# Heera Kol v. State of U.P.& Ors

- **Citation:** (2025) 5 ILRA 822
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-02
- **Case number:** Criminal Appeal No. 1231 of 2023
- **Bench:** Saumitra Dayal Singh, Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/heera-kol-v-state-of-u-p-ors-53453
- **Pages:** 11

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Section 376(2)(i) & Section
5/6
of
POCSO
Act-Challenge
to
-
Conviction-Appellant was convicted for
allegedly committing penetrative sexual
assault on a 6 year old girl-The FIR and
eyewitness testimony did not mention
any
act
indicating
penetration-The
victim's statement u/s 164 Crpc lacked
clarity and consistency-medical evidence
/(PW-6) showed no injuries- A chance
witness (PW-7) could not identify the
victim in court-At trial the victim's
version
were
improved
and
not
corroborated
by
other
evidence-The
court held that the prosecution only
proved an act of "aggravated sexual
assault" u/s 7/9(m) of the POCSO Act,
not
penetrative
sexual
assault-The
sentence was accordingly reduced from
life imprisonment to 7 years rigorous
imprisonment u/s 10 of the POCSO ActSince the appellant had already spent
over 8 years in jail, the Court ordered his
immediate release, subject to payment
of fine.(Para 1 to 43)

The appeal is partly allowed. (E-6)

List of Cases cited:

Monu Vs St. of U.P. ,Neutral Citation No.-2025:
AHC-14721-DB

## Text

822 INDIAN LAW REPORTS ALLAHABAD SERIES
before the trial court and in this event, this
should be upto the wisdom of such trial
court to be aware of the error or omission,
if any, and if required, it may invoke suo
motu power to alter such charges.

25. In view of the aforesaid
submission and discussion, the order of
rejection cannot be approved to the extent
of considering ratio of the Judgment
rendered in the case of Bharat Parikh
(supra)
and
Ratilal
Bhanji
Mithani
(supra), but so far as the application filed
by applicant seeking alteration in the
charges as a matter of right, the same has
rightly been rejected by learned trial court.

26.
Resultantly,
the
Criminal
Appeal is hereby dismissed.

27. However, the learned trial court
can take the reference of the application to
the effect of correcting the defect, if any,
suo motu.

28. Interim order stands vacated.

29. Office shall communicate this
order to the trial court concerned forthwith.
----------
(2025) 5 ILRA 822
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.05.2025

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE SANDEEP JAIN, J.

Criminal Appeal No. 1231 of 2023

Heera Kol ...Appellant
Versus
State of U.P.& Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Anil Kumar Ojha, Sri Sanjeev Kumar
Asthana

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Section 376(2)(i) & Section
5/6
of
POCSO
Act-Challenge
to
-
Conviction-Appellant was convicted for
allegedly committing penetrative sexual
assault on a 6 year old girl-The FIR and
eyewitness testimony did not mention
any
act
indicating
penetration-The
victim's statement u/s 164 Crpc lacked
clarity and consistency-medical evidence
/(PW-6) showed no injuries- A chance
witness (PW-7) could not identify the
victim in court-At trial the victim's
version
were
improved
and
not
corroborated
by
other
evidence-The
court held that the prosecution only
proved an act of "aggravated sexual
assault" u/s 7/9(m) of the POCSO Act,
not
penetrative
sexual
assault-The
sentence was accordingly reduced from
life imprisonment to 7 years rigorous
imprisonment u/s 10 of the POCSO ActSince the appellant had already spent
over 8 years in jail, the Court ordered his
immediate release, subject to payment
of fine.(Para 1 to 43)

The appeal is partly allowed. (E-6)

List of Cases cited:

Monu Vs St. of U.P. ,Neutral Citation No.-2025:
AHC-14721-DB

(Delivered by Hon'ble Saumitra Dayal
Singh, J.
&
Hon'ble Sandeep Jain, J.)

