1 2026:CGHC:7014 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1150 of 2016 Shivkumar Gadhewal S/o Foolchand Gadhewal Aged About 20 Years R/o Vil- lage Ghanwa, Thana Janjgir, District Janjgir Champa, Chhattisgarh., Chhat- tisgarh ... Appellant(s) versus State Of Chhattisgarh Through Police Station Janjgir, Civil And Revenue Dis- trict Janjgir Champa, Chhattisgarh., Chhattisgarh ... Respondent For Petitioner : Mr. Samir Singh, Advocate For Respondent : Dr. Surendra Dewangan, P.L. Hon'ble Shri Justice Arvind Kumar Verma, Order on Board 09/02/2026 1. With the consent of the parties, the present matter is heard 4nally. 2. This criminal appeal has been preferred by the appellant against the judgment of conviction and order of sentence dated 07.09.2016, passed in Special Session Case No. 38/2015, by which the learned Ad- ditional Sessions Judge, Fast Track Court, Janjgir, District Janjgir Champa, (CG), whereby the appellant has been convicted and sen- tenced as follows:- Convicted under Sec- tions Sentenced to 10 of the POCSO R.I. for 5 years with 4ne of Rs. 5000/- and, in default of pay- ment 4ne, additional R.I. for 6 months 2 3. The prosecution case, in brief, is this that the prosecutrix is a resident of Village Dhanwa. Shivkumar, who is also a resident of the same village, used to frequently harass the prosecutrix. Whenever she went any- where, he would wink at her on the way, throw stones at her, and on one occasion caught hold of her while saying that she should marry him. There is a school adjacent to the house of the prosecutrix. The accused wrote the name of the prosecutrix on the wall of the school and also wrote his own name along with the name of the prosecutrix on the para- pet of the pond and on trees, using 4lthy and obscene words, thereby defaming her. Whenever the prosecutrix went to school, the accused used to follow her and harass her. Despite repeated warnings and ad- vice given by the father of the prosecutrix to the accused, he did not de- sist from his acts. On 15.06.2015, when the accused again started teasing and molesting the prosecutrix, she informed her elder brother, Dhirendra, about the incident. When her elder brother went and ob- jected to the accused’s conduct and asked him to stop teasing her, the accused threatened him with dire consequences and threatened to kill him. Due to the repeated acts of harassment by the accused, the pros- ecutrix became highly distressed. In respect of the said incidents, the prosecutrix lodged a report at the police station, pursuant to which Po- lice Station Janjgir registered an oAence against the accused. The case was taken up for investigation. During the course of investigation, state- ments of the prosecutrix and other witnesses were recorded, the spot map was prepared, and after completion of the entire investigation, the charge-sheet was 4led before the competent Court. 4. After hearing counsel for the parties and appreciating evidence avail- able on record, the trial Court vide impugned judgment convicted the appellant under Section 10 of POCSO Act and sentenced the 3 accused/appellant in the manner as described above of this judgment. Hence this appeal. 5. The appellant was in custody from 01.07.2015 to 03.07.2015 (3 days),. Thereafter he was in jail from 07.09.2016 to 27.10.2016 (total one months and 23 days). 6. Learned counsel for the appellant submits that there are contradictions and inconsistencies in the testimonies of the prosecution witnesses, es- pecially regarding the location, timing and nature of the alleged act. He further submits that the conviction is primarily based on the sole testi- mony of the victim, without any corroborating evidence. The medical ev- idence does not establish any injury. Moreover, the FIR is silent on ma- terial facts which later appeared in deposition. No independent or eye- witness corroborates the prosecution story. The trial Court ought to have disbelieve the statement given by witnesses, as they are related witnesses. Learned counsel for appellant submits that the testimonies of prosecution witnesses are not reliable and charges are not proved by the prosecution. From the plain reading of the FIR, it gives the conclu- sion that the matter got converted to junk the personal grudge through police machinery by exercising the bene4t of caste. The judgment of the trial Court is bad in law as well as on facts. The learned trial Court ought not to have convicted and sentenced the appellant and ought to have given the bene4t of doubt since the evidence submitted by the prosecution is very shaky and unbelievable. The Court below failed to appreciate the evidence and documents available on record. There are material contradictions and omissions in the statement of the com- plainant. Therefore, learned counsel for the appellant submits that Sec- tion 10 of the POCSO Act is not applicable to the facts of the present case, as the alleged acts do not satisfy the essential ingredients of “sexual assault” as de4ned under Section 7 of the POCSO Act. It is 4 contended that there is no material on record to establish physical con- tact with sexual intent so as to attract Section 7 and, consequently, Section 10 of the Act. At the most, the allegations disclose an oAence of sexual harassment, for which punishment is speci4cally provided under Section 12 of the POCSO Act. Therefore, the learned trial Court erred in convicting the appellant under Section 10, and this Hon’ble Court may consider altering the conviction to one under Section 12 of the POCSO Act, in the interest of justice. 7. Learned counsel for the appellant further submits that he does not want to press this appeal on merits and con4ne his arguments to the sen- tence part thereof only. Further, learned counsel for appellant submits that the appellant at present is aged about 30 years and as he is facing criminal trial since 2015 and the appellant has already undergone more than one months and 23 days awarded by the trial Court There is also no previous criminal antecedents against the appellant. Therefore, the jail sentence awarded to the appellant may be reduced to the period al- ready undergone by him. Learned counsel for appellant placed his re- liance upon the decisions of the Coordinate Bench of this High Court in the matters of Ajay Kumar Sarthi V. State of Chhattisgarh in CRA No. 243 of 2022, Pritam Patel Vs. State of Chhattisgarh in CRA No. 903 of 2015 and Yogendra Singh Markam Vs. State of Chhattis- garh in CRA No. 1760 of 2022, the Cor-ordinate Bench has reduced the sentence to the period already undergone, and therefore, similar re- lief may be extended to the appellants herein as well. 8. Learned State Counsel, on the other hand, would submit that the prose- cution has been able to prove the oAences beyond reasonable doubt and the conviction of the appellant is well merited and needs no interfer- ence. As such, the appeal deserves to be dismissed. 