1 - Lala @ Nilesh Pandey S/o Prabha Shankar Pandey, Aged About 24 Years v. 1 - State Of Chhattisgarh, Through The Police Station Chhal, District Raigarh Chhattisgarh
Case Details
1 2025:CGHC:3793 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 331 of 2021 1 - Lala @ Nilesh Pandey S/o Prabha Shankar Pandey, Aged About 24 Years R/o Aspatal - Paara, Chhal, Police Station Chhal, District - Raigarh Chhattisgarh ...Appellant(s) versus 1 - State Of Chhattisgarh, Through The Police Station Chhal, District Raigarh Chhattisgarh. ... Respondent(s) For Appellant(s) : Shri Siddarth Dubey, Advocate For Respondent/State : Ms. Monika Thakur, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 21/01/2025 This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) has been filed by the appellant being aggrieved by the impugned judgment dated 08.01.2021 passed in Special Criminal (POCSO) Case No. 06/2019 by the Additional Sessions Judge Gharghoda, District Raigarh by which the appellant was convicted for the offence punishable under Section 6 of the 2 POCSO Act and sentenced to undergo Rigorous Imprisonment for 10 year and to pay fine of Rs. 2,000/-, in default of payment of fine to further undergo RI for 30 days. 2. Prosecution case in brief is that on 30.01.2019 at about 6.00 p.m. the victim, a minor aged about 5 years (PW-3) was playing with his friends in the verandah of his house, at that point of time, appellant Lala @ Neelesh Pandey took the victim towards the jungle to a secluded place and subjected to carnal intercourse with the victim resulting to bleeding from his anus and thereafter he left the victim outside his house and left. Victim narrated about the incident to his mother (PW-5) and when his father came at about 6.30 pm., they informed about the incident in the vicinity ie. to the villagers and took him to the hospital at village Chhal from where he was taken to Kharsia hospital. The written report Ex.P-1 was lodged at police station Kharsiya against the
Facts
applicant and FIR (Ex.P-2) was registered. offence punishable under Sections 377 IPC and 4,6 of POCSO Act, 2012. After giving notice Ex.P-5, Victim was medically examined at Civil Hospital Kharsiya where Dr. Sourabh Agrawal (PW-7) had examined the victim and opined that the injuries sustained by the victim were caused on account of sexual assault. On the basis of the said report, FIR EX.P-3 was registered against the appellant in Crime No. 24/2019. Spot map was prepared and the statements of the witnesses were recorded and the appellant was arrested. Appellant was also medically examined and the undergarments of the appellant were seized vide Ex.P-8. The school admission and discharge register was seized vide Ex.P-9 and the blood stained jeans, underwear and T-shirt of the victim were seized vide Ex.P-12. The statement of the victim was recorded under Section 164 3 Cr.P.C. and after completion of investigation, the charge sheet was filed. The appellant was charged as aforesaid in which he denied the charges and claimed to be tried. 3. Prosecution in order to prove its case, examined as many as 11 witnesses. Statement of the accused/appellant under Section 313 Cr.P.C. was recorded in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, trial Court has convicted and sentenced the accused/appellant for the offence as mentioned above. Hence, this appeal. 5.
Legal Reasoning
growth of the victim. There is no dispute that the age of the victim was less than twelve years at the time of the incident. Therefore, we have no option but to set aside the impugned judgment of the High Court and restore the judgment of the Trial Court.
Arguments
Contention of the learned counsel for the appellant is that it was erroneous to hold the appellant guilty. The contention raised by the counsel for the appellant is that the verdict of the learned Trial Court is flawed and that there has been a complete misappreciation of evidence and that the allegations levelled against the appellant have not been established beyond a reasonable doubt and that the complicity of the appellant in relation to the alleged crime has not been established nor is the identity of the accused/convict i.e. the appellant herein as being the offender in the instant case in relation to the commission of the offence punishable under the Indian Penal Code, 1860 and the Protection of Children From Sexual Offences Act, 2012, been established. It has also been submitted on behalf of the appellant that the reliance placed on a seven years old child’s testimony is inappropriate in the instant case and the factum that the appellant herein has been falsely implicated. According to him, the appellant is a young aged person and it is his first offence, hence, the appellant is entitled for acquittal. 4 6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the conviction and sentence imposed by the trial Court is just and proper and no interference with the same is called for. The statement under 164 of the Cr.P.C., 1973 of the minor child is in consonance with his statement in Court which is also in consonance with all material particulars in the complaint lodged vide Ex.P-1 in relation to the incident against the appellant herein. As has been rightly held by the learned Trial Court, there is no reason to disbelieve the prosecution version merely because the victim (PW-3) i.e. the minor child had narrated the incident of sexual assault on him. 7. Heard counsel for the parties and perused the material available on record. 8. Perusal of the record reveals that informant and the victim has supported the prosecution story and the evidence of prosecution witnesses are cogent, trustworthy, credible and probable, hence, finding with regard to conviction is confirmed. The proved facts of the case are that the appellant was subjected to carnal intercourse with the victim aged about 7 years and he started bleeding. Section 6 of the Act is quoted herein below for ready reference: Section 6 :Punishment for aggravated penetrative sexual assault.-- (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. (2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet 5 the medical expenses and rehabilitation of such victim.] 