Nafr High Court
Case Details
1 2025:CGHC:15558 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 69 of 2024 Mugri Lal Alias Arun S/o Gangaram Aged About 22 Years Cast- Malhar, R/o Village- Karji, Behind High School, Police Station- Patna,, District : Koriya (Baikunthpur), Chhattisgarh versus ... Appellant State Of Chhattisgarh Through - Station House Officer, Police Station- Patna,, District : Koriya (Baikunthpur), Chhattisgarh (Cause title taken from Case Information System) ... Respondent For Appellant For Respondents : : Mr. Tarun Dansena, Advocate Ms. Laxmeen Kashyap, Penal Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal 02/04/2025 Judgment on Board 1. Present is a Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 filed by the appellant against the impugned judgement of conviction and sentence dated 26.07.2023, passed by learned Additional Sessions Judge (Fast Track Court) and Special Judge under Protection of Children from Sexual Offences Act, 2012, Baikunthpur, District Korea, Chhattisgarh, in Special Criminal Case VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.04.11 11:43:10 +0530 2 No. 1 of 2022, whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s. 354 of IPC Sentence is given only under the POCSO Act as per Section 42 of the Act. U/s. 10 of Protection of Children from Sexual Offences Act, 2012 R.I. for 05 years and fine of Rs. 500/-, in default of payment of fine further R.I. for 01 month. 2.
Legal Reasoning
Brief facts of the case are that on 15.11.2021, the victim had gone to Anganbadi Centre, Karji for her studies. At about 2:00 PM, the victim, her friend and her cousin sister were taken to her house, she was crying and when the reason for her cry asked from her, she disclosed that at the time of tiffin leisure, the appellant came there, kissed her and tried to remove her underwear. When she protested, he threatened her and when she shouted, he fled away. The mother of the victim informed the incident to her husband and then a written complaint (exhibit P-1) was lodged to the police. Based on her written complaint, the FIR (exhibit P-2) was registered against the appellant for the offence under Sections 354, 354-A and 506 of IPC and Section 8 of Protection of Children from Sexual Offices Act, 2012 (in short ‘POCSO Act’). The victim was sent for her medical examination to Community Health Centre, Patna, where she was medically examined by Dr. Ajay Kumar Sahu and no external injuries have been found on the body of the victim. The victim was referred for her ossification test and she was radiologically examined at District Hospital, Ambikapur, where PW-14/Dr. Suyash Tiwari has examined 3 her and gave his report (exhibit P-17). According to the ossification report of the victim, she was found in between 10-14 years of age. 3. Spot map (exhibit P-3) was prepared by the police and exhibit P-16 was prepared by the Patwari. With respect to the age of the victim, the police has seized the birth certificate (exhibit P-5) vide seizure memo (exhibit P-6). The appellant was arrested on 16.11.2021. Statement of the witnesses under Section 161 of CRPC and statement of the victim under Section 164 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed before the learned trial Court for the offence under Sections 354, 354-A and 506 of IPC and Section 8 of POCSO Act. 4. 5. 6. The learned trial Court has framed charge against the appellant for the offence under Sections 354, 354-A, 354-B, 506 Part-II of IPC and Section 9(m)/10 of POCSO Act. The appellant denied the charge and claimed trial. In order to prove the charge against the appellant, the prosecution has examined as many as 14 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, pleaded innocence and has submitted that he has been falsely implicated in the offence. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of the judgement, hence this appeal. 4 7.
Legal Reasoning
Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses and their evidence cannot be made basis to convict the appellant in the offence in question. There is no legally admissible evidence with respect to the age of the victim that she was less than 12 years of age at the time of incident. The birth certificate was got prepared after registration of the FIR against the appellant and the same has not been proved by leading cogent and clinching evidence. He would also submit that as per the ossification test report, the age of the victim comes to 10-14 years and by considering her upper line of age, she is more than 12 years and therefore, no offence of aggravated sexual intercourse is made out against the appellant and he is entitled for acquittal from the offence under Section 10 of POCSO Act. He would also submit that the victim is a tutored witness and without any corroboration, her evidence is not sufficient to hold guilty of the appellant. In alternative, he would submit that the offence of the appellant, if any, falls under Section 8 of the POCSO Act, for which the minimum sentence of 03 years imprisonment is provided and the sentence imposed upon the appellant may be reduced to that extent after altering his conviction from Section 10 to Section 8 of the POCSO Act. 8. On the other hand, learned counsel appearing for the State opposes the submissions made by learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions, the 5 evidence of the victim and other witnesses are fully reliable and conviction of the appellant can safely be made from their evidence. Despite being a child witness, the victim has supported her entire case and there is no doubt that she was subjected to outrage her modesty by the appellant. The minor victim was subjected to alleged offence and therefore the appellant is not entitled for any leniency and the learned trial Court has rightly convicted and sentenced him. 9. I have heard learned counsel for the parties and perused the record of the case. 10. Although the victim was admittedly minor and less than 18 years of age, yet her age is relevant to be determined, because the complexion of the offence is changed, if she is found below 12 years of age or if she is found more than 12 years of age. The prosecution has relied the birth certificate of the victim (exhibit P-5) and the ossification test report (exhibit P-17), which is proved by PW-14/Dr. Suyash Tiwari. 