1 2025:CGHC:54607 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1928 of 2025 Gopal Gandharv S/o Ganpat Gandharv Aged About 35 Years R/o Bhatchoura, P.S. Pachpedi, District Bilaspur (C.G.) ... Appellant versus State Of Chhattisgarh Through - Station House Officer, Police Station Pachpedi District Bilaspur (C.G.). ---- Respondent ___________________________________________________________ For Appellant : Mr. B.L. Sahu, Advocate For State/Respondent : Ms. Priya Sharma, P.L. ___________________________________________________________ Hon'ble Shri Justice Arvind Kumar Verma Judgment On Board 10/11/2025 1. The appellant has filed the instant appeal under Section 415 (2) of the BNSS, 2023 questioning the judgment of conviction and order of sentence dated 29.08.2025 passed by the Additional Sessions Judge/First F.T.S.C. (POCSO Act), District Bilaspur (C.G.), in Special Criminal POCSO Case No.174/2024, whereby the 2 appellant has been convicted and sentenced as under :- Conviction Sentence In Default Under Section 74 of BNS R.I. for 03 years and fine amount of Rs.100/- In default of payment of fine amount further R.I. for one month Under Section 9(M)/10 of the Protection of Children from Sexual Offences Act, 2012 R.I. for 05 years and fine amount of Rs.200/- In default of payment of fine amount further R.I. for 02 months (Both the sentences have been directed to be run concurrently) 2. Case of the prosecution in brief is that the complainant who is mother of victim, has lodged report to the concerned police station that at the time of incident, when her daughter aged about 5 years, was playing at near her house and at that time, the appellant has tried to outrage of her modestly by using filthy language and thereafter, he run away from the spot. Based upon on such report, police has registered for the offence punishable under section offence under section 74 of B.N.S. and section 9(M)/10 of the Protection of Children From Sexual Offences Act, 2012 against the appellant in crime No. 395/2024. 3. Thereafter, after the completion of the investigation, police has filed charge sheet before learned Upper Sessions Judge /First 3 F.T.S.C. (POCSO Act) District Bilaspur (C.G.) where case commenced for trial in Special S.T. 174/2024. 4. After trial, the appellant have given statement under section 313 of Cr.P.C. and he has denied the allegation against him and he has not produced any witnesses for his defense. 5. The prosecution has examined as many as 09 witnesses, for support of the case of the prosecution and detail of the prosecution witnesses as mentioned in the impugned conviction Annexure A- 1. 6. After recording the evidence and framing issues the learned trial Court vide its impugned judgement of conviction and order of sentence dated 29.08.2025 in Special S.T. No. 174/2024 has convicted the appellant as mentioned above, and passed the impugned judgment of conviction without properly appreciating the material available on record, to adopt the arbitrary manner, passed the judgment of conviction and sentence. Hence, this appeal. 7. Learned counsel appearing for the appellant contended that the learned trial Court has wrongly been convicted the appellant without any sufficient and clinching evidence available on record against the appellant. He further contended that the learned court below did not consider material available on record and convicted 4 for short sentence as mentioned in the cause title against the appellant which is against the law and hence the impugned conviction is liable to be set-aside. He furthe contendd that complainant has made complaint against the appellant without any specific reason based upon the false and baseless of allegation but he has not committed any aforesaid offences as alleged by the prosecution against him. The trial Court relied upon the statement given by mother of victim (P.W. 2) who is not reliable and un- trustworthy, unsupported to the case, and depositions and statement, hence the impugned judgment of conviction is liable to be set-aside. He further contended that the maximum sentence imposed by the trial Court to the appellant RI for 05 years, he is in jail since 05.11.2024. Thus, the appellant is entitled for acquittal. 8. On the other hand, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits that the act committed by the appellant is in serious in nature. She further contended that there is no illegality or infirmity in the finding recorded by the learned trial Court and the impugned judgment of the trial Court needs no interference and the appellant is not entitled to get acquittal. 9. In compliance of Court’s order dated 09.10.2025, victim appeared before this Court along with her mother and on being asked by this Court, she raised objection for suspension of sentence and grant of 5 bail. 10. I have heard learned counsel for the parties, perused the impugned judgment passed by the trial Court as well as other material available on record, with utmost circumspection. 