1 2025:CGHC:58802-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1154 of 2022 Vijay Sidar S/o Itwari Sidar Aged About 23 Years R/o Ward No. 9, Bhatgaon, Police Station Bhatgaon, District Baloda Bazar Bhatapara Chhattisgarh. ... Appellant versus State of Chhattisgarh Through Station House Officer, Police Station Bhatgaon, District Baloda Bazar Bhatapara Chhattisgarh. ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Amiyakant Tiwari, Advocate For Respondent : Mr. Nitansh Jaiswal, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on board Per Ramesh Sinha, C hief Justice 04.12.2025 1. This criminal appeal filed by the appellant-accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) is directed against the impugned judgment of conviction and order of sentence dated 20.04.2022, passed by the learned Additional District and Sessions Judge, FTSC (POCSO Act), ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.12.06 11:16:26 +0530 2 Balodabazar (C.G.) in Special Sessions case (POCSO) No.47/2019, whereby the appellant-accused has been convicted for offence under Sections 363 and 377 of the Indian Penal Code, 1860 (for short, ‘IPC’) as well as Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and sentenced to undergo rigorous imprisonment for 03 years and fine of Rs.500/-, in default of payment of fine amount, to further undergo additional rigorous imprisonment for three months, rigorous imprisonment for 10 years and fine of Rs.500/-, in default of payment of fine amount, to further undergo additional rigorous imprisonment for one year and rigorous imprisonment for 20 years and fine of Rs.500/-, in default of payment of fine amount, to further undergo additional rigorous imprisonment for one year, respectively with a further direction to run all the sentences concurrently. 2. Learned State counsel submits that notice issued to PW-2, i.e. the victim has been served, but none has appeared on behalf of the victim to contest the present appeal. 3. The prosecution's case centers on the alleged sexual assault and kidnapping of a 12-year-old minor victim child who is described as being mentally and physically weak. The events unfolded on August 7, 2019, when the complainant, Santosh Chauhan, lodged a report detailing the traumatic experience of his nephew. The minor victim arrived home crying at approximately 3:30 PM and 3 disclosed that about an hour earlier, while he was sitting under a neem tree in Chauhan Mohalla, the accused, Vijay alias Golu Sidar, approached him on a motorcycle under the pretext of offering him a ride. The accused subsequently transported the victim to a secluded field near Tedhi Nala on Devsagar Road. There, the accused allegedly committed an act of penetrative sexual assault, specifically by pulling down the victim's underwear, bending him down, and inserting his penis into the victim's anus, shaking it for a prolonged period until a discharge occurred. Following the assault, the accused returned the minor victim to the vicinity of the neem tree and departed, leaving the child in pain. 4. Based on this grave account, a criminal case, Crime No. 133/2019 (POCSO No. 47/2019), was registered against Vijay alias Golu Sidar under Sections 363 (Kidnapping) and 377 (Unnatural Offences) of the IPC, along with Section 4 of the POCSO Act. 5. The subsequent investigation was thorough, involving the recording of statements from the victim and other pertinent witnesses, notably the victim's statement under Section 164 of the Cr.P.C. to ensure its evidentiary strength. The investigating officer methodically documented the crime details form (Ex.P/2), preparing a panchnama and spot map (Ex.P/4) (which was also prepared by the Patwari), and ensured both the victim and the accused underwent medical examination. Crucial material 4 evidence, including the underwear of both parties, was seized and submitted for medical and chemical testing and FSL which was found to be negative vide FSL report Ex.P/25. 6. Furthermore, documentary evidence establishing the minor age of the victim was secured by seizing the relevant mutation register regarding the birth. Upon completion of the investigation and finding sufficient evidence of the crime, a charge sheet was filed. 7. Ultimately, based on the gravity of the offenses indicated in the prosecution's evidence, the Court proceeded to frame formal charges against the accused not only under Sections 363 and 377 IPC but also under the more severe Section 4 of the POCSO Act. 8. During the trial, the prosecution examined 12 witnesses as PW-1 to PW-12 and exhibited 26 documents (Ex. P-1 to Ex. P-26) in support of its case. The accused, in his statement recorded under Section 313 of the Cr.P.C., denied all incriminating circumstances put to him and claimed false implication. However, he did not examine any defence witness nor produce any documentary evidence in rebuttal. 