1. Heard Anil Kumar Ojha, learned
counsel for the appellant, Sri Nagendra
Kumar Srivastava, learned A.G.A. for the
State and perused the records.
5 All. Heera Kol Vs. State of U.P. & Ors.
823
2. The present criminal appeal has
arisen from the judgment and order of
conviction dated 29.09.2022 passed by Ms.
Niharika Chauhan, learned Additional
District and Sessions Judge/Special Judge
(P.O.C.S.O.), Sonbhadra in Special Trial
(P.O.C.S.O. Act 2012) No.37 of 2017
(State Vs. Heera Kol), arising out of Case
Crime No.121 of 2017, under Section 376
(2)(i) I.P.C. and Section 5(m)/6 Protection
of Children from Sexual Offences Act,
2012 (hereinafter referred to as P.O.C.S.O.
Act), Police Station-Ghorawal, DistrictSonbhadra,
convicting
the
accused
appellant-Heera Kol and sentencing him to
undergo life imprisonment with the fine of
Rs.50,000/- for the offence under Section 6
P.O.C.S.O. Act and in default of payment
the appellant shall undergo additional
imprisonment for one year.

3. Prosecution story emerged on
the Written Report dated 02.07.2017
(exhibited as Ex.Ka.1 at the trial) lodged by
the first informant-'K' (P.W.-1 at the trial),
who is the maternal grand father of the
victim 'P'. In that it was narrated that on
01.07.2017 at about 6.00 p.m. his maternal
grand daughter 'P' (P.W.-2 at the trial) had
gone to a near by hand-pump, to fetch
water in a plastic vessel. There, the present
appellant was present from before. He took
off the underwear of 'P' and rubbed her
body parts inappropriately ("sehlane laga"),
while 'P' was working the hand pump. On
witnessing the same, children and other
persons present at that place of occurrence,
raised an alarm. At that, 'K' ran up to the
place of occurrence. The appellant tried to
flee but was apprehended by 'K'. The
police was informed on the Police Helpline
number 100. The F.I.R. was registered, the
next day, on 02.07.2017 at about 3.55 p.m.
It is exhibited as Ex.Ka.3 at the trial. 'P'
was
subjected
to
Medico
Legal
Examination (exhibited as Ex.Ka.7 at the
trial) conducted at 01.00 p.m. by Dr. Geeta
Jaiswar (P.W.-6 at the trial). She stated, no
injury whatsoever was noted by her, on 'P'.
After more than a month from the
occurrence, the statement of the victim was
recorded under Section 164 Cr.P.C. on
18.08.2017. It is exhibited as Ex.Ka.2 at the
trial. In that, she narrated that the appellant
had removed her underwear; flashed his
penis; spoke words expressing his intent to
commit "penetrative sexual assault" on 'P'
and, lifted her in his lap. On being further
questioned, she stated, the appellant had
flashed his penis at her. No other or further
statement was made by her, at that stage to
indicate commission of any act amounting
to "penetrative sexual assault", by the
appellant.

4.
Upon
completion
of
the
investigation,
the
Charge
Sheet
was
submitted on 19.08.2017. It is exhibited as
Ex.Ka.6 at the trial. On that the appellant
was put up for trial. Initially, two charges
were framed on 05.03.2018. Those read as
below:

 "प्रथमः- यह कि कदिॉि-01.07.2017 िो
िरीब 18 बजे बहद स्थाि-ग्राम पेढ़, थािा - घोरावल, कजला-
सोिर्द्र में आपिे वादी 'K' िी 6 विीया अवयस्ि िाकति/पीकडता
िे साथ अवांछिीय शारीररि संपिभ और अग्रकियाओं िे अग्रसरण
में उसिी चड्ढी उतारिर, उसिे अंिों िो सहलािर अपिे शरीर से
सर्ािर उसिी लज्जा र्ंि िरिे िे आशय से आपराकधि बल िा
प्रयोि िर उसिे साथ छेडछाड िी। ऐसा िरिे आपिे धारा 354
ि र्ारतीय दंड संकहता िे तहत दंडिीय अपराध किया है जो इस
न्यायालय िे प्रसंज्ञाि में है।

