Allahabad High Court
Aasif @ Pasha vs State Of Up And 3 Others on 17 October, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:194654 Reserved On : 25.08.2025 Delivered On : 17.10.2025 HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL No. - 8689 of 2024 Aasif @ Pasha ....Appellant(s) Versus State Of Up And 3 Others .....Respondent(s) Counsel for Appellant(s) : J.B. Singh Counsel for Respondent(s) : G.A. Court No. - 80 HON'BLE RAJEEV MISRA, J.
1. The present criminal appeal has been filed challenging the judgement and order dated 22.08.2024/23.08.2024 passed by Additional Sessions Judge/Special Judge (POCSO), Court No.2, Meerut in POCSO Case No.270 of 2016 (State of U.P. Vs. Asif @ Pasha) arising out of Case Crime No.13 of 2016 under Sections 354, 354B, 323, 504 IPC, Section 7/8 POCSO Act and Section 3(1)10 SC/ST Act, Police Station Falavda, District Meerut.
2. By means of the impugned judgment and order passed by court below, appellant-Asif @ Pasha has been convicted under Section 323 IPC and therefore sentenced to 6 months rigorous imprisonment, under Section 504 IPC and consequently sentenced to 1 year rigorous imprisonment, under Section 354 IPC and therefore sentenced to 1 year rigorous imprisonment along with fine of Rs. 3,000/- and in case of default, appellant is to undergo 2 months additional simple imprisonment, under Section 354-B IPC read with Section 7/8 POCSO Act and thus sentenced to 4 years rigorous imprisonment along with fine of Rs.4,000/- and in case of default, appellant is to undergo 3 months additional imprisonment and under Section 3(1)10 SC/ST Act and therefore sentenced to 4 years rigorous imprisonment along with fine of Rs.5,000/- and in case of default, appellant is to undergo 3 months additional imprisonment. The impugned judgment and order further records that all the sentences shall run concurrently.
3. Present appeal came up for admission on 05.09.2024. Notice was issued to first informant/opposite party-2 as the conviction and sentence awarded to appellant is also under the POCSO Act, therefore, no order could be passed by this Court exparte i.e. without hearing the first informant/opposite party-2. Office has submitted a report dated 21.10.2024 stating therein that notice issued to first informant/opposite party-2 has been served personally. However in spite of service of notice no one has put in appearance on behalf of first informant/opposite party-2 to oppose this appeal even in revised call. Thereafter vide order dated 24.02.2025, the appeal was admitted and trial court record was summoned. Office has submitted a report dated 27.03.2025 stating therein that trial court record has been received. Vide order dated 29.05.2025, notice was issued to opposite party-3, Child Welfare Committee, Meerut. Notice in respect of opposite party-4, High Court Legal Services Committee, High Court Allahabad was served in the Office of opposite party-4 before filing the present appeal. However, in spite of service of notice, no one has put in appearance on behalf of opposite party-4 to oppose this appeal even in revised call.
4. I have heard Mr. J.B. Singh, the learned counsel for appellant and Mr. Pankaj Srivastava, the learned A.G.A.-Ist along with Mr. Prashant Kumar, the learned AGA for State-opposite party-1 at length and in detail.
5. It transpires from record that an incident occurred on 16.01.2016 at 5.00 P.M. A written report (Tahrir) (Ext-Ka-1) regarding aforesaid incident was given on 16.01.2016 itself by the prosecutrix/victim/first informant (P.W.-1) and also proved by P.W.-1. On the basis of aforementioned written report, an entry was made in the General Diary of Police Station, Falavda, District-Meerut on 16.01.2016 which is Ext Ka-5 and proved by P.W.-4, S. I. Jai Prakash. Thereafter, the Check F.I.R. dated 16.01.2016 (Ext-Ka-3) was prepared by P.W.-4, S. I. Jai Prakash and proved by him.
6. The prosecution story as unfolded in the F.I.R. can be gathered from the F.I.R. itself. Accordingly, the same is extracted herein under:
"सेवा में श्रीमान थानाध्यक्ष फलावदा मेरठ महोदय निवेदन यह है कि दिनांक 16-01-2016 को समय करीब 5 बजे सायं में अपने घर से बाजार से घर का सामान लेने कई थी। जब पैठ बाजार में पहुंची तो मुझे पासा उर्फ आसिफ पुत्र मो0 युनूस, मौ0 कसाई वाली गलीण् क्सबा व थाना फलावदा मिला और मुझे देखकर अषलील व बद्दी-बद्दी बातें करने लगा। मैने उसका विरोध किया तो उसने मेरे कपड़े फाड दिये तथा मेरा गिरैबान पकड़कर मुझे थपड़ मारे तथा मेरे साथ नोच खसोट की। मौके पर मेरी छोटी बहन खुसी तथा मोहित तोमर पुत्र राजू सिंग निवासी मोहला पड़ाउ पट्टी कस्बा फलावदा तथा और बहुत से आदमी आ गये जिन्होंने मुझे बचाया तथा मुझे जाति सूचक शब्द व भद्दी-भद्दी गाली देता चला गया। मेरी उमर करीब 17 वर्ष है। ह0 अनुराधा प्रार्थनी अनुराधा पुत्री बिल्लू जाटव निवासी मोहला पड़ावपट्टी डा0 गोलिया की दुकान के पास, कस्बा व थाना फलावदा जिला-मेरठ दिनांक 16-01-2016 मोबाईल नं0- 9520440181 लेखक साह नजर पुत्र मो0 फारूख निवासी मोहल्ला फलावदा खारा कुंआ, थाना फलावदा"
7. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He first recorded the statement of prosecutrix under Section 161 Cr.P.C. The prosecutrix in her aforesaid statement has supported the F.I.R. and her statement is consistent with the prosecution story as unfolded in the F.I.R. He thereafter got the prosecutrix medically examined on 17.01.2016. As per the Medico Legal Examination Report, (Ext. Ka-2) of the prosecutrix/victim proved by P.W.-3, Dr. Umesh Sharma, following injuries were found on the body of prosecutrix:-
Multiple abraisons in area of 12 cm x 5 cm, largest 7 cm and small 5 cm in length on front of chest 5 cm below super isternal notch.
