Nafr High Court
Case Details
1 2025:CGHC:38548 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 164 of 2024 1 - Sunil Sarthi S/o Shri Mohan Ram Sarthi, Aged About 40 Years R/o Behind Maya Lodge, Joda Peepal, Ambikapur, District Surguja Chhattisgarh. versus ... Appellant 1 - State Of Chhattisgarh Through Station In- Charge Police Station Ambikapur, District Surguja Chhattisgarh. ... Respondent For Appellant : Mr. K. Rohan, Advocate For Respondent
Legal Reasoning
: Mr. Karan Baharani, P.L. Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board 04/08/2025 1 The present appeal under Section 374(2) of Cr.P.C. has been filed challenging the judgment of conviction and order of sentence dated 22.12.2023 passed by learned Additional Sessions Judge/Fast Track Special Court (FTSC) (POCSO Act), Ambikapur, District-Surguja (C.G.), in Special Criminal Case (POCSO Act) No.119/2021 whereby the appellant has been convicted and sentenced as under : Conviction Sentence U/s 363 of IPC Rigorous imprisonment for 3 years Digitally signed by HEERA LAL SAHU Date: 2025.08.05 16:35:20 +0530 2 with fine of Rs.200/-, in default of payment of fine amount, additional S.I. for 15 days. Rigorous imprisonment for 3 years with fine of Rs.200/-, in default of payment of fine amount, additional S.I. for 15 days. Rigorous imprisonment for 3 years with fine of Rs.200/-, in default of payment of fine amount, additional S.I. for 15 days. Rigorous imprisonment for 5 years with fine of Rs.400/-, in default of payment of fine amount, additional S.I. for 1 month. U/s 354 of IPC U/s 354-B of IPC U/s 9(m)/10 of the POCSO Act (All the sentences were directed to run concurrently). 2 The prosecution case, in brief, is that the mother of the prosecutrix (PW-2) lodged a complaint stating therein that on 15.10.2021 at about 8:30 am, she had gone to do household work, and her husband had gone to work at 9:30 am, and both her daughters were at home. Her 11 year’s old elder daughter/prosecutrix had gone to the nearby Joda pond to wash clothes and was returning home after washing clothes when the accused neighbour started following her daughter/prosecutrix. When her daughter went to open the door, the accused grabbed her from behind by pressing her mouth and lifted her and took her to a deserted place behind and started opening her lower clothes with wrong intentions. Her daughter/prosecutrix was screaming. In the meantime, Salu, who lived next door, came and tried to free her, and then the accused fled from there. When Salu informed about this, her husband and she came and, with the help of other people, caught the accused and brought him to the police station. Based on this, offence has been registered against the present applicant, and completion of investigation charge sheet was 3 filed. 3 So as to hold the appellant guilty, the prosecution has examined as many as 7 witnesses and exhibited 8 documents. The statement of the appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case. 4 The trial Court, taking into consideration the evidences which have come on record, vide impugned judgment dated 22.12.2023 convicted and sentenced the appellant as mentioned in paragraph-1 of this judgment leading to the filing of this appeal. 5 Learned counsel for the appellant submits that in this case, conviction under Section 9(m) read with Section 10 of the POCSO Act is not proper because the prosecution has failed to prove that the age of the victim (PW-1) was less than 12 years on the date of the incident i.e. 15.10.2021. Therefore, at best, the conviction of the appellant should be made out under Section 7, read with Section 8, instead of Section 9(m) read with Section 10 of the POCSO Act. He also submits that the appellant is in jail since 15.10.2021, meaning thereby the appellant has already served the jail sentence of more than 3 years and 9 months and is still serving the jail sentence; he has no criminal antecedents. Hence, considering all these facts, the sentence imposed upon the appellant may be reduced to the period already undergone by him. 6 Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the counsel for appellant and submits that the prosecution has proved its case adducing clinching evidence that the date of birth of the 4 victim was 17.12.2011 and thus on the date of incident i.e. 15.10.2021, she was about 09 years and 10 months i.e. less than 12 years of age. Therefore, the conviction of the appellant under Section 9(m) read with Section 10 of the POCSO Act is proper. 7 Heard learned counsel for the parties and perused the record. 8 The only question that needs consideration is whether the age of the victim was less than 12 years on the date of the incident i.e. 15.10.2021? 9 In this matter, the victim (PW-1), her mother (PW-2) and father (PW-4) examined by the prosecution, have clearly stated in their evidence that the victim's date of birth is 17.12.2011. But neither the mother nor the father has produced any birth certificate for the said date of birth. The investigating officer has seized and produced the only Dakhal Kharij register, Exhibit P-6, and to verify it, Ms. Geeta Tripathi (PW-3), a retired head master, has been examined. She has stated that the victim was admitted to KG-2 in the school on 26.04.2016, but has not given clear information about who came to enrol her. In cross- examination, Ms. Geeta Tripathi has admitted that the Dakhal Kharij register is not in her handwriting but in the handwriting of her assistant Shakuntala, and Shakuntala has not been examined. There is no handwriting of Ms. Geeta Tripathi, and no signature has been mentioned. There is no clear information on the basis on which the date of birth of the victim was 17.12.2011 recorded in the said register. Ms. Geeta Tripathi has certainly stated that the said entry was made on the basis of the birth certificate, but there is no clear information on which birth certificate was presented by whom the entry was made. The 5 father of the victim (PW-4) has stated that the mother of the victim had gone to get her admitted in school but the mother of the victim (PW-2) has not given any information about the admission and has also not given any information on the basis on which the date of birth was recorded at the time of admission. 10 The prosecution has to prove its case beyond a reasonable doubt, and it cannot take advantage of any weakness of the defence. In this case, it is not clear from the evidence presented on what basis the victim's date of birth, as 17.12.2011, has been recorded in the school admission and dismissal register. Therefore, the benefit of doubt goes to the appellant. On the basis of evidence analysis, this court finds that the prosecution has failed to prove that the victim's age was less than 12 years on the date of the incident i.e. 15.10.2021. In such a situation, the appellant's conviction is not found to be proved under Section 9 (m) read with Section 10 of the POCSO Act, but is found to be of sexual assault under Section 7 read with Section 8 of the POCSO Act. 11 On the basis of the above discussions, keeping in view the facts and circumstances of the case and the material available on record, the conviction and sentence of the appellant under Sections 363, 354 & 354(b) is affirmed and the conviction under Section 9(m) read with section 10 of the POCSO Act is converted/altered to Section 7 read with Section 8 of the POCSO Act 12 Keeping in view the fact that the appellant is in custody since the date of arrest i.e. 15.10.2021, about 03 years, 09 months and 19 days, no criminal antecedent of the appellant is recorded in the arrest memo, he works as a labour, this Court is of the opinion that the ends of justice 6 would serve if the appellant is sentenced to the period already undergone by him for the offence punishable under Section 7/8 of POCSO Act. 13 Accordingly, the conviction of the appellant under Section 9(m)/10 of the POCSO Act is altered to Section 7 read with Section 8 of the POCSO Act and awarded a jail sentence of the period he has already undergone i.e. about 3 years, 9 months and 19 days. However, the fine imposed upon the appellant by the Trial Court shall remain intact. 14 Consequently, the appeal is allowed in part to the extent indicated herein-above. 15 The appellant is reported to be in jail. He be released forthwith if not required in any other case. 16 Record of the trial Court along with a copy of this judgment be sent back forthwith for compliance and necessary action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence. Sd/- (Sanjay Kumar Jaiswal) JUDGE H.L. Sahu