Afr High Court
Case Details
AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.08.14 17:34:34 +0530 1 2025:CGHC:40888 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 776 of 2023 • Ramu Yadav @ K.D. Yadav S/o Shambhu Yadav Aged About 47 Years R/o Ward No. 02, Masjid Dafai Ledari, P.S. Jhagrakhand, District Korea (C.G.). versus ... Appellant. • State Of Chhattisgarh Through Police Station Jhagrakhand District Korea (C.G.). ... Respondent. For Appellant : Shri Hemant Kumar Agrawal, Advocate. For State/Respondent : Ms. Nupoor Sonkar, Panel Lawyer. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 13/08/2025 1. This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 is directed against the impugned judgment of conviction and order of sentence dated 24.03.2023 whereby, learned Additional Sessions Judge FTSC {POCSO}, Manendragarh, Distt. Koriya, Chhattisgarh in Special Criminal Case No.84/2021 has convicted and sentenced the appellant as under: 2 Conviction Under Section 354 of the Sentence RI for 2 years and fine of IPC Rs.500/-, in default of payment of fine, to undergo RI for further Under Section 354 (B) of one month. RI for 3 years and fine of the IPC Rs.500/-, in default of payment of fine, to undergo RI for further Under Section 10 of the one month. RI for 5 years and fine of POCSO Act. Rs.500/-, in default of payment of fine, to undergo RI for further one month. All the sentences were directed to run concurrently. 2. Case of prosecution, in brief, is that on 10.09.2021, family of the victim (PW-2) was invited for the meals in the house of the appellant on the occasion of Teej festival. Victim (PW-2), a minor girl aged about 10 years and a student of 6th standard, on the date of incident at about 8:00 pm, had gone to the house of the appellant along with her father’s sister (Bua) namely ‘V’ (PW-4), ‘N’ (PW-5) and with grandmother namely ‘MD’ (not examined). After taking the meals, while the lady members were having a chat in front of house of the appellant, the minor victim alone went ahead of the house of the appellant and when she reached near a Banyan tree, the appellant called her and told her that her Bua was calling her and thereafter the appellant took the minor victim near the Banyan tree and removed her t-shirt and pressed her left breast with an intention to outrage her modesty. When the victim made a hue and 3 cry by shouting bua-bua, no one heard the noise and somehow the victim managed to rescue herself by biting the right hand of the appellant and came back to her Bua and narrated the incident to her and other members. After coming back home, the victim disclosed the incident to her mother (PW-1) also and on the same day of incident at
Facts
about 11:55 pm, a named FIR was lodged against the appellant vide Ex.P/1 by the victim with the police station Jhagrakhand, Distt. Koria. 3. Crime details form and sketch map was prepared vide Ex.P/2. School marksheet/progress report of 2nd standard (Article- A/1) was obtained from the victim vide Ex.P/3, wherein, her date of birth has been recorded as 20.09.2011. Birth Certificate (Article- A/2) was also seized from the victim vide Ex.P/4 wherein, the same date of birth has been recorded as in Article A/1. Victim was subjected to medical examination and no external injury was found on the body of the victim by Dr. Shweta Kesari (PW-3) in her report vide Ex.P/5. 4. Statement of the witnesses were recorded. Appellant was apprehended on the next day i.e. 11.09.2021 of the date of incident vide Ex.P/7 and after completion of investigation, charge sheet was filed. 5. During the trial, appellant abjured his guilt and claimed to be tried. 6. In order to prove its case, prosecution has examined as many as 7 witnesses and exhibited 7 documents vide Ex.P/1 to Ex.P/7 and Article A/1 i.e. progress report and Article A/2 i.e. birth certificate of the victim issued by the Registrar, Municipality Manendragarh issued under Section 12/17 of the Registration of Births and Deaths Act, 1969. 7. In the statement recorded under Section 313 Cr.P.C., appellant pleaded 4 false implication and did not adduce any defence evidence. 8. Learned trial Court, after evaluating the evidence, convicted and sentenced the appellant as mentioned in opening paragraph of this judgment.