8. Thereafter, Investigating Officer visited the place of occurrence and prepared the Site Plan ( Ext. Ka-6) of the place of occurrence on the pointing of first informant/prosecutrix and same was proved by P.W.-5, Dhanpal Singh (Retired Deputy S. P.). On the basis of above and other material collected by him during course of investigation, Investigating Officer came to the conclusion that crime has been committed and complicity of named accused Arif @ Pasha in the crime in question is also prima-facie apparent. Accordingly, Investigating Officer submitted the charge sheet/police report dated 13.02.2016 in terms of Section 173 (2) Cr.P.C. (Ext. Ka-A-7) (proved by P.W.5, Dhanpal Singh (Retired Deputy S.P.), whereby accused/appellant herein was charge sheeted under Sections 354, 354B, 323, 504 I.P.C., Sections 7/8 of the POCSO Act and Section 3 (1) (10) SC/ST Act.
9. Subsequent to the submission of aforementioned charge sheet/police report in Court, cognizance was taken upon same by court concerned i.e Special Judge (POCSO Act), Meerut vide cognizance taking order dated 01.03.2016 in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. Resultantly, POCSO Case No. 02 of 2016 (State Vs. Arif @ Pasha) came to be registered in the Court of Additional Sessions Judge/Special Judge, POCSO Act, Court No.2, Meerut.
10. Concerned Sessions Judge/Special Judge, Court No.2, Meerut proceeded with the trial. Resultantly, he, in exercise of jurisdiction under Section 228 Cr.P.C. framed separate and distinct charges under Sections 354, 354B, 323, 504 I.P.C. and Section 7/8 of the POCSO Act against accused, vide Framing of Charge Order dated 23.01.2018.
11. Thereafter, vide order dated 18.01.2021, additional charge was framed against accused-appellant under Section 3 (1) (10) SC/ST Act.
12. Accused-appellant denied the charges so framed. He pleaded innocence and demanded trial. Resultanly, the trial procedure commenced.
13. Prosecution in discharge of it's burden to bring home the charges so framed adduced the following witnesses:-
(i). P.W.-1, First informant/victim. This witness in her deposition before Court below has clearly detailed the manner of occurrence. She has also specifically stated the derogatory words uttered by the accused and also how her character was assassinated by the accused. Apart from above, this witness has also stated how she was assaulted by the accused on account of which, she sustained injuries. In short, the prosecutrix/victim has fully supported the prosecution case. This witness was cross examined by the accused. However, she could not be dislodged.
(ii). P.W.-2, Mohit Tomar is an eye witness of the occurrence. This witness in his deposition before Court below has also proved the manner of occurrence. His presence at the time and place of occurrence has been established beyond doubt. This witness also could not be dislodged by the defence in his cross examination.
(iii). P.W.-3, Doctor Umesh Sharma has examined the victim and had prepared the injury report (Ext-Ka-2). He has proved the same. This witness has also stated about the time, the injuries found on the body of the victim were caused. The same stands corroborated by the deposition of PW-1 and PW-2.
(iv). P.W.-4, S. I. Jai Prakash
(v). P.W.-5, Dhanpal Singh (Retired Deputy Superintendent of Police)
(vi). P.W.-6, Satish Kumar (Teacher) Since no doubt has been raised by the learned counsel for appellant qua the documents prepared by the formal witnesses or proved by PW-6, therefore, their depositions need not be considered.
14. Apart from adducing aforementioned prosecution witnesses, prosecution also relied upon documentary evidence. The same is tabulated herein below:
(i). Ext-Ka-1, written report-proved by P.W.-1, Informant/Prosecutrix.
(ii). Ext-Ka-2, Medical Examination Report-proved by P.W.-3, Dr. Umesh Sharma.
(iii). Ext-Ka-3, Original F.I.R.-proved by P.W.-4, Sub-Inspector Jai Prakash.
(iv). Ext-Ka-4, Original G. D., weed out-proved by P.W.-4, Sub-Inspector Jai Prakash.
(v). Ext-Ka-5, Carbon copy of G.D.-proved by P.W.-4, Sub-Inspector Jai Prakash.
(vi). Ext-Ka-6, Site plan-proved by P.W.-5 Dhanpal Singh (Retired Deputy S. P.)
(vii). Ext-Ka-7, Charge sheet-proved by P.W.-5 Dhanpal Singh (Retired Deputy S. P.)
(viii). Ext-Ka-8, Authorization Certificate-proved by P.W.-6, Satish Kumar (Teacher)
(ix). Ext-Ka-9, Original S.R. Register, photocopy-proved by P.W.-6, Satish Kumar (Teacher)
(x). Ext-Ka-10, Photocopy of original application or admission-proved by P.W.-6, Satish Kumar (Teacher)
(xi). Ext-Ka-11, Transfer Certificate Photocopy-proved by P.W.-6, Satish Kumar (Teacher)
15. After the prosecution evidence was over, all the incriminating circumstances were disclosed to the accused in question-answer form for his statement under Section 313 Cr.P.C. Accused/appellant denied the same one after the other by submitting that the alleged occurrence is false, no criminality was committed by him, he has been falsely implicated, he has nothing to say, he is a poor labourer. He, however, did not come out with any other version of the occurrence. As such, only version of occurrence is prosecution version. The reply to question no. 7 is relevant wherein the accused has stated that he is a poor labour class person.
