“Deserves Some Reprieve”: Chhattisgarh High Court Reduces Sentence Of Man Convicted U/s. 377 IPC

The Court partly allowed a criminal Appeal, upholding the conviction of the accused under Section 377 of the IPC, but set aside the conviction by the Trial Court under Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

A Single Bench of Justice Rajani Dubey held, “This Court does not find any illegality or infirmity in convicting the appellant under Section 377 of IPC and the conviction of the appellant under this section is maintained while acquitting him under Section 4 of POCSO as the prosecution has utterly failed to prove the age of the victim below 18 years of age as discussed above in this judgment.”

Advocate TK Jha appeared for the Appellants, while PL Nand Kumari Kashyap represented the Respondents.

Brief Facts

The prosecution alleged that the accused committed an unnatural sexual act against the victim. It was alleged that the accused, who was watching pornographic film on his phone, forcefully laid the victim down, pulled down his pants, and inserted his penis into the victim's anus.

An FIR was registered against the accused, and a medical examination of the victim was conducted. The medical report indicated findings suggestive of sexual assault. The Trial Court, after considering the evidence, convicted the accused under Section 377 of the IPC and Section 4 of the POCSO Act.

Court’s Reasoning

The High Court remarked, “The defence has cross-examined these witnesses at length but has not been able to elicit anything in their crossexamination to discredit their testimony especially to the fact that the appellant has not committed intercourse with victim against the order of nature. The evidence of victim (PW-1) and Doctor (PW-6) inspire full confidence of this Court and the same is sufficient to hold the appellant guilty for commission of offence under Section 377.”

Regarding the age of the victim, the Bench explained that while a birth certificate is a strong proof of age which must be taken in to consideration, but “if there is delay of more than one year in issuing the birth certificate, the same shall be taken into consideration only after complying the provision of Sub section 3 of Section 13 of Chapter III of the Registration of Births and Deaths Act, 1969.”

Therefore, the Court held, “After considering the facts and circumstance of the case and the evidence with regard to the age of the victim, the finding of the learned trial Court to the effect that the victim on the date of incident was minor, is set aside and the appellant is acquitted from the charge under Section 4 of POCSO.”

The Court then took note of the submission by the accused that he had been behind bars since 2020 and had served more than four years in jail. The Bench also noted that the accused had “faced the mental agony all these years on account of criminal proceedings pending against him,” and therefore,” some sympathy may be taken and his sentence may be reduced to the period already undergone.”

“Considering the facts and circumstances of the case, overall evidence adduced by the prosecution, the mode and manner in which the incident had taken place, in my view, some reprieve in the matter of sentence deserves to be given to him,” the Bench held.

Consequently, the Court ordered, “In the result, the conviction of the appellant under Section 4 of POCSO is set aside but for the offence punishable under Section 377 of the IPC, he shall be required to undergo rigorous imprisonment for 07 years. The amount of fine for the offence under Section 377 of IPC as imposed by the learned trial Court will remain the same and in default of payment thereof, he shall be required to undergo six month’s rigorous imprisonment.”

Accordingly, the High Court partly allowed the Appeal.

Cause Title: Kundan Kumar v. State Of Chhattisgarh (Neutral Citation: 2025:CGHC:15162)

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