9. In the present case, the victim boy (PW-3) is the most important witness. The case of the prosecution revolves around the testimony of the victim. The trial court after analysis of the evidence of the victim, has recorded a finding that it was trustworthy and reliable. In this appeal, the learned counsel for the appellant has assailed the evidence of the victim on multiple grounds. In this backdrop, it is necessary to scrutinize and re-appreciate the evidence of the victim. 10. The victim (PW-3), as per the case of the prosecution, was subjected to carnal intercourse. It, therefore, goes without saying that the injuries sustained by the victim to his anus have not been seriously disputed. The victim boy, who at the time of his evidence, was 7 years old, has placed on record the first hand account of the incident. He has stated that on 29.01.2019 at 6.00 pm, the incident had occurred. He has stated that when he was playing outside his house, the appellant came there and took him towards the jungle and subjected him to carnal intercourse. He has stated that the appellant thereafter, overpowered him and removed his pants and his own pants, as well and committed carnal intercourse with him. He has further stated that thereafter the accused left him near his house. He narrated the incident to his mother (PW-5) and when his father (PW-5) came it was narrated to him and it was further informed to the villagers of the nearby vicinity. The victim was taken for treatment to hospital Chhal from where he was taken to hospital at Kharsiya. The matter was reported at police station vide Ex.P-1 and Crime under Section 377 IPC and Section 4 & 6 of the 6 POCSO was registered against the appellant after lodging of the FIR Ex.P-2. Victim was medically examined after giving notice Ex.P-5 by Dr. Sourabh Agrawal (PW-7), who had opined that due to sexual assault there were multiple lacerations in anal canal and can be caused as alleged. The account of the incident placed on record in his examination-in-chief is consistent with the facts recorded in the report lodged by his father (PW-5). The report, in fact, contains the account of the incident narrated to the informant by the victim. There is consistency in his evidence and the facts recorded in the report. 11. Perusal of his cross-examination would show that he has successfully withstood the searching and grueling cross-examination. His cross-examination would show that he has, in fact, reiterated the case deposed by him in his examination-in-chief. He has denied the suggestions put to him consistent with the defence of the appellant. 12. Perusal of his cross-examination would show that he has not given any admission to suggest that he was tutored. Similarly, he has not given any admission of significance to cause dent to the statement made in his examination-in-chief. The victim had no reason to falsely implicate the appellant. The appellant has failed to probabilize his defence of enmity with the father of the victim. The appellant, at the time of the incident, was 22 years old. The appellant took advantage of the tender age of the victim and overpowered him. Perusal of his evidence in entirety shows that his evidence is credible and trustworthy. It is necessary to state that if the victim had been tutored or made to narrate the imaginary incident, then he would have been caught in searching cross-examination of the defence advocate. A boy of tender age is 7 bound to commit a mistake, if he is tutored or the narration of the incident is on the basis of sheer imagination. The evidence of the victim is sufficient to conclude that he was subjected to carnal intercourse. 13. The evidence of the Medical Officer (PW7) Dr. Sourabh Agrawal is the most vital piece of evidence to lend an assurance to the overall case of the prosecution and the testimony of the victim. The victim was medically examined on 29.01.2019 and found that due to sexual assault there were multiple lacerations in anal canal and can be caused as alleged. He has stated that the injuries were caused within 24 hours. The doctor has clearly opined that it was a case of carnal intercourse with the victim. He has stated that such type of injuries can be possible in unnatural sexual intercourse. On these aspects, the Medical Officer was cross-examined. The Doctor has denied the suggestion that anal injuries, as mentioned in the medical report of the victim, could be caused, if a person falls on a stump or stone while playing. The medical certificate of the victim is at Ex.P-25. The history of the assault was narrated by the victim to the doctor. The victim has categorically stated while narrating the history of assault that the appellant had committed carnal intercourse with him and after this incident, he came to the house and narrated the incident to his mother. The doctor has given a candid opinion on the basis of his findings of the examination of the victim and there is no reason to discard this evidence. The doctor (PW-7) is an independent witness and he had no reason to give false report. The evidence of the Doctor is the most important corroborative piece of evidence. The testimony of the victim has been fully corroborated by the evidence of the Medical Officer (PW-7). 8 14. It is to be noted that the conviction in such a case can be based on the sole testimony of the victim of a crime. There is no need of any independent corroboration. The victim of such a crime is equated with an injured witness. The victim cannot be equated with an accomplice. The corroboration in material particulars, therefore, cannot be insisted. The Court has to see the quality of the evidence and not the quantity. In such a crime, the independent witness is seldom available. The victim has stated that the appellant took him to a secluded place ie. jungle and committed the offence. 15. The conduct of the victim was natural. After occurrence of the incident, he went to the house and narrated the incident to his mother,father and the villagers in the nearby vicinity. The conduct on the part of his parents (PW-4 and 5) is also consistent. Their evidence corroborated the version of the victim. 