16. To prove his innocence, accused/appellant adduced two defence witnesses i.e. D.W.-1, Naim Anwar and D.W.-2 Atul.
17. Both D.W.-1 and D.W.-2 did not support the prosecution story. According to aforesaid defence witnesses, no occurrence as alleged had taken place. D.W.-1, Naim Anwar, was disbelieved by court below on the ground that he is not an eye witness of the occurrence in question, whereas D.W.-2, Atul, was disbelieved on the ground that since no documentary evidence has been adduced by this witness to establish that he is a street hawker/ cloth merchant, he is unworthy of belief and therefore his presence at the time and place of occurrence is doubtful.
18. On the aforesaid evidence and the varied contentions raised on behalf of prosecution and defence before court below, the concerned Sessions Judge came to the conclusion that following points of determination arise for determination in the trial:
(i). Whether the prosecutrix was a child on the date of occurrence?
(ii). Whether on 16.01.2016, the accused committed sexual assault upon the prosecutrix in the manner alleged?
(iii). In case the accused is held guilty then with what punishment he is liable to be punished.
19. All the points of determination framed by court below were answered against accused/appellant.
20. With regard to the first point of determination, court below in the penultimate part of paragraph 22 of the impugned judgement concluded that the date of birth of the prosecutrix/victim recorded in
(i). Ext-Ka-9-Photocopy of Original S. R. Register.
(ii). Ext-Ka-10-Photocopy of Original Admission Application.
(iii). Ext-Ka-11-Photocopy of the Original Transfer Certificate.
is 10.04.1998 whereas the occurrence giving rise to present criminal proceedings occurred on 16.01.2016. As such, the prosecutrix/victim was aged about 17 years, 9 months and 6 days on the date of occurrence, which is below 18 years, therefore, she was a child within the meaning of term child as defined in Section 2 (d) of the POCSO Act.
21. Point of determination 2 was dealt with by court below with reference to the oral evidence adduced on behalf of the prosecution as well as the defence and the medical evidence on record. Upon evaluation of the depositions of PW-1 (first informant/prosecutrix/victim), PW-2 (Mohit Tomar/Eye witness) and PW-3 ( Dr. Umesh Sharma) and the medical evidence on record, Court below came to the conclusion that accused-appellant is guilty of committing sexual assault upon the prosecutrix.
22. In view of the findings returned by court below on points of determination Nos. 1 and 2, it came to the conclusion that charges framed against accused-appellant stand proved. It accordingly convicted and sentenced the accused-appellant under the charging Sections (in the manner as already noted in 2nd paragraph of this judgement) vide judgement and order dated 22.08.2024/23.08.2024 passed by Special Judge (POCSO Act)/ Additional Sessions Judge, Court No.2, Meerut.
23. Thus feeling aggrieved by the above judgement and order dated 22.08.2024/23.08.2024, accused/appellant-Aaif @ Pasha has now approached this Court by means of present criminal appeal.
24. Mr. J. B. Singh, the learned counsel for appellant in challenge to the impugned judgement and order passed by court below made the following submissions:
(A). The finding returned by court below on the Ist point of determination i.e. the age of the prosecutrix is perverse and erroneous and therefore liable to be set-aside.
(B). Since the finding recorded by court below qua the age of prosecutrix on the date of occurrence is perverse and erroneous therefore the conviction and sentence awarded to appellant on the basis of same under Section 7/8 of the POCSO Act is also illegal and therefore, liable to be set aside.
(C). Court below vide order dated 18.01.2021 in exercise of jurisdiction under Section 216 Cr.P.C. framed additional charge against accused-appellant under Section 3 (1) (10) SC/ST Act.
(D). No documentary evidence was adduced by the prosecution to evidence the caste of the prosecutrix. The burden to prove the fact that prosecutrix belongs to SC/ST category was upon the prosecution itself which burden could not have been shifted upon the defence and the prosecution having failed to discharge the said burden by adducing any documentary evidence i.e. caste certificate, which was also required to be adduced, by reason of Section 91 of the Evidence Act as the said fact could be, conclusively proved only by a document i.e. caste certificate, the conviction and sentence awarded to accused-appellant under Section 3(1)(10) SC/ST Act is manifestly illegal being based on no evidence.
(E). The fact that the prosecutrix belongs to SC/ST category and yet the accused/appellant uttered caste denoting words is an incriminating circumstance, which was not disclosed to the accused-appellant at the stage of 313 Cr.P.C. As such, the conviction and sentence awarded to appellant under Section 3(1)(10) SC/ST Act is liable to be set aside.
(F). Section 354B I.P.C. is a species of an offence under Section 354 I.P.C. Moreover, an offence under Section 354-B IPC is a higher offence and therefore, it carries a higher degree of sentence. Therefore there was no occasion before court below to convict and sentence the accused-appellant both under Sections 354 and 354B I.P.C. simultaneously.
(G). No offence under Section 504 I.P.C. can be said to be made out against accused-appellant as per the depositions of prosecution witnesses of fact i.e. PW-1 and PW-2.
(H). Deposition of D.W.-1 has been wrongly discarded by court below on the ground that no documentary evidence was adduced by this witness to establish that he is a street hawker cloth merchant.