9. The learned trial Court, upon a thorough appreciation of the oral and documentary evidence brought on record, by judgment dated 20.04.2022, held the appellant guilty of the offence under Sections 363, 377 of the IPC as well as Section 6 of the POCSO Act and sentenced him as aforementioned. Aggrieved thereby, the present criminal appeal has been preferred. 5 10. Mr. Amiyakant Tiwari, learned counsel appearing for the appellant, submits that the impugned judgment of conviction and the consequent order of sentence are wholly erroneous and contrary to the evidence and materials available on record. The judgment suffers from a fundamental misappreciation of evidence, failure to adhere to settled principles of criminal jurisprudence, and lack of application of a judicious and disciplined mind by the learned court below. It is submitted that the prosecution evidence, as recorded in the impugned judgment, does not inspire confidence and cannot form a basis for conviction. The prosecution witnesses have failed to depose any material or incriminating facts against the appellant, and the evidence adduced is neither credible nor self-explanatory. There is no clinching or reliable evidence on record to establish the guilt of the appellant, and in the absence of such evidence, it is impermissible to convict the appellant. 11. Further, it is submitted by Mr. Tiwari that although the charge was framed against the appellant under Section 4 of the POCSO Act, the learned trial court has erroneously convicted and sentenced the appellant under Section 6 of the POCSO Act. The incident in question occurred on 07.08.2019, whereas the amendment to the POCSO Act came into force only on 16.08.2019. Consequently, at the time of the alleged offence, the provisions of Section 4 of the POCSO Act were applicable. Under Section 4 of the POCSO Act, the punishment for penetrative sexual assault is rigorous imprisonment for seven years, and not the twenty years as 6 imposed by the trial Court under Section 6 of the POCSO Act. Therefore, at the very least, the appellant is entitled to the sentence prescribed under Section 4 of the POCSO Act in force at the relevant time. The appellant was also sentenced under Section 377 of the IPC, but the same was linked to the erroneous conviction under Section 6 of the POCSO Act, which is legally impermissible. Therefore, at the very least, the appellant is entitled to sentencing under Section 4 of the POCSO Act, in accordance with the law applicable at the relevant time, and not the harsher sentence imposed by the trial Court. 12. Mr. Tiwari further submitted that there is no evidence on record constituting a complete chain of required elements necessary to establish any offence under the IPC or POCSO Act against the appellant. The conviction appears to have been based solely on inadmissible evidence, material, and circumstances which have no legal relevance in proving the guilt of the appellant. As per settled principles of Indian criminal jurisprudence, following the “innocent until proven guilty” principle, the appellant’s innocence cannot be presumed unless the prosecution proves his guilt beyond reasonable doubt. The prosecution in the present case has failed to establish the concurrence of actus reus and mens rea, as well as the motive and essential ingredients of the alleged offences. It is lastly submitted by Mr. Tiwari that the impugned judgment of conviction and the order of sentence be set aside and quashed, and the appellant be acquitted of all charges. 7 Alternatively, in case this Court finds any merit in the conviction, the appellant may be sentenced in accordance with Section 4 of the POCSO Act, which prescribes rigorous imprisonment for seven years, and not the twenty years awarded by the trial Court. As such, this Court may kindly correct the miscarriage of justice occasioned by the impugned judgment and grant relief in accordance with law. 13. On the other hand, Mr. Nitansh Jaiswal, learned Panel Lawyer appearing for the respondent/State, supports the impugned judgment of conviction and order of sentence passed by the learned trial Court. He submits that the appellant was rightly convicted under the aforementioned sections as the trial court has carefully considered the testimony of the prosecution witnesses and the evidence collected during the investigation. 14. It is further submitted by Mr. Jaiswal that the trial Court, after due appreciation of the evidence, has found the appellant guilty beyond reasonable doubt, and the sentence imposed is appropriate, proportionate, and in accordance with law. As such, the appeal filed by the appellant is liable to be dismissed. 