the Trial Court is excessive and requires modification? 20. However, so far as the quantum of sentence is concerned, this Court finds substance in the submission of learned counsel for the appellant. The acts attributed to the appellant primarily relate to stalking, criminal intimidation, and use of criminal force with sexual intent. It is also relevant to note that the appellant is a first-time offender and there is nothing on record to indicate that he has any previous criminal antecedents, which factor deserves due consideration while appreciating the overall facts and circumstances of the case. 21. The appellant has already undergone a considerable period of incarceration and has been in continuous judicial custody since 10.01.2024 having already suffered imprisonment for more than one year and 11 months which aspect merits due consideration by this Court. There is nothing on record to suggest that he is a habitual offender or that his release after undergoing a reduced sentence would pose a threat to society. Sentencing is not merely punitive but also reformative. The punishment must be proportionate to the nature of offence, degree of culpability, and surrounding circumstances. 22. In the considered opinion of this Court, ends of justice would be adequately met by reducing the substantive sentence to the period 10 already undergone. Accordingly, while maintaining the conviction of the appellant for the offence of sexual harassment under Section 11(iv) punishable under Section 12 of the POCSO Act, the sentence of five years rigorous imprisonment imposed by the Trial Court is modified and reduced to the period already undergone by him. The appeal is thus partly allowed to the extent indicated above. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2026.01.27 11:13:28 +0530