(I). Offence committed by accused-appellant is the first offence, therefore, accused/appellant is clearly entitled to the benefit of Probation as contemplated under the Probation of Offenders Act. The decision taken by Court below not to grant the benefit of same to accused/appellant is arbitrary and thus liable to be set aside.
(J). Sentence awarded to appellant by court below is harsh and excessive as the same does not commensurate with the gravity of offence complained of.
(K). The present appeal is prima-facie liable to be allowed and thus the impugned judgment and order is also liable to be set aside.
25. Per contra, the learned AGA representing State-opposite party-1 on the other hand would oppose the present appeal by contending that:
(i). No illegality can be attached to the conviction and sentence awarded to accused/appellant by court below under Section 323 I.P.C. as the medical evidence as well as the depositions of P.W.-1, the prosecutrix/victim, who is an injured eye witness and PW-2 Mohit Tomar, who is an eye witness clearly support the same.
(ii). The deposition of an injured eye witness, which in this case is P.W.-1 (the prosecutrix/first informant) has greater evidentiary value and cannot be discarded but for compelling reason. No compelling reason is discernible from the record so as to discard the deposition of P.W.-1, victim/injured eye witness. In support of aforesaid submission, he has referred to the judgement of Supreme Court in Manjeet Singh Vs. State of Haryana and others 2021 SCC OnLine SC 632, wherein the Apex Court has observed that the deposition of an injured eye witness has greater evidentiary value than the deposition of an ordinary witness and the same can be discarded only for compelling reasons.
(iii). The occurrence giving rise to present criminal proceedings stands fully proved by the depositions of PW-1, the prosecutrix, who is an injured eye witness and PW-2, Mohit Tomar, who is an eye witness of the occurrence. The injuries sustained by the injured PW-1 are evident from the Medico Legal Report of the injured prepared by the Doctor, PW-3 (Dr. Umesh Sharma), who has also proved the same. By reason of Section 114-E of the Evidence Act, there is a presumption regarding the correctness of the injury report (Ext-Ka-2) prepared by PW-3 Dr. Umesh Sharma. Learned A.G.A. has then referred to the judgment of Gujrat High Court in State of Gujarat Vs. Bharwad Jakshibhai Nagribhai and Others, (1989) SCC OnLine Guj 40, and has referred to paragraphs 31, wherein Court has laid down the principles in accordance with which, the deposition of an injured eye witness is to be considered. Aforesaid judgment of Gujrat High Court has been affirmed by Supreme Court in the case of Bharwad Jakshibhai Nagribhai and Others Vs. State of Gujarat, (1995) 5 SCC 602. Learned A.G.A. has then referred to Section 103 of the Evidence Act and with reference to same, he would submit that in case, the accused denies the occurrences/injuries sustained by the injured, then the burden shall shift upon the accused himself (reverse burden) to explain the fact as to how the injured came to sustain the injuries upon her person.
(iv). As per the deposition of P.W.-1, injured eye witness/prosecutrix and P.W.-2 Mohit Tomar, an eye witness, act and conduct of the accused clearly establishes the commission of an offence under Section 504 I.P.C.
(v). There is no legal bar for not convicting and sentencing an accused under Sections 354 and 354-B I.P.C. simultaneously.
(vi). Even if, the finding returned by court below qua the age of prosecutrix is not accepted by this Court yet the presumption arising out against an accused under Section 29 of the POCSO Act shall still remain against accused/appellant. Therefore, the burden is upon the accused i.e. appellant himself to establish that no occurrence as alleged took place. However, the defence has miserably failed to discharge the said burden.
(vii). D.W.-1 is not worthy of credit and reliance. His deposition is contrary to the reply submitted by accused i.e. appellant in answer to Question No. 7 put to him under Section 313 Cr.P.C. As such, no illegality has been committed by Court below in disbelieving DW-1.
(viii). In view of the nature and gravity of offence, which is also a heinous offence, as the modesty of the prosecutrix, who was a young and innocent girl, was dislodged, Court below has rightly refused to grant the benefit of Probation to accused/appellant under the Probation of Offenders Act.
(ix). Conviction and sentence as awarded to accused/appellant by Court below is fair and just. The same commensurate with the nature and degree of offence, as offence complained of is not private in nature but a crime against society as the victim/prosecutrix is a small and innocent girl, whose modesty was dislodged, therefore, no interference is warranted by this Court in present appeal.
(x). Even if there is irregularity in deciding the charge under Section 3 (1) (10) SC/ST Act, the same shall not render the impugned judgement illegal.
(xi). On the submissions urged by the learned counsel for appellant in support of the present appeal as well as the objection raised on behalf of the learned A.G.A. to this appeal as noted above, this Court finds that the following questions arise for determination in present appeal.
(A). Whether the finding returned by Court below regarding age of prosecutrix on the date of occurrence is a finding sustainable in law.
(B). If the finding returned by Court below qua the age of the prosecutrix on the date of occurrence is unsustainable in law, the conviction and sentence awarded to accused/appellant by Court below under Sections 7/8 of the POCSO Act can still be sustained or liable to be set aside.
(C). Whether in the absence of any documentary evidence, adduced on behalf of the prosecution to evidence the caste of the prosecutrix, the conviction and sentence awarded to accused/appellant under Section 3(1)(10) SC/ST Act is based upon no evidence, and therefore, liable to be set aside.
(D). Whether the conviction and sentence awarded to accused/appellant under Section 504 IPC can be sustained in law in the given set of facts and circumstances of the case.
(E). Whether the conviction and sentence awarded to accused/appellant under Section 323 IPC is legally sustainable.