15. We have heard the learned counsel appearing for the parties, considered their rival submissions, and carefully examined the entire record with due circumspection. The arguments advanced on behalf of the appellant and the response of the State have been duly evaluated in light of the oral and documentary 8 evidence, the findings recorded by the trial Court, and the applicable statutory provisions. Upon such comprehensive consideration, we now proceed to deal with the issues arising in the appeal. 16. The only question for consideration in the present appeal is whether the accused–appellant, namely Vijay Sidar, is indeed the perpetrator of the crime in question, and whether the learned trial Court has committed an error in convicting the appellant for the offences punishable under Sections 363 and 377 of the IPC as well as Section 6 of the POCSO Act ? 17. From perusal of the impugned judgment, it transpires that the prosecution successfully established the guilt of the accused, Vijay Sidar, for the serious offenses of kidnapping and penetrative sexual assault on a minor victim. 18. The case was built upon the prompt reporting of the incident by the victim's maternal uncle, Santosh Chauhan (PW-1), who lodged the FIR (Ex.P/1) on the evening of the incident, 07.08.2019, detailing how the accused lured the 12-year-old minor victim away on his motorcycle and sexually assaulted him in a secluded field. The victim's minor status was conclusively proven through documentary evidence, specifically the Dakhil Kharij Register (Ex.P/13) and the original affidavit register (Ex.P/14), which recorded his date of birth as 10.12.2007, making 9 him approximately 11 years and 7 months old at the time of the crime, thus attracting the provisions of the POCSO Act. 19. The core of the prosecution's case rested on the compelling and consistent testimony of the victim himself (PW-2), who provided a complete account of the incident, including being taken on the bike, the removal of his clothes, the act of inserting the accused's "penis" into his back/anus, the subsequent pain, and the death threat issued by the accused to ensure his silence. This account was immediately corroborated by the testimony of his maternal uncle (PW-1) and another relative, Ramayan Chauhan (PW-5), who received the information directly from the crying child. 20. Furthermore, the medical evidence, produced by Dr. Pushpendra Vaishnav (PW-12), strongly supported the assault, mentioning that the victim's anus was funnel-shaped, the sphincters were loose, and multiple scratches were present, leading the doctor to opine that anal sex had been committed more than once. Although the FSL report did not detect semen, the Court correctly concluded that this lack of chemical evidence did not override the strong, consistent, and credible ocular evidence provided by the minor victim, especially in the absence of any contrary reason for the child to falsely implicate the accused. The Court also rejected the defense's unsubstantiated claims of old enmity and the crowded nature of the crime scene. 10 21. Based on this overwhelming and conclusive evidence, the trial Court found the accused, Vijay Sidar, guilty of the offenses under Sections 363, 377 of the IPC, and Section 6 of the POCSO Act. 22. Upon a careful examination of the record, it becomes clear that the charges against the appellant were specifically framed under Section 4 of the POCSO Act, which pertains to the offence of penetrative sexual assault and prescribes the corresponding punishment. However, due to an inadvertent error or oversight in the drafting of the impugned judgment, the conviction has been erroneously recorded under Section 6 of the POCSO Act, which relates to aggravated penetrative sexual assault and carries a substantially higher sentence. 23. Consequently, the Court is required to examine the matter strictly in light of the statutory framework applicable to Section 4 of the POCSO Act at the relevant time of the incident, ensuring that the appellant’s conviction and sentence conform to the correct provision of law. 24. Considering the facts and circumstances of the case, the charges framed against the appellant under Section 4 of the POCSO Act, and keeping in mind the principle of legality and the protection of the appellant’s rights, this Court shall examine the case under Section 4 of the POCSO Act, as originally charged. Section 4 of the POCSO Act specifically deals with penetrative sexual assault, 11 which is the nature of the offence alleged against the appellant in this case. The amendment to the POCSO Act, which introduced changes to Section 4 and Section 6 of the POCSO Act, came into force only on 16.08.2019, which is after the date of the incident. Therefore, the amended provisions could not have any application in the present case. 25. It is an admitted position on record that the incident took place on 07.08.2019, at that time, the provisions of Section 4 of POCSO Act (pre-amendment) were in force, which read as follows:- “4. Punishment for penetrative sexual assault.- Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.” 26. This provision clearly prescribes rigorous imprisonment for a minimum term of seven years for penetrative sexual assault, reflecting the legislative intent to punish such offences severely while also allowing the Court discretion to extend the sentence up to life imprisonment, depending upon the facts and gravity of the case. 27. Considering the totality of facts and circumstances, including the nature of the offence, the age of the victim, and the evidence 12 adduced by the prosecution, it is clear that while the appellant’s conviction under Section 6 of the POCSO Act in the impugned judgment was erroneously recorded, the material on record supports his conviction for penetrative sexual assault under Section 4 of the POCSO Act. Accordingly, the conviction awarded by the trial Court under Section 6 of the POCSO Act is set aside and the appellant is convicted for the offence punishable under Section 4 of the POCSO Act and is sentenced to undergo rigorous imprisonment for 07 years, which is the minimum sentence prescribed under the law at the relevant time. 28. Insofar as the conviction of the appellant under Sections 363 and 377 of the IPC is concerned, this Court finds that the learned trial Court has rightly held the appellant guilty under the said provisions. The ocular testimony of the minor victim, duly supported by the medical evidence and the consistent version narrated by the immediate witnesses, clearly establishes both the act of kidnapping and the commission of unnatural sexual assault. Thus, the conviction under Sections 363 and 377 IPC warrants no interference. 29. As regards the sentence imposed for the offences punishable under Sections 363 and 377 of the IPC, the trial Court has awarded rigorous imprisonment for 03 years under Section 363 IPC and rigorous imprisonment for 10 years under Section 377 IPC. Since this Court has already modified the conviction under 13 the POCSO Act by setting aside the conviction under Section 6 of the POCSO ACt and substituting it with conviction under Section 4 of the POCSO Act (pre-amendment), which prescribes a minimum sentence of seven years’ rigorous imprisonment for penetrative sexual assault, it becomes necessary to reassess the IPC sentences to ensure that the overall punishment imposed remains just, proportionate, and consistent with the evidence proved on record. 30. The conviction of the appellant under Section 363 of the IPC is upheld, as the prosecution has clearly established the act of kidnapping through the testimonies of the victim and supporting witnesses. The sentence of rigorous imprisonment for 03 years awarded by the trial Court for the said offence is found to be appropriate and proportionate, and therefore does not warrant any interference. 31. Similarly, the conviction of the appellant under Section 377 of the IPC is also affirmed, as the medical evidence, coupled with the cogent and consistent account given by the minor victim, conclusively proves the act of unnatural sexual assault committed by the appellant. However, considering that the appellant has remained in custody since 08.08.2019, and keeping in mind the sentence of 07 years rigorous imprisonment now imposed under Section 4 of the POCSO Act, this Court finds it appropriate to modify the sentence imposed under Section 377 of the IPC. 14 32. In view of the substantial period of incarceration already undergone by the appellant, and in order to avoid an unduly harsh cumulative punishment, the sentence under Section 377 of the IPC is reduced to the period already undergone by him, while maintaining the conviction. 33. For the foregoing reasons, the criminal appeal is partly allowed. The conviction of the appellant under Section 6 of the POCSO Act is set aside and is substituted by a conviction under Section 4 of the POCSO Act (pre-amendment), for which he is sentenced to undergo rigorous imprisonment for 07 years. The conviction and sentence under Section 363 IPC are affirmed. The conviction under Section 377 IPC is maintained, but the sentence is modified to the period already undergone. The fine imposed by the learned trial Court shall remain intact. The judgment of conviction and order of sentence of the trial Court stand modified accordingly. 34. It is submitted at the Bar that the appellant is in custody since 08.08.2019. Accordingly, the sentence imposed upon him shall stand modified and the appellant shall serve the remainder of his sentence in accordance with law. 35. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing the jail term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment 15 passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 36. Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Anu