 कद्वतीयः- यह कि उपरोक्त कदिांि, समय व स्थाि पर
आपिे वादी िी 06 विीया अवयस्ि िाकति/पीकडता िी चड्ढ़ी
उतारिर, उसिे अंिों िो सहलािर अपिे शरीर से सर्ािर उसिी
लज्जा र्ंि िरिे िे आशय से आपराकधि बल िा प्रयोि िर उििे
साथ छेडछाड िर लैंकिि हमला िाररत किया। ऐसा िरिे आपिे
824 INDIAN LAW REPORTS ALLAHABAD SERIES
धारा-7 सहपकठत धारा-8 लैंकिि अपराधों से बालिों िा संरिण
अकधकियम िे तहत दंडिीय अपराध किया है जो इस न्यायालय िे
प्रसंज्ञाि में है।"

5. On 03.02.2020 (describing as
altered charges), two other charges were
framed. They read as below:

 "प्रथम- यह कि कदिोंि 01.07.2017 िो समय
िरीब 06:00 बजे सायं बहद स्थाि वादी मुिदमा िे मिाि िे
पास कस्थत हैण्डपम्प ग्राम पेढ़, अन्तिभत थािा घोरावल कजला
सोिर्द्र में जब वादी मुिदमा िी िाबाकलि िकतिी पीकडता उम्र
िरीब 06 विभ पािी लेिे ियी थी तो आप उसे पिड िर अपिा
पेशाब िा रास्ता उसिे पेशाब िे रास्ते पर रिडिे लिे थे। आप िा
यह िृत्य धारा-376 (2) (i) र्ारतीय दण्ड संकहता िे अन्तिभत
दण्डिीय अपराध है जो इस न्यायालय िे प्रसंज्ञाि में है।
कद्वतीय- यह कि उपरोक्त कदिॉि, समय व स्थाि पर आपिे वादी
मुिदमा िी िाबाकलि िकतिी पीकडता उम्र िरीब 06 विभ िे साथ
प्रवेशि लैंकिि हमला िाररत किया। आपिा यह िृत्य धारा-5
(m) िुरुतर प्रवेशि लैंकिि हमला िे अन्तिभत पररर्ाकित है तथा
धारा-6 लैंकिि अपराधों से बालिों िा संरिण अकधकियम,
2012 िे तहत दण्डिीय अपराध है जो इस न्यायालय िे प्रसंज्ञाि
में है।"

6. At the trial, besides the above
documentary evidence, prosecution led oral
evidence of seven witnesses. 'K'-the first
informant was examined as P.W.1. During
his examination-in-chief, he proved, when
he reached the place of occurrence, he saw
the appellant had removed the underwear
of 'P' and had in appropriately embraced
her (in that state of undress) and was
rubbing her body parts, inappropriately. On
being scolded by 'K', the appellant let her
go. Then 'K' apprehended the appellant
and called the police. He also proved the
fact that the FIR was lodged, the next day.
As to the age of 'P', he proved, she was
between 6-7 years of age. He further
proved that the appellant was arrested by
the police from the spot. He further proved,
he reached first, to help 'P' and his wife
'B' reached later.

7. Next, the victim 'P' was
examined
as
P.W.-2.
During
her
examination-in-chief,
she
proved
her
statement recorded under Section 164
Cr.P.C. It is exhibited as Ex.Ka.2 at the
trial. She also proved that the appellant had
removed her underwear and rubbed his
penis on her private part and that he made
her sit on his leg ('godey'). She did not
make any further or other allegation of
actual
"penetrative
sexual
assault",
committed or attempted. She did not
describe any act of penetration or insertion
caused or attempted by the appellant or of
touch caused to her private part, with his
mouth, by the appellant. In fact, she
specifically denied any other act suffered
by her.

8. Thereafter, the maternal grandmother of the victim, namely, 'B' was
examined as P.W.-3 at the trial. She also
proved the occurrence as narrated by 'P'.
As to her presence, she disclosed, she
reached along with her husband. At that
time, she found that the appellant was
holding 'P' tightly and was touching her
inappropriately. At that, 'K' slapped the
appellant. He fled. The police arrived on a
phone call made by villagers. Thereafter,
the appellant was arrested.