11. The police has seized the birth certificate (exhibit P-5) of the victim vide seizure memo (exhibit P-6) an the same has been seized from the mother of the victim and from seizure memo (exhibit P-6) it reflects that the mother of the victim has given it to the police. From perusal of the said birth certificate, it transpires that the birth of the victim has got registered on 22.12.2021, through registration No. B2021, 22-00216-000005 and the same was issued on 22.12.2021. In the said birth certificate, the date of birth of the victim is mentioned as 01.01.2011. The said birth certificate is registered after about 10 6 years and 11 months of her birth that to after registration of the FIR and arrest of the appellant in the offence. Though the birth certificate is issued by the Registrar, Birth and Deaths, but on what basis the date of birth of the victim has been recorded in the birth register kept for the purpose, has not been proved by the prosecution. It is not a case where the birth of the victim has been registered immediately after her birth or within the stipulated time fixed for the same. The said birth certificate is also not seized from the office of the Registrar, Birth and Deaths, but the same has been seized from the mother of the victim. 12. The Investigating Officer has not got verified the authenticity of the said birth certificate and further he has not issued any notice to the issuing authority for production of its original document with respect to the birth certificate of the victim and did not examine the authority issuing the certificate of birth of the victim nor conducted any investigation relating to the birth place of the victim. While examining the birth certificate in terms of legal parameters under Section 35 of the Indian Evidence Act, 1872, it must be established by the prosecution by necessary evidence. It was essential to show that the document was prepared by the public servant in discharge of his official duty. The birth certificate may be admissible under Section 35 of the Indian Evidence Act, 1872, but the Court is not barred from taking evidence to test the authenticity of the entries made therein. The admissibility of a document and proof of its contents are altogether different aspects. 7 13. True it is the birth certificate is a public document and it has been prepared in discharge of his official duty of the authority, but when correctness of the entry made in the birth certificate is disputed by the other party, the same has to be enquired and to be proved by producing the basis on which the entries have been made in the birth certificate or it can be proved by producing original register from which it has been abstracted as a copy of the original record. While considering Section 74 of the Indian Evidence Act, 1872, this Court has considered that the document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. Even if the entry was made in an official record by the official concerned, in discharge of his duty, it may have weight, but still may require corroboration by the person, on whose information the entry has been made. 14. There is a procedure prescribed for registration of the birth of a child in the birth register maintained by the Registrar, Birth and Deaths. After the stipulated period, the birth of a child can be registered on the basis of the affidavit submitted by the person concerned, but in the present case, neither said affidavit has been filed nor any explanation was given for delayed registration of birth of the victim. The said birth certificate (exhibit P-5) was issued by PW-9, who is the Panchayat Secretary of Gram Panchayat, Karji. He stated in his evidence that, he issued the said birth certificate (exhibit P-5). In cross-examination, he was not able to tell as to on whether the said certificate was directly issued by him or issued under the order of 8 Executive Magistrate. He admitted that after 03 months of the birth of the child, the birth certificate is to be issued by the order of the Executive Magistrate. He admitted that in the present case the birth of the victim has not been registered within 03 months of her birth. He could not tell as to on what basis the said birth certificate was issued. Even the said birth of the victim was registered after the ossification report of the victim, which comes on 16.12.2021. Therefore, in absence of any cogent evidence regarding entries made in the said birth certificate cannot be relied upon in the facts and circumstances of the case to determine the age of the victim. 15. The another piece of evidence is the ossification test report (exhibit P-17) which is proved by PW-14/Dr. Suyash Tiwari. He stated in his evidence that on 16.12.2021, he radiologically examined the victim and found her radiological age was 10-14 years and he proved his report (exhibit P-17). In cross-examination, he stated that there may be error of margin of 02 years in either side. While taking the age of the victim on upper side, she can be considered without the aid of error of margin of 02 years, 14 years of age as has been opined by the doctor (PW-14). The learned trial Court has considered the age of the victim is 10 years and 10 months on the basis of the birth certificate, but the manner in which the birth certificate is placed on record by the prosecution, makes its suspicious, particularly in view of the ossification test report and registration of birth after registration of the FIR, arrest of the appellant and after the ossification report. 9 From the evidence, the prosecution is not able to prove that the victim was less than 12 years of age on the date of incident, yet the learned trial Court has held her below the age of 12 years, which in the opinion of this Court, is erroneous. 16. So far as the involvement of the appellant in the offence in question, this Court examined the evidence of the witnesses. 17. PW-2 is the victim. She stated in her evidence that on the date of incident, her friends were playing in the ground and she was inside the Anganbadi. At that time, the appellant came there and kissed her and then she started crying and called her cousin sister. She has informed the incident to the teacher of the school and came back to her house with her cousin sister and informed the incident to her mother. In cross-examination, she stated that the witnesses have seen that the appellant came there. After commission of the offence, the appellant fled away from the place. Her teacher was not there in the school at that time and therefore, she could not inform any other person and she denied the suggestion given by the defence that the appellant has not committed any incident with her. She remained firm in her evidence and allegation against the appellant. Nothing could be extracted from the evidence of this witness, which makes her evidence doubtful. 