1 2025:CGHC:55751 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on 29.10.2025 Judgment Delivered on 17.11.2025 CRA No. 403 of 2022 1 - Bedram Joshi S/o Gajanand Joshi, Aged About 44 Years R/o Village Pachari, P.S. Patewa, District Mahasamund Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Patewa District Mahasamund Chhattisgarh. ... Respondent (Cause title as taken from Case Information System) For Appellant : Mr. Bharat Lal Sahu, Advocate For State/Respondent : Ms. Anuradha Jain, Panel Lawyer Hon'ble Shri Justice Naresh Kumar Chandravanshi C A V Judgment 1. This criminal appeal is directed under Section 374(2) of the Code of Criminal Procedure,1973 (henceforth ‘Cr.P.C.’) challenging RAVI SHANKAR MANDAVI Digitally signed by RAVI SHANKAR MANDAVI Date: 2025.11.18 12:35:56 +0530 2 judgment of conviction and order of sentenced dated 15.02.2022 passed by the learned Special Judge, (Protection of Children from Sexual Offences Act, 2012) Act, Mahasamund (C.G.) (henceforth ‘Special Judge’) in Special Criminal Case No. H- 42/2019 whereby the learned Special Judge, after holding the appellant/accused guilty, convicted and sentenced him in the following manner : CONVICTION SENTENCE Under Section 8 of the Protection of Children from Sexual Offences Act, 2012 : Rigorous Imprisonment for three years and fine of Rs.2000/-, in default of payment of fine additional Rigorous Imprisonment for three months. The appellant has been convicted for the offence under Section 354 of IPC also but in view of provision of Section 42 of the POCSO Act, he has not been sentenced separately for the offence under Section 354 of IPC. 2. Case of the prosecution in brief is that on 17.11.2018 at about 07:00 a.m. victim was sitting outside of her house alongwith her elder sister Durgesh Kumari talking about election results, at that time appellant came there and he held the cloth of victim and asked her to talk with him making eye-contact. Sister of the minor victim run inside their house. The appellant molested minor victim by pulling her clothes, the complainant, who is elder sister of victim, came there and intervened in the dispute and took victim inside the house and closed gate of their house. In the said altercation mobile of the victim was also broken. Police was informed about the incident. Despite that other accused also 3 reached there pelted stones in the house of the victim, therefore, another elder sister of the minor victim also sustained injuries on her leg. Based on above facts written complaint was made by the elder sister of victim. On the same day i.e. on 17.11.2018 the victim and her sister were got medically examined by Dr. A.S. Kesar (PW-6). Thereafter, on the basis of above facts, FIR Ex.P/10 was registered against the appellant and other 3 accused persons namely Vikas Joshi, Updesh Kumar Markande and Anish Markande for the offence under Section 354B, 294, 323, 324, 427, 506, 509 read with section 34 of Indian Penal Code (henceforth ‘IPC’) and Section 8 of POCSO Act. During investigation spot map was prepared by Police and Patwari which were marked as Ex.P/2 and Ex.P/21 respectively, mark-sheet of the victim of Class X Ex.P/4C was seized vide seizuer memo. Ex.P/3 and torn cloth (kurti) of the victim was seized vide Ex.P/5. School Admission and Discharge register Ex.P/8C pertaining to date of birth of victim was seized vide seizure memo Ex. P/6. Nuksani Panchnama of mobile was prepared vide Ex. P/7. Statement of witness were recorded, appellants were arrested. After completion of investigation, charge-sheet for the offence under Section 354B, 354, 294, 323, 324, 427, 506, 509 read with section 34 of IPC and Section 8 of POCSO Act was filed before Special Court against the appellant and other 3 co-accused persons. 4 3. Charges under Section 294, 427/34, 509/34 of IPC read with Section 12 of POCSO Act, under Section 354/34 IPC read with Section 8 of POCSO Act and for offence under Section 323 read with 34 IPC and Section 506 part-I read with Section 34 was framed against the appellants who abjured their guilt and claimed trial. 4. So as to bring home the charges, the prosecution examined as many as 09 witnesses and exhibited 22 documents. Statement of accused persons under Section 313 Cr.P.C. was recorded in which they denied all the circumstances appearing against them in the deposition of prosecution witnesses, claiming themselves to be innocent and false implication. Accused persons examined one witness Updesh Kumar Markande in their defence and exhibited 9 documents. 