9. Next, S.I. Abdul Kalam was
examined as P.W.-4. He proved the initial
G.D. entries and preparation of check FIR.
Next, I.O. Shesh Kumar Sharma was
examined as P.W.-5. He proved the
investigation.

10. Next, Dr. Geeta Jaiswar was
examined as P.W.-6. She proved the age of
'P' six years on the date of occurrence. She
5 All. Heera Kol Vs. State of U.P. & Ors.
825
further proved that no external or internal
injury was noted by her on the body of 'P'.
She further proved that the hymen of 'P'
was intact and there was no bleeding or
mark of any injury noted on her body. She
proved the Medico Legal Examination
report, exhibited as Ex.Ka.7. During her
cross-examination, she stated, though the
mother of 'P' had claimed (to her) that 'P'
had suffered "penetrative sexual assault",
the said witness (P.W.-6) did not find any
mark of any injury on 'P', in that regard.

11. Next, 'C' a chance witness was
examined as P.W.-7. He claimed at the
time of the occurrence, the appellant tightly
held 'P'. Thereafter, he left. During his
cross-examination, he could not prove that
he had seen the occurrence inasmuch as he
failed to recognise 'P' as the victim.

12. On closure of the prosecution
evidence, the statement of appellant was
recorded under Section 313 Cr.P.C.

13.
Thereafter,
one
defence
witness, namely, 'Z' was examined as
D.W.-1. During her examination-in-chief,
she tried to prove pre-existing disputes
between the parties. Yet she admitted bad
relations between herself and 'K', as well.
During her cross-examination, she stated,
her house was at some distance from the
place of occurrence and there existed other
houses, in between.

14. Submission of learned counsel
for the appellant is, no occurrence had been
caused. The parties were in dispute from
before. Only for reason of other disputes, a
complete false and malicious allegation was
levelled against the appellant. Second, it has
been submitted, in any case, no evidence was
led to establish the occurrence or actual
attempt to cause "penetrative sexual assault".
The ocular evidence is not consistent even as
to commission of "sexual assault". Thus, it
has been argued, the learned court below has
completely erred in convicting the appellant
under Section 376 (2)(i) I.P.C. read with
Section 5(m)/6 P.O.C.S.O. Act, and has
further erred in awarding maximum sentence
of life imprisonment to the appellant. At
most, a case of "sexual harassment", was
alleged (on facts).

15. On the other hand, learned
A.G.A. would submit, it was duly proven that
the appellant had undressed the victim,
removed
her
undergarment
and
had
inappropriately touched her private part,
including with his penis as also uttered words
to the victim that expressed his intent to cause
"penetrative sexual assault". To the extent,
the prosecution evidence is wholly consistent
(as to that occurrence), the learned court
below has rightly convicted the appellant for
the offence under Section 376 (2)(i) I.P.C.
read with Section 5(m)/6 P.O.C.S.O. Act.
The victim being an innocent minor about 56 years of age, the learned court below has
rightly awarded maximum sentence of life
imprisonment to the appellant.

16. Having heard learned counsel for
the parties and having perused the record,
Section 375 I.P.C. as it stood at the statute
book, at the relevant time read as below:

 "375. Rape.- A man is said to
commit "rape" if he

 (a) penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so
with him or any other person; or

 (b) inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
826 INDIAN LAW REPORTS ALLAHABAD SERIES
of a woman or makes her to do so with him
or any other person; or

 (c) manipulates any part of the
body of a woman so as to cause penetration
into the vagina, urethra, anus or any part
of body of such woman or makes her to do
so with him or any other person; or

 (d) applies his mouth to the
vagina, anus, urethra of a woman or makes
her to do so with him or any other person,
under the circumstances falling under any
of the following seven descriptions:-

 First.-Against her will.

 Secondly. Without her consent.

