Ashok Das Mahant Vs State of Chhattisgarh

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CGHC010093692018

NAFR

Digitally signed by INDRAJEET INDRAJEET SAHU SAHU Date: 2026.09.22 HIGH COURT OF CHHATTISGARH AT BILASPUR 11:01:46 +0530

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CRA No. 454 of 2018

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1 - Ashok Das Mahant S/o Shri Gyan Das Mahant Aged About 28 Years R/o Village Thakurdeepa, P. S. Kharsia, Distt. Raigarh, Civil And Revenue Distt. Raigarh Chhattisgarh.

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... Appellant

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Versus

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1 - State of Chhattisgarh Through P. S. Kharsia, Distt. Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh

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... Respondent(s)

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(Cause-title taken from Case Information System) For Appellant : Shri Manoj Kumar Sinha, Advocate. For State : Shri Malay Jain, Panel Lawyer.

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Hon’ble Shri Justice Ravindra Kumar Agrawal Judgment on Board

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18.09.2026

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1 Though the matter was listed for orders on IA No.2/2026, an application for condonation of non appearance of appellant before Registry of this court on 02.09.2026, however, considering the fact that the appeal is pending since 2018, IA No.02/2026 is allowed; non appearance of appellant before Registry on 02.09.2026 is condoned; and with the consent of the parties, the appeal is heard finally.

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2 The present appeal has been filed by the appellant against the impugned judgment of conviction and order of sentence dated 08.03.2018 passed by the IInd Special Judge (POCSO) District

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Raigarh, in POCSO Act Case No.2012/94/16 whereby the appellant has been convicted for the offence under Sections 363 IPC and Section 8 of The Protection of Children From Sexual Offences Act, 2012 (in short, POCSO Act) and sentenced to undergo RI for 3 years and fine of Rs.1000/- (in two counts) with default stipulations for both the offences. Both the sentences were directed to run concurrently.

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3 Brief facts of the case are that, on 19.11.2016 at about 5:30 PM the victim was going to her house from grocery shop after purchasing biscuits. On the way, the appellant took the victim towards the field after gagging her mouth and with an intention to commit rape upon her, removed her undergarment, laid her down on the field and while removing his own full pant, at the same time, PW-4 came there and when she scolded the appellant, he fled away from the spot. PW-4 took the victim to her house and thereafter she informed her parents and then lodged the report. An FIR Ex.P/3 was registered against the appellant for the offence under Sections 376, 511 IPC and Section 8 of POCSO Act. Spot map Ex.P/1 was prepared by the police. Wrapper of biscuit packet was seized from the spot vide seizure memo Ex.P/4. With respect to age and date of birth of victim, school record Ex.P/5-C has been seized by the police vide seizure memo Ex.P/5. As per school record, the date of birth of victim is 03.09.2006. The victim was sent for counseling at Child Welfare Committee Raigarh from where counseling report Ex.P/8 was received. 164 CrPC statement of the victim Ex.P/2 was recorded in which she disclosed the entire incident which she suffered. The appellant was arrested on 20.11.2016 and he was sent for his medical examination to Community Health Centre,

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Kharsia where he was medically examined by PW-10 Dr. Shailendra Kumar Agrawal who gave his report Ex.P/6. While examining the appellant, the doctor noticed abrasion on left Cheek, Neck, right clavicle and left side of Chest below left clavicle region.

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4 The statement under Section 161 CrPC of witnesses were recorded. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Sections 376,511,363,341 IPC and Section 8 of POCSO Act before the Judicial Magistrate First Class Kharsiya. The case was committed to the Court of Sessions Judge Raigarh from where it has been transferred to the trial Court for its trial.

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5 The trial Court has framed charge against the appellant for the offence under Sections 376,511,363,366,341 IPC and Section 8 of POCSO Act. The appellant abjured his guilt and claimed trial.

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6 In order to establish the charge against the appellant, the prosecution has examined as many as 15 witnesses. Statement under Section 313 CrPC of the appellant has also been recorded in which he denied the circumstances appears against him, pleaded innocence and have submitted that he is innocent and falsely implicated in the offence.

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7 After appreciation of oral as well as documentary evidence led by the prosecution, the trial Court has convicted the appellant and sentenced him as mentioned in opening para of this judgment. Hence this appeal.

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8 Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the prosecution witnesses which cannot be made basis to convict him in the offence in question. The victim as well as other witnesses have not stated anything that the

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appellant tried to make sexual assault upon the victim and it only came on evidence that he removed his clothes. Even if the entire allegation is accepted as it is, the offence of appellant, if any, comes under the definition of Section 11 of POCSO Act and not covered under Section 7 of the POCSO Act as there is no sexual assault, and therefore he cannot be convicted for the offence under Section 8 of the POCSO Act, but he may be convicted under Section 12 of the POCSO Act. He would further submit that there are material inconsistency in the evidence of prosecution witnesses. The victim as well as appellant are resident of same vicinity and they were acquainted with each other and on that pretext the victim accompanied the appellant towards her house, however, on the way, PW-4 raised suspicion who was having grudge against the appellant and made complaint against him. In view of evidence available on record, the appellant, atleast, is entitled for benefit of doubt and by giving him benefit of doubt, he may be acquitted. In alternative, he would submit that the offence of the appellant, if any, comes under the definition of Section 11 of POCSO Act and not under Section 7 and therefore he may be convicted under Section 12 of the POCSO Act instead of Section 8.

