Dilip Sidar Vs State Of Chhattisgarh

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2025:CGHC:12945

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 357 of 2016

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Dilip Sidar S/o Jodhan Sidar Aged About 28 Years R/o Village Kotendarha, Police Station Saraipali, Civil And Revenue District Mahasamund Chhattisgarh , Chhattisgarh

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... Appellant

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versus

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State Of Chhattisgarh Through - Station House Officer, Police Of Police Station - Saraipali, District - Mahasamund Chhattisgarh , Chhattisgarh

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... Respondent

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(Cause title taken from Case Information System)

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For Appellant : Mr. Anil Gulati, Advocate For Respondent/State : Mr. R.C.S. Deo, Panel Lawyer

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Hon'ble Shri Justice Ravindra Kumar Agrawal

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Judgment on Board

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18/03/2025

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VEDPRAKASH DEWANGAN

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Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.04.17 19:11:03 +0530

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The present criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been filed by the appellant against the impugned judgement of conviction and sentence dated 02.03.2016 passed by learned Special Judge (Protection of Children from Sexual Offences Act), Saraipali, District Mahasamund (C.G.), in Special

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Sessions Case No. 10 of 2015, whereby the appellant has been convicted and sentenced in the following manner:-

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Conviction	Sentence
U/s. 456 of IPC	R.I. for 03 years and fine of Rs. 1000/-, in default of payment of fine further S.I. for 01 month.
U/s. 8 of POCSO Act	R.I. for 03 years and fine of Rs. 1000/-, in default of payment of fine further S.I. for 01 month.

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Both the sentences are directed to be run concurrently

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The brief facts of the case are that on 06.11.2015, the victim/PW-1 lodged a written complaint (exhibit P-1) to the police with the allegation that in the previous night at about 12:00 o’clock, the appellant entered into her house after opening the door from its slit, came to her, gagged her mouth and took her towards courtyard. When he tried to remove her clothes, she started scuffling for her release and gave nail scratch marks on his face and raised alarm for help. After hearing her hues and cries, her parents came there and asked the appellant, why he is doing like this and when they calling the village Sarpanch, the appellant fled away by jumping over the wall. On the basis of written complaint, the FIR (exhibit P-2) was registered against the appellant under Sections 456 and 354 of IPC. The victim was sent for her medical examination to Community Health Centre, Saraipali, where she was being medically examined by PW-8/Dr. Smt. Pramila Toppo, who after her examination gave report (exhibit P-7). While medically examined her, the doctor has found pain on her neck and abrasion, 3 cm x 1 cm, post. aspect

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under right knee joint, which was caused by hard and blunt object and simple in nature. With respect to the age and date of birth of the victim, the police has seized the Kotwari Register vide seizure memo (exhibit P-5) and after retaining the attested true copy of the Kotwari Register (exhibit P-6C), the original register was returned back.

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Spot map (exhibit P-3) was prepared by the police. The appellant was arrested on 09.11.2015. 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 against the appellant for the offence under Sections 456, 354, 323 and 506 of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’).

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The learned trial Court has framed charge against the appellant for the offence under Sections 456, 354 and 506 of IPC and Section 8 of POCSO Act. The appellant denied the charge and claimed trial.

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In order to prove the charge against the appellant, the prosecution has examined as many as 11 witnesses. Statement of the applicant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence.

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After appreciation of oral as well as documentary evidence, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgement. Hence this appeal.

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Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contractions in the evidence of prosecution witnesses and their evidence are not sufficient to hold conviction of the appellant for the alleged offence. There is no legally admissible evidence with respect to the age and date of birth of the victim that she was minor and less than 18 years of age at the time of incident. Since, the victim was not minor on the date of incident, the provisions of POCSO Act are not applicable in the case and the appellant cannot be convicted for the same. The Kotwari Register produced by the prosecution has not been proved in accordance with law and there is no other evidence, like birth certificate or ossification test report of the victim to prove her age. The allegation leveled by her against the appellant is also improbable as in the night it would not be possible for anyone to enter into the house of others, when the door of the houses were closed. He would also submit that on the same set of evidence, the appellant has been acquitted from the offence under Sections 354 and 506 Part-II of IPC. The report has been lodged by the victim only on suspicion, therefore, in absence of any cogent and clinching evidence against the appellant, he cannot be convicted and is entitled for acquittal.

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On the other hand, learned counsel 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 evidence of prosecution witnesses are fully reliable and corroborated

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with each others. The evidence of the victim itself is sufficient to hold conviction of the appellant as he can be put as the injured witness. She being the victim of the offence has duly identified the appellant, when he entered into her room, dragged her out from her room and outraged her modesty. It is only when she shouted for help, her parents came there and then the appellant fled away. Injuries have been found on the body of the victim, which further strengthen her case. The appellant was also seen in the house of the victim by her parents and therefore, there are overwhelming evidence against the appellant and his conviction is absolutely justified, which needs no interference.