 Thirdly. With her consent, when
her consent has been obtained by putting
her or any person in whom she is
interested, in fear of death or of hurt.

 Fourthly. With her consent, when
the man knows that he is not her husband
and that her consent is given because she
believes that he is another man to whom
she is or believes herself to be lawfully
married.

 Fifthly. With her consent when,
at the time of giving such consent, by
reason of unsoundness of mind or
intoxication or the administration by him
personally or through another of any
stupefying or unwholesome substance,
she is unable to understand the nature
and consequences of that to which she
gives consent."

17. Section 376 I.P.C. as it existed
on the statute book, at the relevant time
read as below:

 "376. Punishment for rape-(1)
Whoever, except in the cases provided for
in sub-section (2), commits rape, shall be
punished with rigorous imprisonment of
either description for a term which [shall
not be less than seven years, but which may
extend to imprisonment for life, and shall
also be liable to fine].

 (2) Whoever,-

 (a)
being
a
police
officer,
commits rape-

 (i) within the limits of the police
station to which such police officer is
appointed; or

 (ii) in the premises of any station
house; or

 (iii) on a woman in such police
officer's custody or in the custody of a
police officer subordinate to such police
officer; or

 (b) being a public servant,
commits rape on a woman in such public
servant's custody or in the custody of a
public servant subordinate to such public
servant; or

 (c) being a member of the armed
forces deployed in area by the Central or a
State Government commits rape in such
area; or

 (d) being on the management or
on the staff of a jail, remand home or other
place of custody established by or under
any law for the time being in force or of a
women's or children's institution, commits
rape on any inmate of such jail, remand
home, place or institution; or
5 All. Heera Kol Vs. State of U.P. & Ors.
827
 (e) being on the management or
on the staff of a hospital, commits rape on
a woman in that hospital; or

 (f) being a relative, guardian or
teacher of, or a person in a position of trust
or authority towards the woman, commits
rape on such woman; or

 (g)
commits
rape
during
communal or sectarian violence; or

 (h) commits rape on a woman
knowing her to be pregnant; or

 (i) commits rape on a woman
when she is under sixteen years of age;
or

 (j) commits rape, on a woman
incapable of giving consent; or

 (k) being in a position of control
or dominance over a woman, commits rape
on such woman; or

 (l) commits rape on a woman
suffering
from
mental
or
physical
disability; or

 (m) while committing rape causes
grievous bodily harm or maims or
disfigures or endangers the life of a
woman; or

 (n) commits rape repeatedly on
the same woman, shall be punished with
rigorous imprisonment for a term which
shall not be less than ten years, but
which may extend to imprisonment for
life, which shall mean imprisonment for
the remainder of that person's on's
natural life, and shall also be liable to
fine."

18. Section 2(a), 2(b), 2(f), 2(i) and
2 (j) of the P.O.C.S.O. Act as it then
existed read as below:

 (a)
"aggravated
penetrative
sexual assault" has the same meaning as
assigned to it in section 5;

 (b) "aggravated sexual assault"
has the same meaning as assigned to it in
section 9;

 (f) "penetrative sexual assault"
has the same meaning as assigned to it in
section 3;

 (i) "sexual assault" has the same
meaning as assigned to it in section 7;
 (j) "Sexual harassment" has the
same meaning as assigned to it in section
11;

19. Penetrative sexual assault as
defined under Section 3 of the P.O.C.S.O.
Act, reads as below:

 "3. Penetrative sexual assault. -
A person is said to commit "penetrative
sexual assault" if-

 (a) he penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a child or makes the child to do so
with him or any other person; or

 (b) he inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
of the child or makes the child to do so with
him or any other person; or

 (c) he manipulates any part of the
body of the child so as to cause penetration
into the vagina, urethra, anus or any part
828 INDIAN LAW REPORTS ALLAHABAD SERIES
of body of the child or makes the child to
do so with him or any other person; or

 (d) he applies his mouth to the
penis, vagina, anus, urethra of the child or
makes the child to do so to such person or
any other person."
 (emphasis supplied)