(F). Whether the conviction and sentence awarded to appellant under Sections 354 and 354-B IPC simultaneously can be sustained in law as Section 354B IPC is a specie of Section 354 IPC and an offence under Section 354-B IPC is a higher offence.
(G). Whether Court below has erred in law in refusing to grant the benefit of probation under the Probation of Offenders Act to the accused/appellant.
(QUESTION NO. -A) -
26. The first question is taken first. It was contended by the learned counsel for appellant that Court below has concluded that since the prosecutrix was below 18 years of age on the date of occurrence, therefore, she is a child within the meaning of term child as defined in Section 2(d) of the POCSO Act. According to the learned counsel for accused/appellant, the said conclusion was drawn by Court below on the basis of three documents ie.. Ext-Ka-9. Attested copy of S.R. Register, Ext-Ka-10-Admission Form and Ext-Ka-11, Transfer Certificate of earlier school, wherein the date of birth of the prosecutrix is recorded as 10.04.1998. The same were proved by PW-6 Satish Kumar Upadhyay, teacher, Government Girls Middle School, Jauhanishpur, Delhi. It was, however, contended by the learned counsel for appellant that irrespective of above, the conclusion drawn by Court below is not only illegal but also perverse.
27. Elaborating his submission, the learned counsel for appellant submitted that Apex Court in the case of Jarnail Singh Vs. State of Haaryana, (2013) 7 SCC 263, has clearly held that age of prosecutrix/victim/child under the POCSO Act can be determined only in accordance with the provisions contained in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. Following was observed by the Bench in paragraph 23 of the report;-
23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion.
28. However, as the Juvenile Justice (Care and Protection of Children) Act, 2000 has now been repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the Act of 2015), therefore, by necessary implication, age of the prosecutrix/victim/child under the POCSO Act can be determined only in accordance with the provisions contained in Section 94 of the Act of 2015. The judgment rendered by the Apex Court in the case of Jarnail Singh Vs. State of Haaryana, (2013) 7 SCC 263 has been reiterated by the Apex Court in (1) Mahadeo Vs. State of Maharashtra and Another, (2013) 14 SCC 637 and (2) State of Madhya Pradesh Vs. Anoop Singh (2015) 7 SCC 773.
29. It was further submitted by the learned counsel for appellant that the provisions contained in Section 94 of the Act of 2015 operate in a preferential manner. Meaning thereby that the provisions contained in Section 94(2)(i) of the Act of 2015 shall have precedence over the provisions contained in Section 94(2)(ii) of the Act of 2015 and Section 94(2)(ii) shall have preference over the provisions contained in Section 94(2)(iii) of the Act of 2015.
30. As such, the Court is legally bound to decide age of the prosecutrix/victim/child under the POCSO Act first with reference to his/her date of birth recorded in any of the documents mentioned in Section 94(2)(i) of the Act of 2015. Only when, no document as mentioned in Section 94(2)(i) of the Act of 2015 is available, Court shall proceed to decide the age of the prosecutrix/victim/child with reference to his/her date of birth recorded in any document described in Section 94(2)(ii) of the Act of 2015. However, in case, no document as defined in Section 94(2)(ii) of the Act of 2015 is available then as a last resort, Court shall direct for medical determination of age. However, in no circumstance, Court can determine age of the prosecutrix/victim/child both ways i.e. with reference to his/her date of birth recorded in any of the documents recognized under Section 94 of the Act of 2015 and by medical determination of age.
31. At this juncture, the learned counsel for appellant referred to the judgment of Supreme Court in P. Yuvaprakash Vs. State Rep. by Inspector of Police, 2023 SCC Online SC 846, wherein Apex Court has considered the true import of the provisions contained in Section 94 of Act 2015. The legality of determination of age of the child with reference to date of birth recorded in documents beyond the scope of Section 94 of the Act of 2015 was also considered. Court, after considering the object of Act of 2015 and upon taking a holistic view, has observed, in paragraphs 11, 12, 13, 14 and 19 of the aforesaid report, as under:-
"11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act which reads as follows:
34. Procedure in case of commission of offence by child and determination of age by Special Court. (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).
(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.
12. In view of Section 34 (1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:
94. Presumption and determination of age. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.
14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through an ossification test or any other latest medical age determination test conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
19. It is clear from the above narrative that none of the documents produced during the trial answered the description of the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victims age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating that the age of the said girl would be more than 18 years and less than 20 years. In the cross-examination, she admitted that Ms age could be taken as 19 years. However, the High Court rejected this evidence, saying that when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor. This finding is, in this courts considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victims bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9."
32. On the above premise, the learned counsel for appellant thus contended that since the age of prosecutrix has been determined not with reference to her date of birth recorded in any document regonized under Section 94 of the Act of 2015 but with reference to her date of birth recorded in Ext-Ka-8, Ext-Ka-9 and Ext-Ka-10 as well as the depositions of PW-6 Satish Kumar (Teacher), who proved the said documents and PW-1 (the prosecutrix/victim), the same is manifestly illegal and perverse.
33. Per contra, the learned A.G.A. has tried to justify the conclusion drawn by Court below that the prosecutrix is a child within the meaning of the term child as defined in the POCSO Act. However, in all fairness, the learned A.G.A. fairly conceded.
34. It is thus apparent that court below has determined the age of prosecutrix/victim/child on the basis of her date of birth recorded in the documents marked as Exts Ka-8, Ka-9 and Ka010, which are beyond the scope of Section 94 of the Act of 2015. As such, the determination made by Court below regarding the date of prosecutrix on the date of occurrence cannot be sustained in law being illegal and perverse.
