Ajay Gendre Vs State of Chhattisgarh

This Criminal Appeal has been preferred by the appellant under Section 374 (2) of the Cr.P.C. challenging the legality, propriety and correctness of judgment of conviction and order of sentence dated 27.5.2022 passed by the Additional Session Judge (FTC), District Bemetara (C.G.) (henceforth referred as ‘Special Court’) in Session Case No.53/2020 whereby appellant/ accused has been convicted and sentenced in the following manner:-

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S.	Conviction under	Jail	Fine	Default
No.	Section	Sentenc	e Sentence	Stipulation
1.	354 of the IPC	R.I. for	two Rs. 500/-	R.I for one
		years		month
2.	12 of the POCSO Act	R.I. for years	two Rs. 500/-	R.I for one month

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All the substantive jail sentences have been directed to run concurrently.

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Case of prosecution, in brief, is that on 24.4.2020 at about 6:00 am, minor victim along with her younger sister had gone to collect cow dung towards agricultural field, at that time, appellant/accused caught hold of her hand with ill intention; told her that he loves her and kissed her cheeks. In order to protect victim, her younger sister assaulted the appellant twice with wooden stick because of which he ran away. Based on above fact, written complaint (Ex.P1) was made by victim on the same day, based on which FIR (Ex.P2) was registered in Police Station Saja, District Bemetara under Section 354A, 354D of the I.P.C. and Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for brevity ‘the POCSO Act, 2012’). Statement of victim under Section 164/ 161 of the Cr.P.C. was recorded. Statement of other witnesses were also recorded under Section 161 Cr.P.C.. Spot maps vide Ex.P3 & Ex.P4 were prepared by the Police and Patwari, respectively. Progress report of class 7^th of victim was seized vide seizure memo Ex.P5. Dakhil Kharij Register of Middle School pertaining to victim was seized vide seizure memo Ex.P7. One axe having handle of bamboo was seized vide seizure memo Ex.P11. Appellant was arrested vide arrest memo Ex.P12. After due investigation, appellant was chargesheeted for the offence under Section 354A, 354D of the I.P.C. and Section 12 of the POCSO Act, 2012.

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Learned Special Court framed charges under Section 354, 354D(i) of the I.P.C. and Section 11(iv) / 12 of the POCSO Act, 2012. The appellant abjured his guilt and entered into defense.

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During course of trial, in order to bring home the charges, the prosecution examined as many as 06 witnesses and exhibited 16 documents to prove his case. Statement of the appellant was recorded under Section 313 Cr.P.C. in which he denied all the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. Appellant has not examined any witness in his defense.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence.

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Learned counsel for the appellant would submit that in the instant case, only on the basis of Dakhil Kharij Register of Middle School of victim, she has been held minor by learned Special Court, no any clinching evidence has been adduced by the prosecution in this respect. Even, mother of victim (PW1) and victim (PW2) have not stated her date of birth. Whereas on the date of incident, victim was aged about 17 years 10 months 09 days i.e., she was at the verge of majority, despite that learned Special Court held her minor, which is against evidence and law. He would further submit that so far as allegation of sexual harassment is concerned, alleged incident occurred in agricultural field, to which, except victim herself and her younger sister, there is no independent witness. He would next submit that there was previous enmity between

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appellant and family members of victim, which victim (PW2) and mother of victim (PW1) have specifically admitted in their deposition, therefore, only on the basis of interested witnesses and without support of independent witnesses, charges levelled against appellant cannot be held proved beyond reasonable doubt.

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Per contra , learned State counsel would support the impugned judgment of conviction and order of sentence.

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I have heard learned counsel for the parties, considered their rival submissions made and also went through the record of learned Special Court with utmost circumspection.

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In the instant case, as per case of prosecution, victim (PW2) was minor on the date of incident and as per her date of birth i.e., 15.6.2002 on the date of incident i.e., on 24.4.2020 she was aged about 17 years 10 months and 09 days. Aforesaid date of birth has been proved by prosecution, on the basis of Dakhil Kharij Register (Ex.P9c) of Middle School of victim which was seized from the concerned Middle School, Khurusbod vide seizure memo Ex.P7, but, it is settled proposition of law that only on the basis of Dakhil Kharij Register, age of a person cannot be held proved beyond reasonable doubt until and unless the basis on which the date of birth recorded in the School record is proved or any other cogent evidence is adduced with regard to age.

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In the instant case, neither victim (PW2) nor her mother (PW1) and her younger sister have told date of birth of victim. PW1 mother of victim, herself has stated that while admitting victim in school, her grandfather had recorded her date of birth, on the basis of assumption, but, neither grandfather of victim has been examined nor it has been proved that on the basis of which document aforesaid date of birth was recorded in the School.

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Since no legal evidence, particularly as provided under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 has been brought by prosecution, only on the basis of Dakhil Kharij Register, that too, of Middle School of victim, her date of birth cannot be held proved, particularly, when victim was at the verge of majority. Therefore, finding recorded by learned Special Court that victim (PW2) was minor, on the date of incident, is perverse and illegal, hence, the same is liable to be and is hereby set-aside.

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So far as allegation of sexual assault upon victim (PW2) is concerned, both the parties are resident of same village. Victim has stated in her deposition that when she and her younger sister had gone to collect cow dung, at that time, appellant caught hold of her hand and by holding her ears, he kissed her; whereupon her younger sister (PW3) assaulted appellant by means of handle of axe 2-3 times on his leg, upon which appellant left the victim and caught hold of her younger sister by saying why did you hit me. Aforesaid fact also find support from deposition of her younger sister (PW3) and this fact was narrated by them to their mother (PW1). FIR (Ex.P2) was lodged on the same day. However, it is noted that had any forceful assault by holding hand and ears of victim was made, then there would have some injuries on that particular body part of victim (PW2), but, no such injury and even appearance of rashes, etc., has been complained by the victim and her younger sister. It is also evident from the evidence of mother of victim (PW1), victim (PW2) & younger sister of victim (PW3) that prior to this incident, there was dispute between appellant and family members of victim and no independent witness has been examined, therefore, in absence of any medical evidence or any injury on the person of victim, assault upon victim by appellant is

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not found to be proved beyond reasonable doubt. The victim (PW2) and her younger sister (PW3) have stated in their examination-inchief that appellant had kissed the victim, but, they have not been cross-examined on this point, therefore, from the evidence available on record, assault by appellant, upon victim to outrage her modesty is not found to be proved beyond reasonable doubt, but, since, appellant kissed on cheeks of victim, instead of Section 354 of I.P.C., offence under Section 354 A (i)(ii) of I.P.C. is found proved against the appellant.

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In view of above discussion, I am of the opinion that conviction imposed on the appellant under Section 354 of the I.P.C. can be altered/converted to Section 354A(i)(ii) of the I.P.C., therefore, conviction part of appellant for the offence under Section 354 IPC as well as the sentence awarded to him by the trial Court is hereby set-aside. Instead thereof, appellant is convicted under Section 354 A(i)(ii) of the IPC. Since the appellant remained in jail as per certificate prepared by learned Special Court under Section 428 Cr.P.C., from 24.4.2020 to 05.6.2020; he is a young boy aged about 20 years; nothing has been mentioned in impugned judgment about criminal antecedent of the appellant, and no useful purpose would be served in again sending him behind the bars, this Court is of the opinion that ends of justice would be served if jail sentence imposed against appellant is reduced to the period already undergone by him. However, the fine sentence and default stipulation imposed by the Special Court shall remain intact.

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Since the appellant is reported to be on bail, he need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the

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provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023.

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