5. After examining oral and documentary evidence adduced by both the parties, learned Special Judge, acquitted accused Anish@Karru, Updesh Kumar Markendey & Bedram Joshi granting them benefit of doubt. 6. Learned Special Judge also acquitted the appellant/accused for the offence under Section 294, 427/34, 509/34 read with Section 12 of POCSO Act and Section 323/34 of IPC and Section 506 part-I read with Section 34 of IPC but convicted the appellant/accused for the offence under Section 354 of IPC read with Section 8 of POCSO Act and sentenced him for the offence 5 under Section 8 of POCSO Act. Appellant has not been sentenced separately for the offence under Section 354 IPC in view of provision of Section 42 of the POCSO Act. Being aggrieved the appellant/accused has preferred instant appeal. 7. Learned counsel for the appellant would submits that appellant and victim are resident of same village, neighbour and relatives also. There was previous enmity between both the parties prior to the incident, because on being report lodged by mother of the appellant Jaimati, a criminal case was registered against complainant (PW-2), who is elder sister of victim for the offence under Chhattisgarh Tonahi Pratadna Nivaran Adhiniyam, 2005 and due to which PW-2 was in custody for about 4 to 5 days, therefore, to settle the personal score, appellant and his family members have been falsely implicated in the instant case. He further submits that learned Special Judge has acquitted other accused persons on same set of evidence, therefore, conviction of appellant can not be sustained on the same set of evidence. He further submits that victim herself has admitted in the cross examination that she has double relation with appellant as he is her ekSlk/Uncle and brother also, therefore, if there would have any altercation or physical assault, then it can not be given colour of molestation, rather since there is previous enmity between both the parties on various counts as has been admitted by the victim and her sister P.W.-2 & P.W.-5 in their cross-examination, 6 therefore only to settle the score and to make trivial issue big have exaggerated the act to be molestation. 8. Learned counsel for the appellant would further submits that alleged injuries sustained to victim have been reported to be simple in nature, which could have been caused due to fell down. There is no any cogent evidence to convict the appellant for the alleged offence, despite that learned Special Judge has convicted and sentenced him in the impugned judgment which is perverse and contrary to the record, hence, it is prayed that the appeal may be allowed and appellant may be acquitted of the alleged offences by setting aside the impugned judgment of learned Special Judge. 9. Per contra, learned counsel for the State would submits that impugned judgment passed by learned Special Judge is based on well appreciation of evidences available on record which does not call for any interference in this appeal, hence, the appeal is liable to rejected. 10. I have heard learned counsel for the parties and perused the material available on record along with record of Special Court. 11. As per the case of prosecution, victim was minor on the date of incident i.e. on 17.11.2018. Learned Special Court has held victim minor on the date of incident on the basis of Admission and Discharge Register (Ex.P/9C) which has been proved by Mr. Lakhu Kumar Dhedhi, Headmaster, Govt. Primary School, Pachari and photocopy of her mark-sheet of Class X (Ex.P/4C), which was 7 seized from the victim vide seizure memo Ex. P/3. In both the documents date of birth of victim has been mentioned as 27.10.2001. 12. Victim PW-1 has stated in her deposition that her date of birth is 27.10.2001 and on the date of incident her age was 17 years. PW-2 and PW-5 are elder sisters of the victim, but they have not stated the date of birth of victim in their deposition. 13. Though, victim PW-1 has also stated her date of birth as 27.10.2001, but in cross-examination para-9 she has stated that her actual date of birth is 27.01.2002, but while admitting her in school her age was shorter, therefore, on being asked by the teacher her said date of birth was got recorded by increasing one year in her actual date of birth. She has also admitted in cross examination that on the basis of her date of birth mentioned in the school record, it was carried forward in higher classes. She had tried to get corrected her date of birth, but it was said that various formalities would have been required to be done, hence she could not correct her date of birth recorded in the School record. 