Nafr High Court
Case Details
1 2025:CGHC:41572 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 582 of 2023 Ajay Chauhan @ Babu @ Sonu S/o Rambharos Chauhan Aged About 28 Years R/o Ganesh Nagar, Bhadrapara, Police Station Balconagar, District Korba Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through Station House Officer, Police Station Balconagar, District Korba Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Chandrasen Chouhan, Advocate. For Respondent(s) : Ms. Ankita Shukla, Panel Lawyer. Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 18/08/2025 1. Learned State counsel submitted that, in compliance with this Court’s order dated 05.03.2025, notice has already been duly served upon the father of the victim (PW-1). Today, the matter is listed for hearing on I.A. No. 1 of 2023, which is an application for suspension of sentence and grant of bail. However, neither the victim nor the father of the victim (PW-1) has appeared in person, nor has any counsel entered appearance on their behalf to 2 contest the appeal. Thus, with the consent of learned counsel for the appellant, learned State counsel, and having regard to the period of detention already undergone by the appellant, the appeal is heard finally. 2.
Decision
Accordingly, I.A. No.01 of 2023 stands disposed of. 3. This appeals is directed against the judgment of conviction and order of sentence dated 16.12.2022 passed by the Additional Sessions Judge, FTSC (POSCO) Korba, District – Korba (C.G.) in Special Case (POSCO) No.21/2022, whereby the appellant has been convicted and sentenced in following manner :- CONVICTION SENTENCE Under Section 354 of the RI for 5 years and fine of Rs.500/-, Indian Penal Code in default of payment of fine to further undergo RI for 6 months. Under Section 10 of the RI for 7 years and fine of Rs.500/-, Protection of Children from in default of payment of fine to Sexual Offences Act further undergo RI for 6 months. (POCSO Act), 2012 (All the sentences were directed to be run concurrently) 4. Case of the prosecution, in brief, is that the complainant/father of the victim (PW-1) lodged a written complaint (Ex. P-1) at Police Station Balco Nagar on 03.03.2022, stating that his daughter/victim (PW-2) had gone on 02.03.2022 along with her friend Mansi Mahant (PW-3) to purchase articles from Ashok General Store. While returning from the shop, the accused, with 3 the intention of outraging the modesty of the victim, caught hold of her from the front and did not let her go. When Mansi intervened, the accused opened the zip of his pant, uttered that he would commit a wrongful act, and further threatened that he would abduct them, while also hurling obscene abuses. On this basis, a First Information Report (Ex. P-2) was registered against the accused at Police Station Balco Nagar for offences punishable under Sections 354, 354-A, 323, 294, 506 of the Indian Penal Code, vide Crime No. 113/2022. The investigation was conducted by Assistant Sub-Inspector Neelam Kerketta (PW-4), who sent the victim for medical examination to District Hospital, Korba through requisition (Ex. P-6). As per the statement of the complainant/father, a site map (Ex. P-3) was prepared. The original birth certificate of the victim was seized vide seizure memo (Ex. P-4) and its photocopy was taken on record as Article A-01, whereas the original was returned to the father of the victim under Supurdnama (Ex. P-5). 5. Since, as per Article A-01, the victim was found to be below 18 years of age, offences under Sections 7 and 8 of the POCSO Act were also added. Statements of the victim, her parents, and Mansi (PW-3) were recorded. The accused was arrested vide arrest memo (Ex. P-7) and intimation (Ex. P-8) was given to his father. Upon completion of investigation, charge-sheet was filed before the Court against the accused for offences under Sections 354, 354-A, 294, 323, 506 of the IPC and Sections 7 & 8 of the 4 POCSO Act for trial. Upon perusal of the charge-sheet and the documents annexed therewith, a prima facie case was found to be made out against the accused for commission of offences punishable under Sections 354, 354-A(1), 323, 294, 506 Part-II of the IPC and Section 10 of the POCSO Act. Accordingly, charges were framed and read over and explained to the accused. The accused denied all the charges and claimed to be tried. 6. Prosecution in order to prove its case examined as many as 4 witnesses and 10 exhibits. Statements of accused person was also recorded under Section 313 of CrPC in which he denied all incriminating evidence available against him, pleaded innocence and false implication. 7. The learned trial Court after appreciating oral and documentary evidence available on record vide impugned judgment dated 16.12.2022 convicted and sentenced the appellant as mentioned in opening paragraph of this order. Feeling aggrieved by the said judgment, the instant appeal under Section 374(2) of CrPC has been filed by the appellant. 8. Learned counsel for the appellant would submit that the learned Additional Sessions Judge, F.T.S.C. (POCSO), Korba erred in convicting the appellant, as the impugned judgment and sentence are against law, facts, and evidence. The prosecution examined only four witnesses, all of whom are related/interested, though the alleged incident occurred on a busy road, yet no independent 5 witness was produced. The victim was allegedly sent for medical examination but no medical report was filed, creating serious doubt. Even as per the prosecution, no overt act was committed by the appellant and at most certain words were allegedly uttered, which, even if assumed true, do not constitute any offence. The depositions of the victim and other witnesses suffer from contradictions, omissions, and improvements, the victim herself gave inconsistent versions under Sections 161 and 164 CrPC and in Court. Thus, the case appears to be false and fabricated. The trial Court wrongly held the appellant guilty under Sections 354 IPC and 10 of the POCSO Act, despite the admitted fact that the alleged incident took place on a public road where commission of such offence was improbable. The prosecution failed to prove the essential ingredients of the offences beyond reasonable doubt, and in absence of reliable and corroborative evidence, conviction and sentence of the appellant is unsustainable. Further, in view of Section 42 of the POCSO Act, double punishment for the same incident is impermissible. Lastly, the sentence under Section 10 of the POCSO Act, the trial Court awarded maximum sentence of 7 years without recording any cogent reason, whereas, the minimum sentence provided is 5 years, hence the same be modified to 5 years. 