Chattisgarh High Court
Govind Kashyap vs State Of Chhattisgarh on 21 January, 2025
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2025:CGHC:3756
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 660 of 2024
Govind Kashyap S/o Mahettar Kashyap Aged About 52 Years R/o Gudrukala,
Police Station-Hassaud, District- Sakti, Chhattisgarh.
... Appellant
versus
State Of Chhattisgarh Through The Station House Officer, Polie Station,
Hassaud, District- Sakti, Chhattisgarh.
... Respondent
For Appellant : Ms. Ritika Verma, Advocate.
For Respondent : Mr. Ajay Kumrani, Panel Lawyer.
Hon'ble Mr. Justice Naresh Kumar Chandravanshi
Judgment on Board
21/01/2025
1. This criminal appeal under Section 374 (2) of the Criminal Procedure Code, 1973 filed by the appellant-accused is directed against the judgment of conviction and order of sentence dated 7th March, 2024 passed by Special Judge (F.T.S.C.), Shakti, District Janjgir Chama (C.G.) in Special Criminal Case No. 47 of 2023, whereby the appellant has been convicted and sentenced in following manner :-
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S.No. Conviction Sentence
01. U/s. 10 of the Rigorous Imprisonment for five
Protection of years with fine of Rs.1,000/-, in
Children from default of payment of fine, to
Sexual further undergo additional R.I. for 6
Offences Act, months
2012
(henceforth,
"POCSO Act")
02. U/s. 354 of Rigorous Imprisonment for three
IPC years with fine of Rs.1,000/-, in
default of payment of fine, to
further undergo additional R.I. for 3
months.
03. U/s. 354 (B) of Rigorous Imprisonment for 3 years IPC with fine of Rs.1,000/-, in default of payment of fine, to further undergo additional R.I. for three months.
All the sentences have been directed to run concurrently.
2. Facts of the case, in nutshell, is that on 22.10.2023 when minor victim girl (aged about 11 years), who belongs to 'Scheduled Caste' community, along with other minor boys namely, Dilchand Banjare, Shiva & Naitik was catching fish in the overflowing water of the canal flowing at road side, then appellant came there, caught hold of her hands and arms, lifted her frock and pressed her chest with sexual intent. On being screamed made by the victim girl, appellant fled away from the spot. Victim girl immediately after the incident went to her house and narrated the entire incident to her grandmother (PW-1), thereafter, father of the victim girl (PW-17) made written complaint (Ex.P-19) to the Police Station Hasoud. Based on which, FIR (Ex.P-20) was lodged at Police Station Hasoud, District Shakti against the appellant for commission of offence under Sections 354, 354 (£) of the IPC and Section 8 of the POCSO Act. During course of investigation, police 3 recorded statement of witnesses under Section 161 of the Cr.P.C.. Statement of the victim girl under Section 164 of the Cr.P.C. was also got recorded by Judicial Magistrate First Class, Dabhra, District Janjgir-Champa (C.G.). Spot map was prepared. Caste certificate of the victim girl was also seized. Age related document i.e. Dakhil Kharij register (Ex.P-14) was seized.
3. After due investigation, charge-sheet was filed against the appellant / accused under Sections 354, 354 ([k) of the IPC, Section 10 of the POCSO Act and Section 3(2)(v) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 (henceforth, 'SC/ST Act') before the Special Judge, FTC (POCSO Act), Shakti, District Shakti.
4. Learned Special Judge (POCSO Act), Shakti, District Janjgir Champa framed charges against the appellant under Section 10 of the POCSO Act, Sections 354 & 354 ([k) of the IPC, and Section 3(2)(v-d) of the SC/ST Act, 1989 which were read over and explained to the appellant, who denied the same and claimed trial.
5. So as to hold the accused/appellant guilty, prosecution has examined as many as 18 witnesses and exhibited 24 documents in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the circumstances appearing against him in prosecution evidence and pleaded his innocence and false implication in the case. Apart from this, two witnesses namely Mittulal Chouhan (DW-1) & Bharatlal (DW-2) have also been examined by the appellant in his defence.
6. The trial Court, after appreciating the evidence and material placed on record, has acquitted the appellant of the offence under Section 3(2)(v-d) of the SC/ST Act by extending him benefit of doubt but convicted the appellant 4 under Section 10 of the POCSO Act and Sections 354 & 354 (£) of the IPC and sentenced him, as has been mentioned in opening paragraph of the judgment. Being aggrieved and dissatisfied with the impugnedjudgment, instant criminal appeal has been preferred by the appellant questioning the same.