(QUESTION NO. -B)-
35. It was then submitted by the learned counsel for appellant that since the conviction and sentence awarded to accused/appellant under Sections 7/8 of the POCSO Act is primarily based on the finding returned by Court below qua the age of prosecutrix, which finding is itself illegal and perverse, therefore, the conviction and sentence awarded to accused/appellant under Sections 7/8 of the POCSO Act on the basis of same is also unsustainable. It is by now well settled that if the basic order cannot be sustained, the consequential order shall fall automatically/logically being ineffective. Reference in this regard was made to the following judgments of Supreme Court; (i). Badrinath Vs. Goverment of Tamil Nadu and Others, (2000) 8 SCC 395, (ii). State of Kerala Vs. Puthenkavu NSS Karayogam and Another, (2001) 10 SCC 191 and (iii). Mangal Prasad Tamoli (Dead) Vs. Narvadeshwar Mishra (Dead), (2005) 3 SCC 422, wherein Apex Court quashed the consequential order treating it to be ineffective as the basic order was quashed. Learned counsel for accused/appellant thus contended that since the conviction and sentence awarded to appellant under Section 8 of the POCSO Act is a logical consequence of the finding returned by Court below regarding the age of prosecutrix on the date of occurrence, therefore, once the finding returned by Court below qua the age of prosecutrix on the date of occurrence is itself illegal, the conviction and sentence awarded to appellant under Section of the POCSO Act on the basis of determination made by Court below regarding the age of prosecutrix on the date of occurrence is also illegal and therefore, liable to be set aside by this Court.
36. In opposition to above, the learned A.G.A. would submit that as per determination made by Court below, the prosecutrix was a child within the meaning of term child as defined in the POCSO Act. From perusal of deposition of the prosecutrix, an offence under Section 8 of the POCSO Act is clearly made out as the accused/appellant dislodged the modesty of the prosecutrix in a manner, which is within the ambit of Section 7 of the POCSO Act. Further since the accused-appellant failed to dislodge the presumption arsing against an accused under Section 29 of the POCSO Act that in case of an offence under Section 3, 5, 7 and 9 of the POCSO Act, there is a presumption regarding the occurrence having taken place and the accused-appellant having failed to discharge the said burden, the conviction and sentence awarded to appellant under Section 8 of the Act of 215 cannot be said to be illegal.
37. Upon evaluation of the rival submissions, this Court finds that since the finding returned by Court below regarding age of the prosecutrix on date of occurrence is perverse and erroneous, therefore, the conviction and sentence awarded to accused/appellant under Section 8 of the POCSO Act, which is primarily based on the finding returned by Court below regarding the age of the prosecutrix on the date of occurrence is also unsustainable in law. The objection raised by the learned A.G.A. to the submissions urged by the learned counsel for appellant regarding illegality in the conviction and sentence awarded to accused/appellant under Section 8 of the POCSO Act has been made only to be rejected. Once the prosecutrix herself is not a child within the meaning of term child as defined in the POCSO Act, the question of presumption against an accused under Section 29 of the POCSO Act shall not arise in the present case and is therefore, meaningless in the present context. In view of above, the conviction and sentence awarded to accused/appellant under Section 8 of the POCSO Act cannot be sustained in law.
(QUESTION NO. -C) -
38. The third question, which has arisen for consideration in the appeal is the validity of conviction and sentence awarded to accused/appellant under Section 3(1)(10) SC/ST Act. Court below in exercise of jurisdiction under Section 216 Cr.P.C. framed additional charge under Section 3(1)(10) SC/ST Act against accused/appellant, vide order dated 18.01.2021. PW-1 deposed before Court below on 18.01.2021.
39. In challenge to the conviction and sentence awarded to accused-appellant under Section 3(1)(10) SC/ST Act, the learned counsel for accused/appellant urged that no documentary evidence was adduced by the prosecution before Court below to evidence the fact that prosecutrix belongs to SC/ST category. He has then referred to Section 91 of the Evidence Act and on basis thereof contends that once no documentary evidence was filed to prove and establish the caste of prosecutrix on the basis of same, the prosecution miserably failed to establish the commission of an offence under Section 3(1)(10) SC/ST Act. Attention of the Court was invited to paragraph 8 of the impugned judgment, wherein Court below has detailed the documentary evidence filed by the prosecution.
40. It was thus urged by the learned counsel for appellant that in the absence of any documentary evidence to show that the prosecutrix belongs to SC/ST category, the conviction and sentence awarded to appellant under Section 3(1)(1) SC/ST Act is based upon no evidence.
41. Once the prosecutrix alleged herself to be a member of SC/ST category, the burden was upon the prosecution itself to prove the said fact. Since the prosecution wanted the Court to believe that the prosecutrix belongs to SC/ST category, therefore, by reason of Section 103 of the Evidence Act, the burden was upon the prosecution itself to evidence the said fact. As no documentary evidence was furnished by the prosecution in this regard, the conviction and sentence awarded to accused/appellant under Section 3(1)(10) SC/ST Act cannot be sustained and therefore, liable to be set aside by this Court.
42. Learned counsel for accused/appellant then referred to the statement of accused/appellant recorded under Section 313 Cr.P.C. With reference to the same, he contended that the adverse circumstance; that accused/appellant uttered caste denoting words against prosecutrix even when the prosecutrix belongs to SC/ST category was not disclosed to accused/appellant at the stage of Section 313 Cr.P.C. As the said adverse circumstance was not disclosed to the accused/appellant, the conviction and sentence under Section 3(1)(10) SC/ST Act awarded to accused/appellant cannot be sustained.