14. From perusal of aforesaid deposition of victim, it is evidently clear that date of birth of victim i.e. 27.10.2001, mentioned in school record and in her mark-sheet of Class X is not her actual date of birth. 15. Having considered these contradictory depositions and marginal age of victim on the date of incident i.e. about 17 years, in 8 absence of other reliable evidences, only on the basis of her date of birth mentioned in school record, it cannot be held beyond reasonable doubt that on the date of incident, the victim was minor. 16. Though, as per provision of Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (henceforth, JJ Act, 2015) age of child/juvenile can be determined on the basis of his/her date of birth mentioned in the matriculation certificate or equivalent certificate issued by the concerned examination board. In the instant case, Class X mark-sheet of victim (Ex. P/4C) has been seized in which her date of birth is mentioned as 27.10.2001 which is also mentioned in School Admission and Discharge Register Ex.P/9C of her primary school, but victim herself has contradicted that it is not her actual date of birth. 17. Having considered aforesaid contradictions pertaining to actual date of birth of victim, it can not be held beyond reasonable doubt that on the date of incident victim was minor i.e. below 18 years of age, hence, finding recorded by the learned Special Judge that victim was minor on the date of incident is found to be perverse and illegal, resultantly, it is not sustainable and the same is set aside. 18. So far as, conviction of appellant for the offence under Section 354 of IPC / Section 8 of POCSO Act is concerned, victim PW-1 has stated in her deposition that at the time of incident she was 9 sitting in front of their house along with her sister and talking about election atmosphere in the village, at that time appellant got angry and asked her to talk to him with eye contact and started touching her with bad intention and also started fighting with her and scrambled her. She has further stated that at that time other accused persons also reached there and instigating the appellant- Bedram by saying to beat them and they will rape all the girls of their house. When she tried to escape, appellant pushed her due to which she fell down, then appellant kicked her from behind and pulled her hair. She has further stated that accused persons reached the door of their house, at that time her elder sister arrived, intervened and took her inside the house and closed the gate/door of their house. In cross examination para 23 she has stated that though blood was not oozing in the aforesaid assault but she has sustained rashes on account of assault by appellant. 19. Victim PW-1 has been examined by Dr. A.S. Kasar (PW-6), on the date of incident i.e. 17.11.2018 in which he found multiple abrasions on her left shoulder and she was complaining pain on back side of her head. He opined that all the injuries were simple in nature. His deposition also got support from MLC report Ex.P/11 prepared by him. 20. Dr. A.S. Kasar (PW-6) has further deposed that on the same date i.e. 17.11.2018, on being brought by same constable he has also examined Hemesh Kumari (PW-5) (somewhere her name mentioned as Thanesh/Dhanesh) in which he found swelling on 10 her left foot, in this regard he prepared MLC report Ex.P-12, but Hemesh/Thamesh/Dhanesh (whatever her name) who has been examined as PW-5 has not stated that she had sustained any injury on her foot. 21. PW-2 is elder sister of victim. As per her deposition, at the time of incident she was sweeping towards garden (ckM+h) and on being informed by her younger sister (who was sitting with the victim outside the house), she reached on the spot and protected victim who was crying for help. At that time she had seen that appellant was assaulting the victim by holding her hairs and other accused persons were abusing and instigating appellant. Though PW-2 has stated in her deposition that appellant had pushed victim by holding her breast, but this fact does not get support from the victim herself, as she has not stated that appellant had touched/held her breast. Statement of victim only get support from deposition of PW-2 to the extent that appellant was assaulting victim and also pushed her. 22. PW-5 is another elder sister of victim. At the time of incident, she was sleeping and she woke up after hearing cry of victim, thereafter, she was informed about the incident that appellant and other accused persons assaulted victim, molested her by holding her hands, chest and also pushed her, but she herself had not seen the incident, thus, she is only hearsay witness. 