Legal Reasoning
case of the prosecution as it is well settled that minor discrepancies in the statement of the witnesses should not be given undue importance. 18.As regards the age of the victim, prosecution has exhibited birth certificate (Article A/2) which has been issued by the Registrar of the Municipality under the Registration of Births and Deaths Act, 1969. When a Birth Certificate has been issued by the Public Officer in the discharge of statutory duty, the same is a public document and no formal proof of the same is necessary. 19.For ready reference, Section 74 of the Indian Evidence Act, 1872 is quoted below: 8 74. Public documents.-The following documents are public documents :- (1) Documents forming the acts, or records of the acts - (i)of the sovereign authority; (ii)of official bodies and tribunals; and (iii)of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country; (2) Public records kept [in any State] of private documents. 20.From the Birth certificate (Article A/2) seized vide Ex.P/4, date of birth of the victim has been recorded as 20.09.2011 and on the same date, registration has been done vide Entry No.2095 registration dated 20.09.2011 and the same has been issued on 17.10.2011 by the dispatch No.173. The same date of birth has been recorded in the school marksheet (Article A/1) which has been seized during investigation from the victim by the Investigating Officer vide Ex.P/3. Hence, age of the victim has been duly proved and on the date of incident, the victim is below the age of 12 years. 21.In the Protection of Children from Sexual Offences Act, 2012, Sexual Assault has been defined under Section 7 and when the said act is committed with a child below the age of 12 years, the same amounts to Aggravated Sexual Assault as per Section 9 (m) of the said Act and is punishable under Section 10 of the said Act and minimum sentence of 5 years has been prescribed which has been awarded by the learned trial Court. 22.Moreover, in cases under the POCSO Act, a ‘sterling’ witness refers to a 9 witness whose testimony is of high quality and caliber to the extent that the Court can accept their version of events without requiring additional corroboration. The Hon’ble Supreme Court in ‘n’ number of cases, has observed that the testimony of a victim can be sufficient for conviction, if it is trustworthy and of sterling quality. 23.The Supreme Court in the matter of Rai Sandeep alias Deenu vs. State (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 10 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 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.” 24.On the basis of aforesaid discussion, and for the reason that the victim has passed the test of cross-examination and she is a sterling witness, 11 this Court finds her as a fully reliable witness. Hence, there is no infirmity or illegality in the finding recorded by the learned trial Court in convicting the appellant for offence under Sections 354, 354 (B) of IPC and under Section 10 of the POCSO Act. 25.This Court finds that prosecution has succeeded in proving its case beyond all reasonable doubt against the appellant and the conviction and sentence as awarded by the trial Court are upheld. 26.The present Appeal lacks merit and is accordingly dismissed. 27.Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing the jail sentence 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 Supreme Court with the assistance of High Court Legal Service Committee or the Supreme Court Legal Services Committee. 28.Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Avinash Sd/- (Deepak Kumar Tiwari) Judge
Arguments
9. Learned counsel for the appellant would submit that birth certificate has been exhibited by the Investigating Officer namely Subal Singh (PW-7) vide Article A/2 and marksheet vide Article A/1, but mere marking on the said documents is not sufficient to discharge the burden of proving the said documents. Learned counsel further submits that the manner of the incident as stated by the victim (PW-2) itself creates doubt about the happening of the said incident as the place of the incident is near to house of the appellant where a program was organized and other independent witnesses was present, however, neither any independent witness was examined during the investigation nor before the trial Court and at the moment, when other members are present, it is very unnatural for the appellant to commit such an act. He would further submit that when the manner of occurrence itself creates doubt, the benefit must be extended to the accused and for such proposition he would place reliance in the matter of Pandurang Sitaram Bhagwat v. State of Maharashtra {AIR 2005 SC 643}. Learned counsel further submits that victim had also gone to the house of the appellant along with her grandmother but she was not examined, so an adverse inference may be drawn. He also submits that medical evidence also does not support the case of the prosecution as no injury was found on the body of the victim. He submits that appellant has taken a specific defence that wife of the 5 appellant had taken a cash loan from the mother (PW-1) of the victim and there was a dispute for returning the said amount. He submits that no presumption can be drawn that prosecutrix would always narrate entire story truthfully and the burden always lies on the prosecution to prove its case beyond reasonable doubt. The said principle has been reiterated in the matter of Abbas Ahmad Choudhary v. State of Assam {2010 AIR SCW 1917}. He would also place reliance in the matter of Sham Singh v. State of Haryana {AIR 2018 SC 3976} and in the matter of Thulia Kali v. The State of Tamil Nadu {1972 CRI. L. J. 1296}. 10.On the other hand, learned counsel for the State would submit that victim (PW-2) has categorically deposed as to the manner of the incident and the stand taken by the defence that wife of the appellant had taken a cash loan from the mother of the complainant has not been accepted by mother of the victim. Even in the statement, no such plea has been raised by the appellant himself. She would further submit that immediately after the incident when the mother came to know about such misdeed of the accused/appellant, she went to the house of the appellant and slapped him for such conduct and the appellant accepted his mistake. Thereafter, a prompt FIR has been lodged. Hence, the impugned judgment is well merited and does not call for any interference. 11.I have heard learned counsel for the parties, considered their rival submissions made herein above and went through the original record of the learned trial Court with utmost circumspection. 12. In the case at hand, Victim who is a minor girl aged about 10 years 6 (PW-2) stated that on the date of incident she along with her grandmother and father’s sister (Bua) had gone for taking dinner in the house of the appellant and after taking the meals, while her aunt (Bua) and grandmother were having a chat in front of the house of the appellant, she and her brother went ahead to their home and her brother went ahead of her on his bicycle. When she reached near the Banyan tree near the house of the appellant, the appellant called her and told her that her Bua was calling her and then forcefully took her near the Banyan tree and with a bad intention put his hands under her cloth and pressed her breast. Somehow, the victim managed to rescue herself by biting the hand of the appellant and reached to her Bua and narrated the aforesaid incident to her and mother (PW-1). Thereafter, an FIR was lodged on the date of incident by the victim vide Ex.P/1. 13.Victim (PW-2), in cross-examination, has denied that there was a dispute about the money between wife of the appellant with her mother and Bua. Mother of the victim (PW-1), in cross-examination, also denied the suggestion given by the appellant that wife of the appellant has taken cash loan of Rs.10,000/- from her and that her mother and her sister-in- law (Nanad) who happens to be Bua of the victim went to the house of the appellant for taking loan amount back and there was no dispute regarding such money. 14.From scanning of the evidence, no such defence is established and even the appellant has not taken such a plea in the statement recorded under Section 313 Cr.P.C. 15.There was a close relation between both the families as even on the date 7 of incident, the family of the appellant invited the victim and her family for dinner on the occasion of Teej festival. Hence, there was no reason for the victim and her family to depose against the appellant when he has not committed any such heinous crime. 16.Mother of the victim (PW-1) deposed that when she came to know about the incident, she immediately rushed to the house of the appellant and found that the appellant was in a drunken state and she slapped the appellant two-three times and the appellant accepted his mistake. 17.On close scrutiny of the evidence of the victim (PW-2), this Court finds that the statement of the victim is fully reliable and there is ample corroboration by the other witnesses who had also visited the house of the appellant namely ‘V’ (PW-4) and ‘N’ (PW-5). Hence, this is not a case where non-examination of other witnesses would be fatal to the