5 9. Heard learned counsel for the respective parties and perused the recorded placed on record. 10.On perusal of records it transpires the fact that the prosecutrix, a resi- dent of Village Dhanwa, was repeatedly harassed by the accused Shiv- kumar, a co-villager, who used to tease her, follow her, pass obscene gestures, write her name along with 4lthy words on public places, and once caught hold of her on the pretext of marriage. Despite repeated warnings by her father, the accused continued his acts. On 15.06.2015, when the accused again molested the prosecutrix and threatened her brother with dire consequences, she lodged a report at Police Station Janjgir. 11.As regards submission made by the appellant that Section 10 of the POCSO Act is not applicable to the facts of the present case, as the al- leged acts do not satisfy the essential ingredients of “sexual assault” as de4ned under Section 7 of the POCSO Act. It is contended that there is no material on record to establish physical contact with sexual intent so as to attract Section 7 and, consequently, Section 10 of the Act. At the most, the allegations disclose an oAence of sexual harassment, for which punishment is speci4cally provided under Section 12 of the POCSO Act. 12.Section 7 Sexual Assault of POCSO Act provides as under:- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such per- son or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. 13.In the present case, the appellant has not committed any act which would fall within the ambit of “sexual assault” as de4ned under Section 7 of the POCSO Act, as there is no evidence of physical contact with 6 sexual intent attributable to the appellant. Consequently, the ingredients necessary to attract Section 7, and therefore Section 10 of the POCSO Act, are not made out against the appellant. 14. Victim (PW-1) stated in her deposition that her father and brother were residing in Jammu and Kashmir for employment, while she lived in Vil- lage Ghanwa with her mother and siblings and was pursuing her stud- ies. The accused enquired about her name and thereafter expressed his love, which was clearly refused by the prosecutrix. Despite her re- peated refusals, the accused continued to harass her. The accused persistently followed the prosecutrix to her school and conveyed mes- sages through other boys asking her to meet him. On one occasion, while she was returning from school, the accused caught hold of her hand and attempted to give her Fowers, which she declined. He also shouted her name in public and wrote her name at the bathing platform near the village pond. The prosecutrix submitted a written complaint at the police station, which is Ex. P-1. 15.The testimony of the prosecutrix is further corroborated by Reshamlal (PW-2), Kheekh Bai (PW-3), Ramhaiyalal (PW-4), and Dhirendra Ku- mar (PW-5), who consistently stated that the accused used to follow, tease, catch hold of the prosecutrix’s hand, write her name along with obscene remarks at public places, and threaten her with dire conse- quences if the matter was disclosed. 16.The prosecution witnesses uniformly established a continuous course of conduct amounting to sexual harassment and stalking, thereby lend- ing full corroboration to the version of the prosecutrix. 17.Section 11 of POCSO Act provides that Sexual Harassment :- A per- son is said to commit sexual harassment upon a child when such per- son with sexual intent,-- 7 (i) utters any word or makes any sound, or makes any ges- ture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or (ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or (iii) shows any object to a child in any form or media for pornographic purposes; or (iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or (v) threatens to use, in any form of media, a real or fabri- cated depiction through electronic, 4lm or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or (vi) entices a child for pornographic purposes or gives grati4- cation therefor. Explanation.--Any question which involves '[sexual intent" shall be a question of fact. 18. Section 12 of PCOSO Act provides as under: Punishment for sexual harassment.—Whoever, commits sexual harassment upon a child shall be punished with impris- onment of either description for a term which may extend to three years and shall also be liable to 4ne. 19.Having regard to the nature of the acts proved against the appellant, this Court is of the considered opinion that the prosecution evidence es- tablishes a continuous course of conduct amounting to sexual harass- ment and stalking, as de4ned under Section 11 of the POCSO Act, but does not disclose the essential ingredients of “sexual assault” under 8 Section 7, so as to attract punishment under Section 10 of the POCSO Act. The acts attributed to the appellant—namely, repeatedly following the prosecutrix, teasing her, making obscene gestures, writing her name with 4lthy words at public places, and catching hold of her hand— squarely fall within the ambit of sexual harassment punishable under Section 12 of the POCSO Act. 20.Accordingly, the conviction of the appellant under Section 10 of the POCSO Act is hereby set aside and is converted to a conviction under Section 12 of the POCSO Act. Considering that the appellant has al- ready undergone custody for one month and twenty-three days, and taking into account the overall facts and circumstances of the case, the sentence of imprisonment is reduced to the period already undergone. The 4ne amount of Rs. 5,000/-, as imposed by the trial Court, is main- tained. 21.The criminal appeal is partly allowed to the extent indicated herein- above. 22. Let a copy of this order and the original records be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- (Arvind Kumar Verma) JUDGE Jyoti