The court ruled that under Section 42 of the POCSO Act, the appellant should only be punished under the provision providing the greater penalty, affirming the conviction but modifying the sentence.

Judgment :

(Sanjay K. Agrawal, J.)

1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the sole appellant-accused, is to the legality, validity and correctness of the judgment dated 28.08.2023 passed by the Additional Sessions Judge, F.T.C. (POCSO) Bemetara, District Bemetara, Chhattisgarh, in Sessions Trial No. 18/2023 by which the appellant herein has been convicted and sentenced as under:-

All the sentences are directed to run concurrently.

Prosecution story:-

2. The case of the prosecution as projected by the prosecution and accepted by the trial Court is that on 01.06.2023 at about 11:00 pm at village Piraiya, Police Station Chandnu, District Bemetara, Chhattisgarh, the appellant, who is the neighbour of the victim (PW-5), has outraged the modesty of the minor victim (PW-5), aged about 14 years on the date and time of offence and thereby committed the offences as mentioned in the opening paragraph of the judgment.

3. It is further case of the prosecution about the said incident the victim (PW-5) made a written complaint on 03.08.2023 vide Ex.P/8 and on that basis FIR was registered vide Ex.P/9 on the same day. Spot map and crime details form were prepared vide Exs.P/7 & P/11, respectively. As per the victim her date of birth is 05.04.2009 which was duly supported by dakhil khariz register, which was seized vide Ex.P/1, proved by Head Master Mohan Lal Dewangan (PW-3) and also supported from the statements of victim’s father (PW-1); victim’s grandmother (PW-2) and village Kotwar Chamrudas Manikpuri (PW-6). Wheels of investigation started running and the appellant was arrested.

4. After due investigation, appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellant/accused abjured his guilt and entered into defence.

5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 9 witnesses and exhibited 20 documents, whereas, the appellant in defence has examined 1 witness and exhibited 1 document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication.

6. 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 herein questioning the impugned judgment of conviction and order of sentence.

Submission of the Parties:-

7. Mr. R K. Pali, learned counsel for the appellant, would firstly submit that the prosecution has not been able to bring home the offence beyond reasonable doubt, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. He would further submit that by virtue of Section 42 of the POCSO Act (for brevity “the Act”) the sentence could have been awarded either for offence under Section 354A of the IPC or for offence under Section 8 of the Act which is greater in degree, but the trial Court has awarded the sentence for both the offences. He would