20. Plainly, Section 3 of the
P.O.C.S.O. Act is pari materia to Section
375 I.P.C. Section 5(m) of P.O.C.S.O. Act
defines of "aggravated penetrative sexual
assault" as below:

 "5.
Aggravated
penetrative
sexual assault;

 (m) whoever commits penetrative
sexual assault on a child below twelve
years;"

21. At the same time, "sexual
assault" has been defined under Section 7
of P.O.C.S.O. Act. It reads as below:

 "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
other act with sexual intent which
involves physical contact
without
penetration is said to commit sexual
assault."
 (emphasis supplied)

22. Parallelly, Section 9 (m) of the
P.O.C.S.O. Act reads as below:

 "9. Aggravated sexual assault

 (m) whoever commits sexual
assault on a child below twelve years;"
23. At the same time, "sexual
harassment" has been defined under
Section 11 of P.O.C.S.O. Act. It reads as
below:

 " Section 11. Sexual harassment:

 A person is said to commit sexual
harassment upon a child when such person
with sexual intent,--

 (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

 (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

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

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

 (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

 (vi)
entices
a
child
for
pornographic
purposes
or
gives
gratification
therefore."
(emphasis
supplied)

24. The above leads us to the
conclusion that POCSO Act defined
5 All. Heera Kol Vs. State of U.P. & Ors.
829
different types of sexual offences and it
grades them differently on the scale of
punishment contemplated. That may be
summarised as below:

SEC
TIO
N
OFF
ENC
E

PUNISHMENT
A 15
Stora
ge of
porno
graph
ic
mater
ial
invol
ving
child
a.Storage/Possession:
First
conviction-not
less than INR 5,000.
Subsequent-not
less
than
INR
10,000.
b.Transmitting/propag
ating/displaying/distrib
uting-imprisonment
upto
3
years.
c.Using
such
pornographic material
for
commercial
purpose:
First
convictionimprisonment for 3 to
5
years.
Subsequentimprisonment for 5 to
7 years.
B 12
Sexu
al
haras
sment

Imprisonment upto 3
years.

C 8
Sexu
al
Assa
ult

Imprisonment for 3 to
5
years.

D 10
Aggr
avate
d
sexua
l
assau
lt
Imprisonment for 5 to
7
years.

E 14
Use
of
child
for
porno
graph
ic
purpo
se

First
conviction:
Imprisonment for not
less
than
5
years.
Subsequent:
Imprisonment for not
less
than
7
years.

F 4
Penet
rative
sexua
l
assau
lt
a. Victim's age is 16
years or above: 10
years to imprisonment
for
life.
b. Victim's age is
below 16 years: 20
years.
G 6
Aggr
avate
d
penet
rative
sexua
l
assau
lt
Rigorous
imprisonment for 20
years to imprisonment
for
life.

25. Thus, in the first place the
legislature has treated all sexual offences
committed against children to be special
offences warranting heavier penalties than
contemplated
under
the
general
law
(I.P.C.). At the same time, differentiation
has been made between different types of
sexual
offences
when
committed
on
children, for the purposes of award of
punishment. Unless a more serious offence
(on the gradation of the punishment
contemplated) is found proven, punishment
heavier than that prescribed by the Act may
not be awarded.

26. In the facts proven by the
prosecution, we note that the occurrence is
830 INDIAN LAW REPORTS ALLAHABAD SERIES
one involving "sexual assault". To that
extent allegations that emerged on a plain
reading of the FIR, disclosed that the
appellant had removed the underwear of
'P', rubbed her body, inappropriately with
his hands ('sehlane laga'). At the stage of
her statement being recorded under Section
164 Cr.P.C., that too after more than one
and half month of the occurrence, she
narrated that the appellant had removed her
underwear, flashed his penis at her and
spoken words that may be read as intent to
commit penetrative sexual assault on 'P'
and of having lifted her in his lap. Still
later, at the trial, further improvement was
offered by 'P'. At that stage, though she
proved the fact of her earlier statement
recorded under Section 164 Cr.P.C., she
now (for the first time) described that the
appellant had rubbed his penis on her
private part and had made her sit on his leg
after removing her undergarment. At the
same time, she maintained that no other
act/offence was committed on her.