43. Per contra, the learned A.G.A. for State-opposite party-1 vehemently denied the fact that conviction and sentence awarded to accused/appellant under Section 3(1)(10) SC/ST Act is illegal. The learned A.G.A. would submit that the conviction and sentence awarded to appellant under Section 3(1)(10) SC/ST Act is perfectly just and legal. None of the submissions urged by the learned counsel for accused/appellant, in challenge to the same are sustainable in law, as no evidence to the contrary was adduced by the accused before Court below.
44. Upon evaluation of the rival submissions, this Court finds that conviction and sentence under Section 3(1)(10) of the SC/ST Act has been awarded to accused/appellant by Court below on the basis of oral deposition of the prosecutrix. However, no documentary evidence was adduced on behalf of the prosecution i.e. Caste Certificate of the prosecutrix to evidence the same. In the absence of any documentary evidence i.e. Caste Certificate issued by the competent authority regarding the caste of the prosecutrix having been filed before Court below, the prosecution failed to discharge its burden as it was the prosecution, which exerted the fact before Court below that the prosecutrix belongs to SC/ST category and therefore, the said burden could not be shifted upon the defence to prove to the contrary. Moreover, Section 91 of the Evidence Act mandatorily requires to evidence the same. For ready reference, the same is reproduced herein below;-
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document. When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Exception 1.When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2. Wills 3[admitted to probate in 4[India]] may be proved by the probate
45. Apart from above, upon perusal of the statement of the accused under Section 313 Cr.P.C., it is apparent that the adverse circumstance i.e. the prosecutrix belongs to SC/ST category as she is Jatav by caste and yet caste denoting words were uttered by the accused/appellant was not disclosed to the accused.
46. Since the said adverse circumstance itself was not disclosed. to accused the conviction and sentence awarded to accused/appellant by Court below under Section 3(1)(10) SC/ST Act cannot be sustained.
(QUESTION NO.-D) -
47. Accused/appellant has also been convicted under Section 504 IPC and thus sentenced to 1 year rigorous imprisonment. Section 504 IPC reads as under;-
Section 504 IPC- Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
48. In order to prove a charge under Section 504 IPC, the following must be proved;-
(a). Essential Ingredients. - An offence under this Section has following essential ingredients:
(i). Intentionally insulting a person and thereby giving provocation to him;
(ii) The person insulting must intend or know it to be likely that such provocation will cause himi to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC.
49. In this regard, the deposition of PW-1 (the prosecutrix/victim) is relevant. The prosecutrix in her deposition before Court below has clearly and categorically stated about the conduct of the accused. She has specifically stated about the derogatory and immoral remarks made by the accused and also the act of molestation committed by accused resulting in her clothes being torn and she sustaining injuries. She has further stated that the accused uttered caste denoting words and has assassinated her character by using ugly and damaging words. She has ultimately stated that thereafter, the accused assaulted her on account of which, she sustained injuries, which have been mentioned in the medico legal examination report of the prosecutrix.
50. Though the prosecutrix (PW-1) was cross examined on behalf of accused/appellant at length but she could not be dislodged as she remained consistent.
51. The provisions of Section 504 IPC have been considered by the Apex Court in the case of Mohammad Wajid and Another Vs. State of U.P. and Others, 2023 SCC OnLine SC 951. Paragraphs 24, 25, 26, 27, 28, 29 and 30 of the said report are relevant for the controversy in hand, therefore, the same are extracted herein below;-
24. In the circumstances referred to above, we have reached the conclusion that Section 395IPC is not applicable to the case on hand.
25. Chapter XXIIIPC relates to criminal intimidation, insult and annoyance. Section 503 reads thus:
503. Criminal intimidation.Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation.
26. Section 504 reads thus:
504. Intentional insult with intent to provoke breach of the peace.Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
27. Section 506 reads thus:
506. Punishment for criminal intimidation.Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
if threat be to cause death or grievous hurt, etc.and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
28. An offence under Section 503 has the following essentials:
(1) Threatening a person with any injury;
(i) to his person, reputation or property; or
(ii) to the person, or reputation of any one in whom that person is interested.
(2) The threat must be with intent;
(i) to cause alarm to that person; or
(ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or
(iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.
29. Section 504IPC contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the section merely because the insulted person did not actually break the peace or commit any offence having exercised self-control or having been subjected to abject terror by the offender.
30. In judging whether particular abusive language is attracted by Section 504IPC, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant.
52. When the deposition of the prosecutrix is analyzed in the light of essential ingredients constituting an offence under Section 504 IPC as well as the observations made by the Apex Court as noted herein above, it is apparent that an incident took place, in which, the accused not only assaulted the prosecutrix but also uttered such words, which denote her caste and further assassinate her character. The deposition of PW-1 stands corroborated by the deposition of PW-2, who is an eye witness. However, there is no such evidence on the basis of which, an inference can be drawn that there was likely to be breach of peace or the victim would commit an offence. In view of above, the requirement of law for constituting an offence under Section 504 IPC in the light of above does not stand clearly satisfied. As a result, Court below has erred in law in arriving at the conclusion that as per the evidence on record, the commission of an offence under Section 504 IPC is fully established. The same is, therefore, liable to be set aside.
(QUESTION NO.-E) -
53. In respect of the conviction and sentence awarded to appellant under Section 323 IPC, this Court finds that the conviction and sentence under aforesaid Section has been awarded to accused/appellant on the basis of deposition of the prosecutrix (PW-1), the eye witness (PW-2) and the medical evidence on record (Ext-Ka-2) .