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9 On the other hand, learned counsel for the State opposes the submissions made by the appellant and would submit that the evidence of the plaintiff is clinching and cogent and she clearly deposed against the appellant that he gagged her mouth, kidnapped and took her towards the field, removed her clothes and when he was removing his own clothes, PW-4 came there who rescued the victim. All these act of the appellant clearly demonstrate the ingredients of offence under

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Section 7 of the POCSO Act. It is not a case where the appellant simply shows his private part to the victim, but there is evidence that appellant kidnapped and took the victim towards the field, removed her clothes and was about to commit rape upon her. This act of appellant comes under the definition of Section 7 of the POCSO Act and the trial court has rightly convicted him for the offence under Section 8 of the POCSO Act for sexual assault upon the victim. The evidence of PW-1 is duly supported by evidence of PW-4 who seen the appellant and victim in such condition under which the appellant was about to commit rape upon the victim. PW-4 is the witness who rescued the victim and witnessed the incident. PW-4 immediately informed the incident to the parents of victim. He would further submit that taking the victim by the appellant was seen by the other witness PW-5 & PW-6 who informed PW-4 and then PW-4 reached on the spot and rescued the victim. On medical examination of appellant, injuries were found on his body for which there is no explanation from the appellant side. All these evidences clearly demonstrate the guilt of appellant that he committed the offence. The age of the victim has been proved by the witness PW14 who is the Principal of School who proved the school register Ex.P/5-A. In any case the victim is minor and child under the definition as has been defined under Section 2(1)(d) of the POCSO Act. Therefore, the trial court has rightly convicted and sentenced the appellant and he is not entitled for acquittal.

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

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11 The age of the victim has been proved by the prosecution by leading evidence of PW-14, who is the Headmaster of the School. He has stated in his evidence that he brought the original school register with him which is Ex.P/5 and as per the entries made in the school register, the date of birth of victim is 03.09.2006. He has not been effectively cross examined by the defence that entries made in the school register has wrongly been recorded and except the seal in the transfer certificate and school register, no any cross examination was made from this witness. Though this witness have stated that he does not know whose signature is there in the document Ex.P/5-A, but this itself is not sufficient to rebut the entries made in the school record and to hold that it was not correct date of birth of victim.

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12 PW-1 has disclosed her age as 10 years at the time when her evidence is being recorded. The defence neither gave any suggestion nor challenged in cross examination that she is not aged about 10 years, but more than 10 years. Even otherwise, for the offence under Section 7 or 11 of POCSO Act, there is no age limit prescribed which bifurcate the distinct offence for the child of distinct age group. As per Section 7 & 11 of the POCSO Act, the victim should be a child and child has been defined under Section 2(1)(d) of the POCSO Act. As per Section 2(1) (d) of the POCSO Act, a child means any person below the age of 18 years. From the evidence available on record, in any case, the victim cannot be said to be more than 18 years and she defiantly comes under the definition of a child and therefore, the submissions made by the counsel for the appellant that age of the victim has not been proved by the prosecution is negated.

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13 So far as the offence kidnapping and sexual assault is concerned, I again examine the evidence of victim PW-1. She has stated in her evidence that on the date of incident when she was returning from grocery shop after purchasing biscuits, on the way, the appellant met her, asked her to go his house and while she was going with him, on mid way, he gagged her mouth, asked her not to disclose it to anyone, he took her towards field and removed her lower garments. He was also removing his full pant, however, and at the same time her aunt, PW-4 came there. Since the appellant gagged her mouth, she could not raise her alarm and when her aunt came her closer, the appellant fled away from the place. Thereafter, her aunt dressed her and took her to her own house where her mother was called and thereafter her mother and her aunt took her to Police Station. Her statement was also recorded before the Magistrate which is Ex.P/2. In cross examination, she remain firm in saying that it is the appellant who took her towards the field after gagging her mouth he removed her undergarment and also removed his own clothes. The suggestion given by the defence that appellant neither touched nor overcome upon her, has been denied by her. Though she denied some part of her police statement or 164 CrPC statement which was with respect to gagging of her mouth or saying by the appellant that not to disclose the incident to anyone, however, from perusal of her 164 CrPC statement Ex.P/2 she reiterated the allegation that when she was returning from grocery shop, she was being kidnapped by the appellant and in the field he removed her lower garments and also removed his clothes and at the same time her aunt

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came there and then the appellant fled away. Both these piece of evidences correlate with each other and duly corroborated.

