Indira Nagar, Baghera, P.S. Durg, District Durg (CG) v. State of Chhattisgarh, Through Police Station Durg, District Durg
Case Details
Page 1 of 7 (Cr.A.No.1911/2022) SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.04.07 16:59:34 +0530 2025:CGHC:16017 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1911 of 2022 {Arising out of judgment dated 23-11-2022 in Special Sessions Trial (POCSO) No.68/2021 of the Additional Sessions Judge, First Fast Track Court, Special Judge (POCSO Act), Durg} Gaukaran Sahu, S/o Inder Sahu, Aged about 27 years, R/o Kutulbod, Bhatagaon, Basantpur, District Rajnandgaon (CG), Presently R/o Ward No.56, Indira Nagar, Baghera, P.S. Durg, District Durg (CG) ... Appellant versus State of Chhattisgarh, Through Police Station Durg, District Durg (CG) ... Respondent For Appellant For Respondent/State : Dr. Surendra Kumar Dewangan, Panel Lawyer. Amicus Curiae
Legal Reasoning
: Mr. Rishi Rahul Soni & Mr. Sharad Mishra, Advocates. : Mr. Shishir Dixit, Advocate. Single Bench: - Hon’ble Shri Justice Sanjay K. Agrawal Judgment on Board 04/04/2025 1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 23-11-2022 passed by the Additional Page 2 of 7 (Cr.A.No.1911/2022) Sessions Judge, First Fast Track Court, Special Judge (POCSO Act), Durg, in Special Sessions Trial (POCSO) No.68/2021, by which the sole appellant has been convicted under Sections 354 of the IPC & 10 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act’) (for offence under Section 9(l) of the POCSO Act) and sentenced to undergo rigorous imprisonment for two years & pay fine of ₹ 1,000/-, in default, additional simple imprisonment for one month, and rigorous imprisonment for five years & pay fine of ₹ 2,000/-, in default, additional simple imprisonment for two months, respectively, with a direction that both the sentences shall run concurrently. 2. Case of the prosecution, in short, is that on 19-10-2020, at 2 p.m., at Indira Nagar, Ward No.56, Baghera, Durg, the appellant, who resides in the house of the victim / her parents as tenant, outraged the modesty of the victim (PW-2), aged about 13 years, and also told her not to disclose to anybody and thereby committed the offence pursuant to which offence punishable under Section 376 of the IPC and Sections 4 & 6 of the POCSO Act was registered at the instance of the victim’s mother (PW-1) vide FIR Ex.P-2. The victim (PW-2) was Page 3 of 7 (Cr.A.No.1911/2022) subjected to medical examination by Dr. Anita Shrivastava (PW-6) vide MLC report Ex.P-15A in which it has been mentioned that hymen was found intact and there was no evidence of forcible intercourse. 3. Statements of witnesses were recorded under Section 161 of the CrPC. Thereafter, after usual investigation, the appellant was charge-sheeted before the jurisdictional criminal court for offences punishable under Sections 354, 376(3) of the IPC and Section 4 of the POCSO Act and the case was committed to the Court of Sessions from where the learned Special Judge (POCSO Act) received the case on transfer for trial and for hearing and disposal in accordance with law. 4. In order to bring home the offence, the prosecution has examined as many as 10 witnesses and brought on record 30 documents Exs.P-1 to P-30. The accused / appellant abjured the guilt and entered into defence by stating that he has not committed the offence and he has been falsely implicated. He has examined one witness Radha Sahu (DW-1) and exhibited four documents Exs.D-1 to D-4 – statements of the victim (PW-2), her mother (PW-1) recorded under Sections 161 & 164 of the CrPC as also the statement of the father of the Page 4 of 7 (Cr.A.No.1911/2022) victim (PW-3) recorded under Section 161 of the CrPC, in support of his defence. 5. The trial Court after appreciating oral and documentary evidence, convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment against which this appeal has been preferred. 6. Mr. Shishir Dixit, learned counsel appearing for the appellant, would submit that the appellant was never charged under Section 9 of the POCSO Act, yet he has been convicted under Section 9(l) of the POCSO Act, while acquitting him of the charge under Section 376 of the IPC which is unsustainable and bad in law. 7. On the other hand, Dr. Surendra Kumar Dewangan, learned Panel Lawyer appearing for the State / respondent, would oppose the instant criminal appeal and support the impugned judgment. 8. Case of the prosecution is solely based on the statement of the victim (PW-2), as there is no forensic and medical evidence. The victim (PW-2) has clearly stated in her statement before the Court that on the date of offence, the appellant came to her house and pressed her chest and thereby outraged her Page 5 of 7 (Cr.A.No.1911/2022) modesty. She has been subjected to some length of cross- examination, but nothing has been extracted to hold that the appellant has not outraged her modesty. In that view of the matter, the trial Court has rightly convicted the appellant under Section 354 of the IPC and sentenced him accordingly. 9. At this stage, Mr. Dixit, learned counsel for the appellant, has contended that charge under Section 376(3) of the IPC has also been framed against the appellant, however, he has been acquitted of the said charge and thereafter, the trial Court has proceeded to convict him under Section 9(l) read with Section 10 of the POCSO Act, whereas no charge has been framed against the appellant under Section 9(l) read with Section 10 of the POCSO Act. He would further contend that once charge has not been framed, the appellant could not be convicted under Section 9(l) read with Section 10 of the POCSO Act. 10.In this regard, decision of the Supreme Court in the matter of Attorney General for India v. Satish and another1 deserves to be noticed herein profitably in which their Lordships of the Supreme Court have pertinently observed that whoever does any other act with sexual intent which involves physical 1 (2022) 5 SCC 545 Page 6 of 7 (Cr.A.No.1911/2022) contact without penetration, would also be committing the offence of “sexual assault” under Section 7 of the POCSO Act”. It has been held by their Lordships as under: - “45. The interpretation of Section 7 at the instance of the High Court on the premise of the principle of “ejusdem generis” is also thoroughly misconceived. It may be noted that the principle of “ejusdem generis” should be applied only as an aid to the construction of the statute. It should not be applied where it would defeat the very legislative intent. As per the settled legal position, if the specific words used in the section exhaust a class, it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words. So far as Section 7 of the POCSO Act is concerned, the first part thereof exhausts a class of act of sexual assault using specific words, and the other part uses the general act beyond the class denoted by the specific words. In other words, 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 person or any other person, would be committing an offence of “sexual assault”. Similarly, whoever does any other act with sexual intent which involves physical contact without penetration, would also be committing the offence of “sexual assault” under Section 7 of the POCSO Act. In view of the discussion made earlier, the prosecution was not required to prove a “skin-to-skin” contact for the purpose of proving the charge of sexual assault under Section 7 of the Act.” 11.In that view of the matter, the appellant’s act, in the present case, would be covered under Section 7 of the POCSO Act, which is punishable under Section 8 of the POCSO Act, under which the minimum punishment provided is three years Page 7 of 7 (Cr.A.No.1911/2022) imprisonment and therefore, instead of Section 9(l) read with Section 10 of the POCSO Act, the appellant is hereby convicted under Section 8 of the POCSO Act and sentenced to undergo rigorous imprisonment for three years, however, his conviction under Section 354 of the IPC is maintained. 12.With the aforesaid modification and observation, the criminal appeal is partly allowed to the extent indicated herein-above. 13.Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence. Sd/- (Sanjay K. Agrawal) JUDGE Soma