1 CRA No. 546 of 2023 2025:CGHC:24531 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 546 of 2023 [Arising out of judgment dated 23.04.2022 passed in Filing No-Spl. ST POCSO/173/2017 by the Additional Sessions Judge Jashpur/Additional Charge F.T.C., Jashpur District - Jashpur, Chhattisgarh.]  Ramdayal Yadav S/o Jodhan Yadav, aged about 27 years, R/o Village Dumripani (Machli), Police Station Bagicha, District : Jashpur, Chhattisgarh. ... Appellant versus  State of Chhattisgarh, through the Police Station Bagicha, District : Jashpur, Chhattisgarh. ... Respondent For Appellant :- Mr. Ayush Verma, Advocate, on behalf of Mr. on behalf of Mr. Vivek Sharma, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For State-Respondent :- Mr. R.S. Marhas, Additional Advocate General and Mr. Afroz Khan, Panel Lawyer. ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.06.19 16:44:45 +0530 2 CRA No. 546 of 2023 Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 16/06/2025 1. Assailing the legality, validity, correctness of order and judgment dated 23.04.2022 passed by the Additional Sessions Judge, Jashpur/Additional Charge F.T.C., Jashpur, District – Jashpur, Chhattisgarh, in Filing No.-Spl. ST POCSO/173/2017, the appellant has preferred this criminal appeal under Section 374(2) of the CrPC, by which the appellant herein has been convicted for offence under Section 6 of the POCSO Act (for short “the Act”) and sentenced thereunder to suffer rigorous imprisonment for 10 years with fine of 100/-; in default of payment of fine amount the ₹ appellant has to undergo additional rigorous imprisonment for one day. Prosecution Case:- 2. The case of the prosecution as projected by the prosecution and accepted by the trial Court is that on 08.04.2017 at about 8:30 am, at village Rengle Raitangar, Police Station Bagicha, District Jashpur, Chhattisgarh, the appellant herein committed aggravated penetrative sexual assault upon the 3 CRA No. 546 of 2023 minor victim (PW-1) and thereby, he committed the aforesaid offence. The said incident was reported by father of the victim (PW-2) pursuant to which FIR was registered vide Ex.P/1 against the unknown person for offence under Section 354A IPC and Section 12 of the Act. Test identification parade was conducted vide Ex.P/7, proved by Mukhdev Prasad Yadav (PW-9), Executive Magistrate, in which the victim (PW-1) identified the appellant herein. Thereafter, on the finding, offences under Sections 376 & 511 of the IPC were also inserted. Wheels of investigation started running and the appellant was arrested. Minor victim (PW-1) was medically examined by Dr. V. Bakhla (PW-8), who prepared the victim’s medical report vide Ex.P/5, in which no external injury was found over the body of the victim however, on refusal internal examination of the victim could not be done. As per dakhil khariz register (Ex.P/15) date of birth of the victim is 18.03.2007, meaning thereby, on the date of incident i.e. 08.04.2017, she was aged about 10 years. 3. After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of 4 CRA No. 546 of 2023 Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 12 witnesses; exhibited 16 documents, whereas, the appellant in defence has neither examined any witness nor exhibited any document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the parties:- 6. Mr. Ayush Verma, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in 5 CRA No. 546 of 2023 convicting the appellant for the offence in question. He would also submit that the FIR was lodged against the unknown person for offence under Section 354A and Section 12 of the Act and the victim has also not supported the case of the prosecution to the extent of aggravated penetrative sexual assault. He would further submit that if the case of the prosecution is taken as it is, at the most, the offence under Section 376/511 and Section 6/18 of the Act would be made out and by virtue of Section 42 of the Act, the appellant may be sentenced for offence under Section 6/18 of the Act and sentenced to the period already undergone by him, as the appellant is in jail from 03.05.2017 to 14.12.2018 and since 18.02.2020, more than 6 years. Thus, the appeal deserves to be allowed in full or part. 7. Mr. R.S. Marhas & Mr. Afroz Khan, learned State counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence in question as the the victim (PW-1) as well as her father (PW-2) have clearly implicated the appellant in crime in question 6 CRA No. 546 of 2023 and, therefore, the appeal deserves to be dismissed and the appellant is not entitled for acquittal. 8. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records meticulously. Discussion and analysis:- 9. Admittedly, the date of birth of the victim as per the dakhil khariz register (Ex.P/15) is 18.03.2007 and the date of incident is 08.04.2017, meaning thereby, the victim was minor and aged about 10 years and 21 days on the date of offence. A careful perusal of the FIR (Ex.P/1) would show that father of the minor victim (PW-2) reported the matter against the unknown person by stating that the unknown person was trying to caught hold of her daughter (PW-1) and he (PW-2) was solicited by her daughter and thereafter he reached on the spot and on being called by him (PW-2), that unknown person absconded from the spot and ran towards the dense forest and thereby that unknown person committed the aggravated penetrative sexual assault upon the victim. Thereafter, the FIR (Ex.P/1) offence under Section 354A of the 7 CRA No. 546 of 2023 IPC and Section 12 of the Act was registered against that unknown person on the report of the victim’s father (PW-2) and later on offence under Sections 376/511 of the IPC were also added. After test identification parade conducted by Mukhdev Prasad Yadav (PW-9), Executive Magistrate, in which the minor victim (PW-1), identified the appellant vide Ex.P/7, which appears to be correct. As such, it is proved that after committing the criminal act with minor victim (PW-1 ), the appellant absconded from the spot. 10. However, minor victim (PW-1) was medically examined by Dr. V. Bakhla (PW-8), who prepared the victim’s medical report vide Ex.P/5 in which no external injury was found over the body of the victim however, on refusal internal examination of the victim could not be done. But, she (PW-1) has categorically stated in her statement before the Court that the appellant had touched her private part and also undressed her. Though in her cross-examination she has stated that the appellant has not committed any criminal act, but considering the evidence available on record and further considering the FIR (Ex.P/1) lodged by the victim’s father (PW-2) in which he (PW-2) has clearly stated that the 8 CRA No. 546 of 2023 unknown person had caught hold of her daughter in order to sexually assault her and that unknown person was identified by the minor victim (PW-2) in identification parade vide Ex.P/7. In my considered opinion, the conviction and sentence of the appellant for offence under Section 6 of the Act is hereby set aside and the offence under Section 354A of the IPC and Section 9(m) of the Act for offence of aggravated sexual assault would be made out against the appellant as the victim was less than 12 years of age on the date and time of offence and the punishment for offence under Section 9(m) of the Act is prescribed in Section 10 of the Act and, as such, the appellant is convicted for offence under Section 354A of the IPC and Section 10 of the Act however, by virtue of Section 42 of the Act, the appellant is sentenced to undergo rigorous imprisonment for six years for offence under Section 10 of the Act as the same is greater in degree to that of Section 354A of the IPC. 11. Accordingly, this appeal is allowed to the extent indicated herein above. 12. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the 9 CRA No. 546 of 2023 copy of this judgment be sent to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence as well as to the Secretary, High Court Legal Services Committee, forthwith for information and necessary action, if any. /- Sd/- (Sanjay K. Agrawal) Judge Ankit