7. Learned counsel appearing for the appellant / accused submits that victim girl is said to be minor, aged about 11 years, at the time of incident, but the same has not been proved conclusively, as the same has been proved only on the basis of School Record i.e. Dakhil kharij register of the victim. She would further submit that such Dakhil Kharij register (Ex. P-17c) is not conclusive proof of the date of birth of victim, therefore, it cannot be held that victim was minor, below the age of 12 years, at the time of incident. She would further submit that overt act of alleged sexual assault has been held proved by the trial Court only on the basis of deposition of minor victim, which has not been corroborated by her own cousin brother (PW-3), who were allegedly present on the spot. No other independent witness has been examined in support of deposition of victim. She further submits that victim's grandmother (PW-1) used to sell illicit liquor, which was objected by appellant/accused being a Sarpanch of that village, therefore, family of victim girl has enmity with the appellant/accused and to encash the same, the appellant has been falsely implicated in the instant case, as such, he is entitled for acquittal of the alleged charges.
8. On the other hand, learned counsel appearing for the State submits that victim girl is aged about 12 years at the time of incident. The appellant has neither produced any document to prove the fact that grandmother of the victim used to sell illicit liquor nor this fact has been supported by both the 5 defence witnesses in their deposition, therefore, contention raised by the learned counsel for the appellant in this regard is unsustainable. He further submits that though the appellant has examined two witnesses in support of his defence, but as per their own statement, they were not present on the spot at the time of incident. It is further contended that impugned judgment is based on well appreciation of the evidence and law, hence, the appeal is liable to be dismissed.
9. I have heard learned counsel appearing for the parties and perused the record of trial Court with utmost circumspection.
10. As per case of the prosecution, date of birth of victim girl was 07.06.2013 and date of incident was 19.10.2023, as such, on the date of incident, age of the victim girl is 10 years, 4 months and 12 days. Aforesaid date of birth of victim girl has also been stated in Dakhil Kharij register (Ex.P-17c), which has been proved by Reshamlal Kashyap (PW-9), Headmaster of Govt. Primary School, Gudrukala, Tahsil Jaijaipur, District Shakti.
11. Grandmother of the victim (PW-1)has deposed in her court statement that at the time of incident, age of the victim was 10 years & 6 months. Father of victim girl (PW-17) has deposed that at the time of incident, the victim was studying in class Vth, though he has not stated about the date of birth of the victim. Even, he has not stated on which basis, the date of birth i.e. 07.06.2013 was recorded in the school record and by whom it was recorded in the Dakhil Kharij registered. Though, it is settled proposition of law that date of birth mentioned in Dakhil kharij registered is not the conclusive proof in this regard. But, on the basis of statements of PW-1 - Grandmother of victim, Dr. Damini Chandra (PW-4), who medically examined the victim girl 6 and assessed her age 10 years and 4 months, deposition of victim girl herself (PW-2), further the trial Court has also noted her apparent age 11 year, even, in respect of ossification test report also, margin of three years is possible, therefore, having considered the aforesaid facts, it is found that on the date of incident, victim was minor i.e. below the age of 18 year. But since there is no conclusive proof to hold that she was below 12 years of age, therefore, in view of above discussion, it is found that though the victim was minor on the date of incident, but it has not been proved by the prosecution beyond reasonable doubt that she was below the age of 12 years on the date of incident, therefore, finding recorded by the trial Court that age of the victim was below 12 year on the date of incident is set aside, but it was upheld to the extent that she was minor at that time.
12. So far offence of aggravated sexual assault is concerned, victim (PW-2) has deposed in her court statement that when she along with other minor boys namely, Dilchand Banjare, Shiva & Naitik were fishing in the village at 8 O' clock, at that time, appellant came there and started lifting her frock and also touched below her solder. She has further deposed that appellant was trying to lay her on the floor and when she shouted, then appellant ran away. She has further stated that she immediately went to her house and narrated entire incident to her grandmother, in turn, who told her father and other persons about the incident. This fact has also been supported by her grandmother (PW-1).