27. The grand father of 'P',
namely, 'K' (P.W.-1) stated, he saw the
occurrence as he reached to help 'P'. He
proved that he had seen the appellant
remove the underwear of 'P' and touch her
body parts with his bare hands. He also
proved that he had seen the appellant
improperly embrace 'P', in that state of
undress. Yet he did not prove that the
appellant had rubbed his penis on the
private part of 'P' or that he had flashed his
penis at her or that he had uttered any word
expressing
his
intent
to
commit
"penetrative sexual assault", on her.

28. Similar facts were proved by
'B' P.W.-3. At the same time, she admitted
that she reached the place of occurrence
after her husband 'K' had reached there.
Thus, she may not have seen the
occurrence, but she narrated the same as
was proved by 'K' husband-P.W.-1 and the
victim 'P' (P.W.-2), her grand-daughter.

29. The ocular evidence of 'P' and
'K'
(both
eye
witness)
is
partially
consistent to the FIR narration. Thereby,
the prosecution story that the appellant had
caused the occurrence, wherein he first
removed the underwear of the victim 'P',
thereafter, inappropriately touched and
embraced her, in that state of undress, was
duly proven.

30. As to whether the appellant
flashed his penis at 'P' and rubbed his
penis on her private part and uttered any
word to indicate his intent, to commit
"penetrative
sexual
assault",
the
prosecution evidence is inconsistent. In the
first place, neither the FIR (lodged by
'K'/an eye witness and grand father of 'P')
narrates, nor his testimony attempts to
prove those occurrences. He had already
seen the appellant commit the offence as
narrated in the FIR, yet he did not allege
any fact that may amount to "penetrative
sexual assault". To that extent, the FIR is
non-corroborative. Second, in her statement
recorded under Section 164 Cr.P.C. also,
'P' did not make any allegation of the
appellant having rubbed his penis on her
private part. Conversely, in her statement
made at the trial, she did not make any
statement that the appellant spoke any word
expressing
his
intent
to
commit
"penetrative
sexual
assault".
On
the
contrary, she specifically stated "aur kuch
nahi kiya" i.e. the appellant did not commit
any further act.

31. We are mindful that the story
as
narrated
by
the
prosecution
has
improved and varied from the point of the
FIR being lodged on 02.07.2017 i.e. one
5 All. Heera Kol Vs. State of U.P. & Ors.
831
day after the occurrence to the statement
recorded on 18.08.2017 which would be
more than one and half month from the
occurrence, to the statement recorded at the
trial. Vast improvements and variations
were made to the prosecution story. Those
are not proved through the eye witness
account offered by 'K' and also not
supported by any corroborative evidence in
the shape of medical opinion etc. Clearly,
no evidence of "penetrative sexual assault"
was led. Further reasonable doubt exists if
any attempt was made to commit such
"penetrative sexual assault."

32. As to what may constitute a
"penetrative sexual assault", as noted
above, the statutory definition is crystal
clear. It would involve penetration either of
the vagina or mouth or urethra or other
body part of a victim with penis or
insertion of such body part of the victim
with any object or any other body part of
the offender or the victim or application of
mouth of the offender to the private part of
a victim child. No other or further
description exists under the Act as may
allow the Court to adjudge "penetrative
sexual
assault"
had
been
made
or
attempted. Plainly, in the context of
criminal offence, only that definition of
"penetrative sexual assault" may be applied
by Courts as may exist in the statute book,
here P.O.C.S.O. Act.

33. At the same time, "sexual
assault" is also clearly defined under
Section P.O.C.S.O. Act. It may involve
touching the private part of a child with
sexual intent or doing any other act with
sexual intent which may involve physical
contact, short of penetration/insertion.