54. No illegality can be attached to the conviction and sentence awarded to appellant under Section 323 IPC as the medical evidence clearly supports the ocular version. As per the medico legal examination report of the prosecution i.e. Ext- Ka-2, the prosecutrix has sustained multimple abrasions on her person particularly in front of her chest. The prosecutrix in thus an injured eye witness. PW-3 Dr. Umesh Sharma has proved the medico legal report. The time and description of injuries sustained by the injured as suggested by PW-3 stands corroborated from the record. The Apex Court in the case of Manjeet Singh (Supra), has held that the testimony of an injured witness has higher evidentiary value and can be discarded only if compelling reasons have emerged on record. The prosecutrix was cross examined at length on behalf of accused but she could not be dislodged as nothing adverse could be culled out from her to make her unworthy of credit and belief. As such, no illegality has been committed by Court below in relying upon the deposition of prosecutrix, who is both reliable and credible. When the deposition of injured eye witness (PW-1) is examined in the light of parameters laid down in paragraph 31 of the judgment in Bharwad Jakshibhai Nagribhai (Supra), the same is both credible and reliable. Apart from above, it is also an accepted principle of criminal jurisprudence that if the accused denies the occurrence/injuries sustained by injured, then the burden shifts upon the accused himself to explain to the contrary by reason of Section 103 of the Evidence Act. Admittedly, no such burden was discharged by accused-appellant before court below nor the same was explained/discharged before this Court. As such, no illegality can be attached to the conviction and sentence awarded to accused/appellant under Section 323 IPC.
(QUESTION-F) -
55. Accused/appellant has been convicted and sentenced under Sections 354 and 354-B IPC simultaneously by Court below. As per the deposition of the prosecutrix and the medical evidence on record, it cannot said that modesty of the prosecutrix was not dislodged. However, the question is whether an accused can be convicted and sentenced for an offence under Sections 354 and 354B IPC simultaneously or to put it differently whether Court below was justified in convicting and sentencing the accused/appellant under Sections 354 and 354-B IPC. Section 354-B is a specie of Section 354 IPC. There is no bar in the Code i.e. IPC for simultaneously convicting an accused under Section 354 and 354B IPC. Learned counsel for appellant contended that similar provision exists under Section 363 and 366 IPC. Since Sections 363 and 366 IPC are pari-materia, the Apex Court in the case of Rajendra Vs. State of Maharashtra, 1997 SCC (Crl) 840, held that conviction and sentence unde Sections 363 and 366 IPC should not be awarded simultaneously. If an accused has been convicted and sentenced under Section 366 IPC, Courts should refrain from awarding conviction and sentence under Section 363 IPC as an offence under Section 366 IPC is a higher offence. Drawing sustenance from the said judgment, it was urged by the learned counsel for accused/appellant that an offence under Section 354-B IPC is a higher offence, as it carries a higher punishment. On the edifice of aforesaid submission, it was thus urged by the learned counsel for accused/appellant that conviction and sentence awarded to accused/appellant under Section 354 IPC is thus liable to be set aside by this Court. Learned counsel for appellant invited the attention of Court to the prohibition contained in the Probation of Offenders Act and on basis thereof, he urged that since appellant has not been convicted either with a life sentence or a life turn, there was no legally justifiable ground to deny the benefit of probation to appellant. Furthermore, no evidence has come on record to show that offence complained of is not the first offence committed by appellant. As such, the conclusion drawn by Court below to deny the benefit of probation to appellant cannot be sustained.
56. Per contra, the learned A.G.A. representing State-opposite party-1 vehemently opposed the submissions urged by the learned counsel for appellant. Learned A.G.A. submitted that irrespective of the submissions urged by the learned counsel for appellant, no illegality or infirmity can be attached to the refusal accorded by Court below for grant of benefit of probation to appellant. According to the learned A.G.A., considering the severity of the offence in the light of the fact that the prosecutrix is a young and innocent girl, no illegality or arbitrariness can be attahced to the exercise of discretion by Court below in favour of the prosecution.
57. Upon evaluation of the rival submissions and considering the fact that appellant has caused injury near the upper private part of the prosecutrix, which shall be an scar on her mental frame throughout her life, this Court is not inclined to upset the finding returned by Court regarding refusal to grant benefit of probation to appellant.
(QUESTION-G)-
58. It was pleaded on behalf of accused before Court below that the criminality committed by appellant is the first criminality and thereafter, he be given the benefit of prohibition. The said plea also amounts to an admission by the accused regarding commission of crime in question. Court below has declined to grant the benefit of probation as available under the Probation of Offenders Act to the accused/appellant on the ground of nature and gravity of offence.
59. It is proved from the evidence on record that accused/appellant is guilty of dislodging the modesty of a young an innocent girl. As such, offence complained of against accused/appellant is not only illegal but also immoral. In fact, it is not private in nature but a crime against society. As such, no illegality or perversity can be attached in the exercise of jurisdiction by Court below referring to grant the benefit of probation to accused/appellant.
60. On the other hand, the learned A.G.A. would submit that since there is no prohibition in convicting and sentencing an accused under Sections 354 and 354-B IPC simultaneously, no illegality can be said to have been committed by Court below.
61. As a result, the present appeal succeeds in part and is partly allowed.
62. The conviction and sentence awarded to accused-appellant by Court below under Section 8 of the POCSO Act, Section 3(1)(10) SC/ST Act and Sections 354 and 504 IPC are set aside, whereas the conviction and sentence awarded to accused/appellant under Sections 323, 354-B IPC are sustained.
63. Appellant is on bail. His bail bonds are cancelled. Appellant shall surrender before Court below immediately, whereon, he shall be taken into custody to serve out the remaining part of sentence awarded by Court below.
64. Copy of this order be sent to Court below in advance for compliance.
October 17, 2025 Vinay