13. PW-3 is cousin brother of victim girl, who was allegedly present at the spot. But as per his deposition, while catching fish, he along with his friends have gone towards the filed and her sister (victim) remained at road, where they have put NET (to catch fish). Although, this witness has also stated that 7 appellant had molested his sister, but he has clearly admitted that he has not seen the incident. Though, on 22.10.2023 Dr. Damini Chandra (PW-4) has medically examined the victim girl, but she did not found any injury on her body, which also gets support from medical report (Ex.P-4) prepared by her. Thus, medical evidence is not supportive to the deposition of victim. But since it is not a case of prosecution itself that victim has sustained injuries, therefore, such medical report no adversely affected the case of prosecution.
14. Victim girl (PW-2) has admitted in her cross-examination that statue of deity Durga was kept at the place where puja was going on, but she has specifically stated that Goddess Durga was kept / seated inside the house and was not the outside. She has further admitted that one or two persons were standing there and they had consumed the liquor. She had denied the suggestion that her grandmother had used to sell illicit liquor and, therefore, there was dispute between her and the appellant. Nothing has been brought in cross-examination of victim / prosecutrix to discard the fact with regard to sexual assault made by appellant upon her.
15. Though grandmother of victim (PW-1) has admitted in her cross- examination that villagers have left her, her son and their family, but this witness has not been suggested that she used to sell illicit liquor and the same was objected by the appellant. Though, this witness is hearsay witness, but minor victim immediately after the incident reached to the house and narrated the entire incident to her, which is normal conduct of the victim girl. Even, this witness has stated in her deposition that she had abused the appellant and on next day, she went to house of appellant and asked about the incident, then earlier he denied and subsequently, he fell on her feet and 8 seeking apology for the said act. Nothing has been brought in cross- examination of this witness also to discard her deposition.
16. Other witness examined by the prosecution are formal witnesses, not related to the substantive facts.
17. It is settled proposition of law that if deposition of victim girl is unblemished and inspire confidence of the court, then conviction can be based on it. In the instant case, nothing has been elicited in cross- examination of victim (PW-2) or her grandmother (PW-1) to disbelieve the statement of victim with regard to sexual assault made by appellant upon her, therefore, I do not find any illegality or infirmity in the finding recorded by the trial Court that the appellant has sexually assaulted the victim girl.
18. Defence witnesses have stated that appellant is a good person and he has not sexually assaulted victim girl. They have not stated anything about the fact at the time of incident, as they were not present there, hence, their statements have no worth in the defence of the appellant.
19. The appellant has been convicted under Section 10 of the POCSO Act for the offence of "aggravated sexual assault / molestation" of minor victim girl, but as has been stated in preceding paragraph that that prosecution has failed to prove the fact that age of the victim girl was below 12 years at the time of incident.
20. The act of sexual assault perpetrated on the minor victim by the Appellant is that he lifted the frock of the victim girl and touched her below the shoulder and tried to make her lay down on the ground. This act of appellant does not fall under the offence of aggravated sexual assault, particularly when the prosecutrix has failed to prove the fact that at the time of incident, 9 victim was below the age of 12 years and other ingredients of Section 9 of the POCSO Act has also not been proved. Therefore, conviction of appellant for the offence of aggravated sexual assault is not found to be as per the law and evidence available on record, as such, on the basis of aforesaid proven fact that the appellant / accused had sexually assaulted the victim girl by lifting her frock, touched her below her shoulder / chest and tried to lay her down with sexual intent, therefore, offence of sexual assault with sexual intent is very much proved against the appellant. Hence, instead of offence under Section 10 of the POCSO Act, he is convicted under Section 7 read with Section 8 of the POCSO Act.
21. Accordingly, criminal appeal is partly allowed. Conviction and sentence awarded by the trial Court under Section 10 of the POCSO Act to the appellant is set aside, instead, the appellant is convicted under Section 7 read with Section 8 of the POCSO Act, further conviction of appellant under Section 354 & 354 (£) of the IPC imposed by the trial is also upheld, but considering the provisions contained in Section 42 of the POCSO Act and further that the victim was minor on the date of incident, the appellant is sentenced for the offence under Section 7 read with Section 8 of the POCSO Act to undergo rigorous imprisonment for three years with fine of Rs.3,000/-, in default of payment of fine, to further undergo additional rigorous imprisonment for three months. The other direction of the impugned judgment of the trial Court shall remain intact.
22. Let a copy of this judgment and original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.
Sd/-
(Naresh Kumar Chandravanshi)
Judge
Amit
Digitally signed by
AMIT AMIT KUMAR
KUMAR DUBEY
Date: 2025.01.29
DUBEY 10:34:45 +0530
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