34. On the cumulative effect of the
proven facts, it is established beyond
reasonable doubt that the appellant had
tightly held 'P' after removing her
undergarment
and
had
touched
her
inappropriately. The "sexual intent" is
clearly proved by further facts proven
"without penetration". To the extent 'P'
was below age of 12 years, above was an
act of "aggravated sexual assault", as
defined under Section 9(m) P.O.C.S.O.
Act. In these proven facts, the occurrence
had travelled far beyond the limit of
"sexual harassment", as defined under
Section 11 of P.O.C.S.O. Act. That may
have been the case if the appellant had
merely spoken words with or without
flashing his penis (under Section 11 (i) and
(ii) of P.O.C.S.O. Act).

35. As to other facts whether the
appellant had rubbed his penis on the
private part of 'P' or had spoken any word
as may have established his intent to
commit "penetrative sexual assault" on 'P',
doubts persists, as the FIR allegations do
not corroborate such occurrence; 'K' an
eye-witness and close relative of 'P' did not
make such allegation and the statement of
'P' on that count are inconsistent and suffer
from improvements.

36.
We
also
note,
besides
"penetrative sexual assault" not proven
through ocular evidence, in the present
case, there is also no medical evidence to
corroborate such an occurrence.

37. We are unable to sustain the
order passed by the learned court below
holding that the appellant had committed
"penetrative sexual assault". As despicable
an occurrence as it may be, the morality
and ethics may not prompt the Court to
either convict any offender for any offence
heavier than proven and, therefore, those
considerations may not allow the Courts to
832 INDIAN LAW REPORTS ALLAHABAD SERIES
award
sentence
heavier
than
those
prescribed by the law. 'P' being less than
12 years of age, she had suffered act of
"aggravated
sexual
assault"
but
not
"aggravated penetrative sexual assault".
Therefore, maximum sentence of seven
years contemplated under Section 10 of
P.O.C.S.O. Act, would suffice.

38. Similar view had been taken
by a co-ordinate bench in Monu Vs.
State of U.P., Neutral Citation No.-
2025:AHC:14721-DB to which one of us
(Saumitra Dayal Singh,J.) was a member.

39. Accordingly,
the
offence
under Section 376 (2)(i) I.P.C. and
Section 5(m)/6 P.O.C.S.O. Act is not
found proven. At the same time, for the
reasons noted above, offence under
Section 7 read with 9 (m) P.O.C.S.O. Act
is found proven. The impugned order
passed by the learned court below, is
modified accordingly.

40. In view of the above, the
order passed by the learned court below
is further modified. Against life sentence
awarded, maximum sentence of seven
years is awarded to the appellant, under
Section 10 P.O.C.S.O. Act.

41. At this stage, we note, as per
the Custody Certificate the appellant has
remained confined for eight years, one
month and thirty days as on 02.05.2025.
As such, he has remained confined for
more
than
the
maximum
sentence
awarded. At present, we note that the
appellant is in jail. He may be released
forthwith. In view of that consideration,
the fine is maintained. In case fine is not
deposited within the aforesaid period, the
sentence of imprisonment shall stand
extended by one year. Obviously, in that
event, the appellant would be entitled to
benefit of sentence undergone.

42. To the extent, it could not be
proven beyond reasonable doubt that the
appellant
had
attempted
to
commit
"penetrative sexual assault", we do not
find it a fit case to convict or punish the
appellant under Section 18 of P.O.C.S.O.
Act.

43. Accordingly, the appeal is
partly allowed.

44. Let the trial court record
along with a copy of this order be
transmitted
to
the
court
concerned
through Registrar (Compliance) forthwith
and a copy of this order may also be sent
to the C.J.M., concerned.

45.
C.J.M.,
concerned
shall
submit his compliance report in this
regard to this Court.

46. A copy of this order be also
sent to the Jail Authorities, concerned for
necessary compliance.
----------
(2025) 5 ILRA 832
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.05.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE JITENDRA KUMAR SINHA, J.

Criminal Appeal No. 1806 of 1991

Chhalla @ Bhagwan Dass ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ajay Kumar Pandey, Sri Satish Trivedi