11 23. Appellant has been convicted for the offence of sexual assault/assault with intention to outrage modesty of victim. Elder sisters of victim PW-2 and PW-5 have stated in their deposition that while assaulting victim, appellant had hold her hand, breast and also pushed her by holding her breast. Though victim has also stated in her deposition that appellant assaulted her, scrambled her, hold her with ill intention and also pushed her, but she has not stated in her deposition that appellant had hold her breast. Victim PW-1 has admitted suggestion of learned defence counsel in her cross-examination in para 12 that she has double relation with the appellant as he is her ekSlk /Uncle (husband of sister of her mother) and brother also. She has also admitted that other accused persons are her brother in distant relation, they are neighbours also. From admission of victim and her sisters PW-2 and PW-5, it is found that there is previous enmity between both the families on various counts. PW-2, who is elder sister of victim had remained in jail for about 4 to 5 days on being report lodged by mother of the appellant against her under Chhattisgarh Tonahi Pratadna Nivaran Adhiniyam, 2005, prior to instant incident. 24. Updesh Kumar Markande who was co-accused in the instant case has examined himself as defence witness and exhibited charge- sheet Ex.D/1 filed against PW-2 for the offence under Section 294, 323, 454 and 506 and Section 4 & 5 of Chhattisgarh Tonahi Pratadna Nivaran Adhiniyam, 2005. 12 25. Ex.D/2 is another charge-sheet filed against PW-2 and her other sisters including their mother and father for the offence under Section 452, 294, 323/34 of IPC and various other complaints Ex. D/2 to D/7 were also made against victim party, thus, it is evident that there is various disputes between appellant/other accused persons and victim party to which various cases are pending against family members of victim. 26. Having considered such enmity between both the parties, relation between victim and the appellant as has been admitted by victim herself and in absence of support of victim herself it can not be held beyond reasonable doubt that appellant had assaulted and pushed victim with any sexual intent or with intention to molest her, rather it is found proved from the deposition of victim and her sisters that appellant had assaulted victim and caused simple injury to her, but it was not done by him with any sexual intent or to molest her. Therefore, from the evidence available on record charges levelled against appellant under Section 354 of IPC /Section 8 of POCSO Act is not proved beyond reasonable doubt, instead thereof, since the appellant had assaulted victim and pushed her, therefore, she has fell down on the ground and sustained simple injury, as such, offence under Section 323 of IPC is found proved against the appellant instead of aforesaid offence. 27. In view of the above discussion, I feel inclined to allow instant appeal in part and judgment of conviction and order of sentence passed by learned Special Judge against appellant for the offence 13 under Section 354 of IPC / under Section 8 of POCSO Act is set aside instead thereof, the appellant is convicted for the offence under Section 323 of IPC. 28. As per the certificate prepared by learned Special Judge under Section 428 Cr.P.C., the appellant has remained in custody for one day. Therefore, having considered the facts and circumstances of the case, the appellant/accused is awarded sentence of one day (which he has already served therefore, he is not required to surrender) and to pay fine of Rs.1000/-, in default of payment of fine amount, he shall undergo simple imprisonment for one month. Fine amount deposited by the appellant, if any, shall be adjusted against aforesaid fine amount. 29. Accordingly, this appeal is allowed in part, to the extent indicated herein-above. 30. Record of court below be returned forthwith alongwith copy of this judgment for needful compliance, if any. Sd/- (Naresh Kumar Chandravanshi) Judge Ravi Mandavi