11. Regarding the age of the prosecutrix, the mother of the prosecutrix (PW-2) stated in her evidence that the prosecutrix's current age is 09 years, her date of birth is 5.2.2015, and she is studying in Class V. The mother of the prosecutrix also stated that she had submitted the prosecutrix's marksheet, Article A, and birth certificate to the police station. The father of the prosecutrix (PW-3) stated that the prosecutrix is 9 years old, studying in Class V, and that her year of birth is 2015, and he does not remember her date of birth. Furthermore, the prosecutrix (PW-1) also stated in her evidence that she is 9 years old, studying in Class V, and does not know her date of birth. 12. Headmaster - Dinesh Kumar Sonwani (PW-05) has stated that on receipt of demand letter Ex.P-06 for the admission/discharge register of the prosecutrix who was studying in her school in connection with crime number 395/2024 of Police Station Pachpedi, on providing the true copy of the admission/discharge register relating to the date of birth of the prosecutrix, the police seized it and prepared seizure memo Ex.P-07. The date of birth of the prosecutrix is recorded as 05.02.2015 in serial number 3231 of 6 the original admission/discharge register. The original admission/discharge register is Ex.P-08, the true copy of which is Ex.P-08C and it is mentioned that the prosecutrix was admitted in Class - I on 30.09.2020. The said witness has admitted in cross- examination that the entry in the Dakhil Kharij register is not in his handwriting but the witness himself said that at the time of admission of the prosecutrix, a birth certificate was presented, the photocopy of which he has brought during the evidence in which the date of birth of the prosecutrix is the same. 13. The trial Court has convicted the appellant on the ground that at the time of incident, victim was below 12 years of age, therefore, she was not able to give her consent legally. With regard to age of the victim, the trial Court has relying upon the admission/discharge in which date of birth of victim is mentioned as 05.02.2015. The above finding recorded by the trial Court is based upon the evidence available on record which is not perverse nor contrary to the records. Thus, from the evidence available on record, it is established that at the time of incident, victim was below 12 years of age. 14. The said register was originally submitted before the Court. The said document available on record regarding the age of the victim is a document prepared under official responsibility. Regarding the said official document, the presumption under Section 35 of the 7 Indian Evidence Act supports the document. Section 114 E of the Indian Evidence Act provides for the presumption of regular performance of official duties. There is no material denial of the said document on record from the defence. No such contradictory statement is available on record which shows that the age of the victim was more than 12 years on the date of the incident. 15. In order to consider the version of the victim, I have to examine the evidence/material placed on record by the prosecution. Victim (PW-01) has stated in her deposition that she knew the accused, that he lived in her neighborhood, and that the accused's daughter was the one she used to play with. On the date of the incident, at 5:00 p.m., her brother's friend had given her a ride on his bicycle. The accused then took her daughter on the bicycle and pressed her breasts forcefully, after which she went to her mother, weeping, and told her what had happened. Her mother then went to the accused's house, but the accused was not at home. Her family then went to the police station and filed a report, and she was also taken to a doctor. 16. Considering the facts and circumstances of the case, evidence of the victim (PW-1) who has specifically stated the role of the appellant, evidence of her father (PW-03), her mother (PW-02). Further considering the other material available on record, I am of the considered opinion that the learned trial Court has rightly 8 convicted and sentenced the appellant for offence punishable under Section 74 of the BNS and Section 9(M)/10 of the POCSO Act, 2012. I do not find any illegality or infirmity in the findings recorded by the trial Court with regard to the conviction part. Ordered accordingly. 17. In view of above discussion, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentence as awarded by the trial Court to the appellant is hereby affirmed/maintained. 18. The present criminal appeal lacks merit and is accordingly dismissed and stands disposed of. Sd/- (Arvind Kumar Verma) Judge Vasant