9. On the other hand, learned State Counsel opposing the prayer of learned counsel for appellant submits that the learned trial Court has rightly convicted and sentenced the appellant, in which no 6 interference is called for. 10. I have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 11. The first question for consideration before this Court would be, whether the trial Court has rightly held that on the date of incident, the victim was minor? 12. When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredient to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years. 13. In Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263, the Hon’ble Supreme Court laid down the guiding principles for determining the age of a child, which read as follows : “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under : 7 “12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of 8 the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW- PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child 9 is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.” 14. In the present case, the prosecution has presented birth certificate of the victim (Article A-01), in which the date of birth of the victim is mentioned as 12.07.2010. The defence has not presented any oral or documentary evidence to refuse the said date of birth, therefore, there is no reason to disbelieve the date of birth of the 10 victim, as 12.07.2010 hence, I am of the considered opinion that the trial Court has rightly held that the date of birth of the victim is 12.07.2010 and her age on the date of incident i.e. 02.03.2022, was 11 years, 7 months and 21 days old, thereby falling within the definition of “child” under the POCSO Act, being below 12 years of age. 15. Now the issue that arises for consideration in the present appeal is whether the testimony of the victim deserves acceptance and whether the prosecution has established the case of the appellant beyond reasonable doubt. 16. It is pertinent to observe that the question whether conviction of the accused can be based on the sole testimony of the victim in cases of sexual assault/rape is no longer res integra. The Hon’ble Supreme Court has dealt with the issue in a catena of judgments and has held that the sole testimony of the victim if found reliable can be the sole ground for convicting the accused and that the creditworthy testimony of the victim in cases of such nature deserves acceptance. 17. The victim has been examined as (PW-2) and she has deposed against the appellant that on 02.03.2022, at about 6–7 P.M., she was returning home along with her friend PW-3 from Ashok Kirana Shop. On the way, the accused caught hold of her hand, pulled her towards him, and held her around her waist. Her friend PW-3 rescued her from the accused. She further deposed that at that 11 time, the accused opened his pant, exposed his private part and told her to take it in her mouth and also abused her with filthy words. Thereafter, when they reached near the locality, the accused again hurled obscene abuses. She informed her parents at home about the incident. She has given her statement before the police as well as before the Magistrate. 18. PW-3, friend of the victim, who was present at the time of the alleged incident along with the victim, has supported the prosecution version and deposed against the appellant that on 02.03.2022, she had gone with the victim to Ashok General Store to purchase some items. At that time, it was around 6:15 to 7:00 in the evening. While the victim and she were returning with the goods, the accused caught hold of the victim, and when she rescued her from him, the accused opened his pant and started abusing in filthy language using obscene words about mother and sister, and also said the victim to take his private part in her mouth. 19. PW-1, father of victim deposed against the appellant that on 02.03.2022, when he returned home around 7:00–7:30 in the evening after selling milk, the victim, while crying, told him that when she and her friend were returning home after buying items from the nearby grocery shop, the accused, who was drunk at that time, caught hold of her daughter/the victim’s hand and pulled her close to his body. When her daughter managed to free herself with the help of her friend (PW-3), the accused opened his pant, 12 exposed his private part, and said that no one could do anything to him. 20. The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of NCT of Delhi, 2012 (8) SCC 21 held as under:- “22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it 13 should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 21. Considering the fact that the prosecution has successfully proved the charge against the appellant beyond reasonable doubt. The testimony of the victim (PW-2), duly corroborated by PW-3 and PW-1, material available on record and law laid down by the Hon’ble Supreme Court, inspires confidence and establishes the incident in clear terms. The victim was a minor aged about 11 years and 7 months at the time of occurrence, thereby attracting the provisions of the POCSO Act. The trial Court has rightly appreciated the evidence on record and convicted the appellant for the offences punishable under Section 354 of the IPC and Section 10 of the POCSO Act. Therefore, the conviction of the 14 appellant for the offence under Section 354 of the IPC and Section 10 of the POCSO Act is hereby maintained. 22. So far as the sentence imposed upon the appellant for the offence under Section 10 of the POCSO Act is concerned, considering the fact that at present, appellant is aged about 30 years and has been in custody since 16.12.2022, this Court finds it appropriate to reduce the sentence from RI for 7 years to RI for 5 years under Section 10 of the POCSO Act, as the appellant has already suffered the agony of criminal trial for so many years, that meets the ends of justice. 23. Consequently, the criminal appel is partly allowed. Conviction of the appellant under Section 10 of the POCSO Act is hereby maintained, however, his sentence is reduced from RI for 7 years to RI for 5 years. The fine amount shall remain intact. 24. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as modified by this Court. 25. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance. 26. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble 15 Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- (Ramesh Sinha) Chief Justice Akhil