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14 The evidence of PW-1 is duly supported by the evidence of PW-4 who rescued her. PW-4 have stated in her evidence that on the date of incident her neighbor PW-5 saw the appellant and victim together and the appellant was going towards the filed along with victim. She informed PW-4 about the same who was in search of victim. When PW-4 went towards the field and called her (victim), she saw the hairs of victim and when she reached on the spot, the appellant fled away. She found the victim in half naked condition. She also seen the appellant in half naked condition and after seeing PW-4, the appellant dressed up and fled away from the spot. She took the victim with her and informed her mother. She too remain firm in her cross examination and denied the suggestion given by the defence. She duly supported the prosecution case that appellant removed the undergarment of victim and himself and after seeing her, he fled away.

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15 PW-5 & PW-6 are the witnesses who seen the appellant taking the victim towards the field. They raise suspicion and informed it to PW-4 who was in search of victim. In their cross examination also they duly supported the prosecution case that after seeing the appellant and victim together they informed PW-4.

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16 Another piece of evidence is the MLC report of the appellant. The appellant was medically examined by PW-10 Dr. Shailendra Kumar Agrawal who found abrasion on the left Cheek, Neck, right clavicle, left side of chest below left clavicle region and number of abrasions were found. Though injuries were simple in nature, however, there is no

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explanation from the appellant as to how he received such injuries. The defence did not put any question in cross examination and this injury report Ex.P/6 duly supports the allegation against the appellant that he dragged the victim towards the field and tried to commit rape upon her. When she protested, the appellant gagged her mouth, however, at the same time, PW-4 came there and rescued the victim and the appellant fled away from the spot.

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17 The next submission of the appellant that even if the entire case of prosecution is accepted as it is, the offence of appellant does not travel beyond the scope of Section 11 of the POCSO Act, is concerned, it is necessary to note here the provision of Section 11 of the POCSO Act which reads as under :

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“11. Sexual harassment .—A person is said to commit sexual harassment upon a child when such person with sexual intent,—

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(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or

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(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or

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(iii) shows any object to a child in any form or media for pornographic purposes; or

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(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or

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(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or

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(vi) entices a child for pornographic purposes or gives gratification therefor. Explanation.—Any question which involves “sexual intent” shall be a question of fact.”

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18 The trial court has convicted the appellant for the offence under Section

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8 of the POCSO Act. The definition of sexual assault has been

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provided under Section 7 of the POCSO Act which reads as under :

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“7. Sexual assault.—Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any

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other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

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19 The contention of learned counsel for the appellant that in the absence of any evidence showing touching of the vagina, penis, anus or breast of the victim, the act attributed to the appellant would constitute only an offence under Section 12 of the POCSO Act, cannot be accepted. Section 7 of the POCSO Act is not confined to the first limb thereof relating to touching of the specified sexual parts of the body. Its second limb independently encompasses any other act done with sexual intent which involves physical contact without penetration. The expression ‘any other act’ is of wide amplitude and, as explained by the Hon’ble Supreme Court in Attorney General for India v. Satish, (2022) 5 SCC 545, an act involving physical contact, if actuated by sexual intent, would constitute sexual assault within the meaning of Section 7 of POCSO Act. In the present case, the evidence of the victim, is found reliable and establishes that the appellant removed his own clothes as well as the clothes of the minor victim. Such act of disrobing the minor, in the circumstances proved by the prosecution, cannot be viewed in isolation from the surrounding circumstances. Even in the absence of specific evidence of touching the private parts enumerated in the first limb of Section 7 of POCSO Act, the act of disrobing the child may constitute an ‘other act’ involving physical contact, provided the same is proved to have been committed with sexual intent. Thus, the mere absence of evidence of touching the private parts would not make the offence one under Section 12 of the POCSO Act, since Section 12 deals with sexual harassment as defined under Section 11 and is not a substitute for sexual assault under Section 7 of the POCSO Act.

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20 In the present case it is established that the appellant gagged the mouth of minor victim, dragged her to a field, removed her undergarment and also removed his own clothes. The forcible taking of a child of such tender age to an isolated place, gagging her mouth, removing her undergarment and thereafter removing his own clothes constitute a chain of conduct from which the requisite sexual intent and physical contact can legitimately be inferred. The act of removing the undergarment of the child necessarily involve physical interaction and the surrounding circumstances furnishes the necessary factual basis for determining sexual intent.

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21 In view of the aforesaid, this court is of the considered opinion that the trial court has rightly convicted the appellant for the offence under Section 363 IPC and Section 8 of the POCSO Act and this court does not find any substance in the appeal filed by the appellant.

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22 Accordingly, the appeal fails and his hereby dismissed . The appellant is reported to be on bail. His bail bond is cancelled and sureties are discharged. He shall surrender himself within a period of four weeks from today before the trial court for serving the entire sentence as awarded by the trial court, failing which he shall be taken into custody by the trial court and be sent to jail.

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23 Registry is directed to transmit the trial court record along with copy of this judgment to the court concerned forthwith for information and necessary compliance.

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Sd/(Ravindra Kumar Agrawal) Judge

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inder

Ashok Das Mahant v. State of Chhattisgarh

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Ashok Das Mahant v. State of Chhattisgarh

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