16. The Court has to see the quality of the evidence and not the quantity of the evidence. The evidence adduced by the prosecution is credible and trustworthy. The evidence has been corroborated by the medical evidence. On the basis of this evidence, the prosecution has proved the charge against the accused/appellant. 17. It has been held by the Apex Court in the matter of State of U.P. Vs. Sonu Kushwaha in Cr.A. No. 1633 of 2023 vide its order dated 5.07.2023 wherein it has been been held as under: 9. Considering the finding recorded in paragraph 16 of the impugned judgment, obviously in this case, the respondent has committed an offence of aggravated penetrative sexual assault as he has 9 committed penetrative sexual assault on a child below twelve years. Clause (m) of Section 5 is attracted in this case. 10. Section 6, as applicable before its substitution on 16th August 2019, read thus: commits “6. Punishment for aggravated penetrative sexual assault.—Whoever, aggravated penetrative sexual assault, 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 and shall also be liable to fine.” On the date of the commission of the offence, rigorous imprisonment for ten years was the minimum sentence prescribed for the offence of aggravated penetrative sexual assault. From 16th August 2019, the minimum sentence has been enhanced to twenty years. However, the amended provision will not apply to this case as the incident has taken place prior to 16th August 2019. XXXX XXXX XXXX 12. The POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8 and 10 of the POCSO Act for various categories of sexual assaults on children. Hence, Section 6, on its plain language, leaves no discretion to the Court and there is no option but to impose the minimum sentence as done by the Trial Court. When a penal provision uses the phraseology “shall not be less than….”, the Courts cannot do offence to the Section and impose a lesser sentence. The Courts are powerless to do that unless there is a specific statutory provision enabling the Court to impose a lesser sentence. However, we find no such provision in the POCSO Act. Therefore, notwithstanding the fact that the respondent may have moved ahead in life after undergoing the 10 sentence as modified by the High Court, there is no question of showing any leniency to him. Apart from the fact that the law provides for a minimum sentence, the crime committed by the respondent is very gruesome which calls for very stringent punishment. The impact of the obnoxious act on the mind of the victim child will be lifelong. The impact is bound to adversely affect the healthy
Decision
13. Accordingly, the appeal is allowed.” 18. It needs to be stated at this stage that the presumption under Section 29 of the POCSO Act would also trigger in this case against the accused. The evidence adduced by the prosecution is sufficient to prove the foundational facts viz-a-viz the case of the prosecution. The burden was on the accused to rebut the presumption, in view of the proof of the foundational facts. The appellant has not adduced any evidence to make good his defence on the basis of the available material on record to rebut the presumption. It is evident that the act committed by the appellant was highly deplorable. The appellant in order to satisfy his lust, took advantage of the tender age of the victim ravished a young boy of 5 years and committed carnal intercourse which is against the order of nature. This reflects on the mindset of the appellant. The appellant lured the victim with him. The accused misused his faith and trust in him. The accused overpowered the victim and subjected him to carnal intercourse. It was inhuman and diabolic act committed by the 11 appellant with the victim. The scar created on the mind of the victim would be everlasting. It would not be possible for him to erase it. He would have to carry this scar and trauma throughout his life. Children are the most vulnerable faction of the society and by reason of their tender age definitely are considered to be a pliable witnesses. There is no denying the fact that each child is different and possesses varied level of interests and intellect. In today's fast paced world, where children are exposed to media, one cannot doubt their cognition levels. Not every child possesses sufficient understanding of nature and the consequences of his acts, but the same cannot negate the intellect capabilities of those who can, very well grasp the state of affairs and maintain a vision of the same in their minds. 19. The maximum sentence awarded to the appellant is to suffer imprisonment for ten years for the offence punishable under Section 6 of the POCSO Act. The learned Trial Court vide the impugned judgment has rightly convicted the accused i.e. the appellant herein for the aforesaid offence in as much as of the Indian Penal Code, 1860, penalizes the commission of carnal intercourse against the order of nature whereas, the penetrative sexual assault described under 3(a) of the Protection of Children from Sexual Offences Act, 2012 referred to hereinabove only describes the modes through which such penetrative sexual assault can be made i.e. by penetrating his penis to any extent into the vagina, mouth, urethra or anus of a child or makes a child to do so with him or any other person, in as much as the nature of carnality punishable under of the Indian Penal Code, 1860, is not punishable under 3 of the Protection of Children from Sexual Offences Act, 2012, 12 which rather punishes all modes of commission of penetrative assault on the minor child. In the facts and circumstances discussed above, I conclude that there is no substance in this appeal. The impugned judgment is thus, upheld and it is held that there is no infirmity in the impugned judgment convicting the appellant for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012. The appeal deserves to be and is accordingly dismissed. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.03.28 11:10:59 +0530