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I have heard learned counsel for the parties and perused the record of the case.

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The first and foremost question arises for consideration would be the age of the victim, as to whether on the date of incident, the victim was minor and less than 18 years of age or not.

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The prosecution has mainly relied upon the Kotwari Register (exhibit P-6C), which has been seized vide seizure memo (exhibit P-5) and sought to be proved by PW-5/Kotwar of the village. PW-5 has stated in his evidence that he is the Kotwar of the village Kotandarha. The police has seized the Kotwari Register from him with respect to the date of birth of the victim vide seizure memo (exhibit P-5). After retaining its attested true copy, the original register was returned back to him, which he brought today with him. As per the Kotwari Register, the date of birth of the victim is recorded as 25.11.1998. In

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cross-examination, he admitted that in the original Kotwari Register, his signature is not there, even there is no signature of the person, who have got recorded the date of birth of the child in the Kotwari Register. He further admitted that the father of the victim is illiterate person. He further stated that after about 06 days of birth of the victim, he was being informed about her birth, as he was the Kotwar of the village.

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The Kotwari Register (exhibit P-6C) is the Kotwari Register of 1998. The said Kotwari Register is seized from him on 07.11.2015 i.e. after about 17 years of its preparation. In Para 3 of his evidence, the PW-5 has stated that the said Kotwari Register is being deposited in the Police Station having jurisdiction over the area. In the present case, the Kotwari Register has been seized from this witness/PW-5 and the same has not been deposited in the Police Station. As per his admission, made in Para 5 of his deposition, there is no signature of the Kotwar as well as no signature of the person, who has got recorded the date of birth of the victim. The PW-5 may be a person, who has got recorded the date of birth of the victim in the said Kotwari Register, but the nature of evidence produced by the prosecution with respect to the Kotwari Register and its entries, it would not be safe to hold that the prosecution has proved the age of the victim on the basis of said Kotwari Register that she was minor and less than 18 years of age.

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PW-1/the victim has stated in her evidence that she did not know her date of birth, but her age is 16 years. In cross-examination, she stated that she did not know the age of her elder brothers. She also

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did not know as to how many years back they have got married. She could know her age on the basis of information given by her family members and she on her own did not know her date of birth.

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PW-2/the father of the victim has stated that the victim is aged about 17 years. He did not know her date of birth, but he has got recorded her birth with the Kotwari Register. In cross-examination, he stated that he is aged about 40 years, he has got married since 30 years back and after 3-4 years of his marriage, his elder son was born. After birth of his elder son, his wife has died and then he performed second marriage, from whom, his another son and the victim born. He did not know the age gap between his two sons.

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PW-3 is the brother of victim. He too has not disclosed any date of birth of the victim and has stated that she is aged about 17 years. When the leading question was being asked from him, he stated that in the Kotwari Register, her date of birth is recorded as 25.11.1998. In cross-examination, he stated that he is aged about 38 years. He did not know the age gap between him and his younger brother. After 07 years of his marriage, his brother has got married and the victim is 2-3 years younger than his brother.

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PW-6 is the villager who stated that he saw the Kotwari Register, in which the date of birth of the victim is recorded as 25.11.1998. In cross-examination, he stated that he could not know the date of birth of his wife and since he saw the date of birth of the victim in Kotwari Register at the time of its seizure, he stated about the same.

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From all these evidences, when the Kotwari Register has not been proved in accordance with law as the same has been seized from the possession of the Kotwar, which is required to be submitted to the Police Station after the reasonable time. There is no signature of the Kotwar or the person, who has got recorded the date of birth and further neither the victim nor her father or brothers have disclosed any date of her birth. The age shown by them are also inconsistent and there is no cogent evidence that she was minor on the date of incident. Only on the basis of Kotwari Register (exhibit P-6C), it would be very difficult to hold that the victim was minor and less than 18 years of age at the time of incident. There is no other evidence available on record to prove the same, yet the learned trial Court has held her minor.

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So far as the allegation of outraging the modesty is concerned, I have again examined the evidence of the victim/PW-1. She stated in her evidence that on the date of incident, when she was sleeping in her room, at about 12:00 o’clock in the night, the appellant opened the door of her room by it slit and entered inside the room, gagged her mouth and dragged her towards courtyard and pressed her neck. He threatened her that he will kill her and started pressing her breasts and tried to remove her clothes. She gave nail scratch mark on her body and started shouting. On hearing her shouts, her parents and other family members came there and asked the appellant, why he is doing like this and then the appellant fled away by jumping over the wall. Thereafter, they called the village Kotwar and informed the incident and on the next day, she lodged the report. In cross-

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examination, the victim remained firm in saying that the appellant entered inside her house and outraged her modesty. A suggestion was given in her cross-examination that the victim herself called the appellant on the date of incident, though she denied the suggestion, but the suggestion itself amounts to admission that on the date of incident, the appellant had gone to her house. She was very firm in saying that she identified the appellant by the light of small bulbs. She also stated in her evidence that by the pressing of neck by the appellant, she was feeling pain on her neck. She also denied that she was having love affairs with the appellant. Nothing could be extracted from her evidence, so that she could be disbelieved.