18. PW-3 is the cousin sister of the victim, who was also there in the Anganbadi Centre. She stated in her evidence that on the date of incident the victim called her from her classroom and informed about the incident that the appellant has outraged her modesty. She has 10 taken leave and came to the house of the victim to left her. She disclosed the entire incident to her mother. After declaring hostile, she supported the prosecution’s case in detail. Though in cross- examination, she stated that she has not seen the incident, but she corroborated the evidence of the victim that on the date of incident her friend left her to house and she informed the incident to her mother. 19. PW-4 is another student of Anganbadi and she too has supported that on the date of incident, the victim came to her by crying and informed the incident that the appellant has outraged her modesty, kissed her and tried to remove her undergarment. They informed the incident to teacher and left her in her house. She too has remained firm in alleging against the appellant and information given by the victim to her. 20. PW-1 is the mother of the victim, who stated in her evidence that on the date of incident, at about 2:00 PM, her daughter came back to the house and informed the incident that the appellant kissed her and tried to remove her undergarment and when she shouted, he threatened her, thereafter, she alongwith her brother-in-law had gone to Police Station for lodging of the report. 21. PW-5 is the mother of the friend of the victim, she has also stated that on the date of incident, her daughter has informed about the incident that the appellant outraged the modesty of the victim. She accompanied the mother of the victim for lodging of the report. In 11 cross-examination, she remained firm in saying that the incident was informed by her daughter, the victim and her mother. 22. PW-8 is the grandfather of the victim, who stated in his evidence that on the date of incident, the victim came from Anganbadi School by crying and when he asked, she replied that the appellant has assaulted her. The appellant had outraged the modesty of his granddaughter, the mother of the victim has lodged the report. 23. The appellant has been convicted under Section 9(m)/10 of the POCSO Act. Sections 9(m) and 10 of the POCSO Act is relevant to be reproduced herein below:- “9. Aggravated sexual assault.— (m) whoever commits sexual assault on a child below twelve years; 10. Punishment for aggravated sexual assault.— Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.” 24. Section 9(m) of the POCSO Act provides that whoever commits sexual assault on a child below 12 years, he is said to commit aggravated sexual assault and the punishment was provided under Section 10 of the POCSO Act. In the present case, the victim is found to be more than 12 years of age, and therefore, the act of the appellant is not come under Section 9 of the POCSO Act, however, 12 the alleged act against the appellant comes under the definition of sexual assault, which is defined under Section 7 of the POCSO Act punishable under Section 8 of the POCSO Act. It is also relevant to note here Sections 7 and 8 of the POCSO Act, which are as under:- “7. Sexual assault.—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, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. 8. Punishment for sexual assault.—Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.” 25. The allegation against the appellant is that he kissed the minor victim and tried to remove her undergarment, when she was in the Anganbadi School, which comes under the definition “does any other act with sexual intent, which involves physical contact without penetration is said to commit sexual assault”, which is punishable under Section 8 of the POCSO Act, in which the minimum sentence of 03 years imprisonment is provided. 26. In the present case, the appellant is presently appears to be aged about 25 years. Considering the nature of allegation and the manner of alleged offence, the sentence awarded to the appellant appears to be harsh. 13 27. In the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh, (1977) 3 SCC 287, Hon'ble Supreme Court has observed that if you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in Para 9 as follows:- "9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel Romilly, critical of the brutal penalties in the then Britain, said in 1817: "The laws of England are written in blood". Alfieri has suggested: 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If it is thus plain that crime is a pathological aberration. that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. since brutal incarceration of the person 14 merely produces laceration of his mind. In the words of George Bernard Shaw: 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield: "If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences." 28. In the peculiar facts and circumstances of the present case, the relevant provisions of the POCSO Act and the Indian Penal Code and also in view of the aforesaid judgement of the Hon'ble Supreme Court of Mohammad Giasuddin (supra), this Court deem fit to alter the conviction of the appellant from the offence of Section 10 of POCSO Act to Section 8 of the POCSO Act and sentenced for R.I. for 03 years instead of R.I. for 05 years. 29. For the foregoing reasons, the conviction of the appellant for the offence under Section 10 of the POCSO Act is set aside instead thereof he has been convicted for the offence under Section 8 of the POCSO Act and sentenced for R.I. for 03 years. The fine sentence awarded to the appellant is maintained. The conviction of the appellant for the offence under Section 354 of the IPC is also maintained. Since no separate sentence has been awarded to the appellant for the offence under Section 354 of the IPC, it would not be relevant to further discuss its sentence. 15 30. With the aforesaid modification/alteration of conviction and sentence, the appeal filed by the appellant is partly allowed. The appellant has undergone 04 months and 26 days during the trial and presently, he is in jail since 24.07.2023. He is entitled for set-off of his undergone period. 31. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment 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. 32. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. ved Sd/- (Ravindra Kumar Agrawal) Judge