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PW-2 is the father of victim, has stated in his evidence that on the date of incident at about 12:00 o’clock in the night, they heard the noise of the victim from courtyard and whey they had gone to the spot, they saw that his daughter was being caught hold by the appellant and when he asked from him as to what he was doing here, he fled away by jumping over the wall. His daughter has informed about the incident that the appellant has outraged her modesty by pressing her breasts and gagged her mouth and neck. In his cross-examination also, he remained firm in support of the victim and the defence could not extract any material to disbelieve him. There is no reason for false implication of the appellant either by the victim or by her father.

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PW-3 is the brother of the victim, he too has supported the prosecution case and stated as the PW-2 has stated. He too has supported that in the night, when he woke up after hearing the noise

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of the victim, he saw that in their courtyard, the appellant pressed the neck of his sister and when they asked from the appellant about his presence, he fled away from the back wall.

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PW-4 is the sister-in-law of the victim and PW-6 and PW-7 are the neighbours of the victim. Though they have not seen the incident, but they have supported that when they reached on the spot, they have been informed by the victim and her family members that the appellant outraged the modesty of the victim.

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PW-8/Dr. Smt. Pramila Toppo, who medically examined the victim has found injuries on her neck and right knee, which supported the allegation made by the victim that the appellant pressed her neck and dragged her towards courtyard.

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From all these evidences, the prosecution is able to prove that on the date of incident, the appellant had outraged the modesty of the victim after entering into her house by night and caused injuries to her.

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Now the question would be what offence the appellant has committed.

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The learned trial Court has framed charge for the offence under Sections 456, 354, 506 Part-II of IPC and Section 8 of POCSO Act. The appellant has been acquitted by the learned trial Court from the offence of Sections 354 and 506 Part-II of IPC, whereas he has been convicted for the offence under Section 456 of IPC and Section 8 of POCSO Act. From the evidence led by the prosecution, the offence of Section 456 of IPC is found proved against the appellant that on the date of incident, the appellant has committed house breaking by

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night, for which he has rightly been convicted by the learned trial Court. Hence, this Court is also in agreement with the conviction of the appellant for the offence under Section 456 of IPC.

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Since, the victim is not found to be minor on the date of incident, the appellant cannot be convicted under Section 8 of POCSO Act, however, from the evidence it is proved that on the date of incident, the appellant outraged the modesty of the victim, which comes under the offence of Section 354 of IPC. Although, initially the charge for the offence under Section 354 of IPC was framed and he has been acquitted, but in the facts and circumstances of the case, when the offence of outraging the modesty of the victim has been found proved and the victim was not found to be minor, the conviction of the appellant can be altered from the offence of Section 8 of POCSO Act to Section 354 of IPC. Therefore, the conviction of the appellant from the offence under Section 8 of POCSO Act is set aside, instead thereof he has been convicted for the offence under Section 354 of IPC.

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So far as the sentence is concerned, the offence of Section 456 of IPC does not provide any minimum sentence, whereas the offence of Section 354 of IPC provided the minimum sentence of R.I. for 01 year, which may extend to 05 years.

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In the matter of Mohammad Giasuddin v. 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

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you are to reform him, you must improve him and, men are not improved by injuries and held in Para 9 as follows:

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"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 merely produces laceration of his mind. In the words of

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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."

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Considering the facts and circumstances of the case, age of the appellant, the length of criminal lis, which the appellant has faced, the nature of offence and the manner in which it has been committed and also in view of the law laid down by the Hon'ble Supreme Court in Mohammad Giasuddin’s case (supra), this Court deem it appropriate to award sentence to the appellant as below:

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Conviction	Sentence
Section 456 of IPC	R.I. for 01 year with fine of Rs. 1000/-, in default of payment of fine further R.I. for 01 month.
Section 354 of IPC	R.I. for 01 year with fine of Rs. 1000/-, in default of payment of fine further R.I. for 01 month.
Both the	sentences are directed to run concurrently.

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The appellant is remained in jail from 09.11.2015 to 26.04.2016. Presently, he is reported to be on bail. He shall undergo the entire sentence as awarded by this Court. He is entitled for set-off of his undergone period.

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Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance.

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Sd/(Ravindra Kumar Agrawal) Judge

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ved

Dilip Sidar v. State Of Chhattisgarh

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Dilip Sidar v. State Of Chhattisgarh

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