Sarguja, Chhattisgarh v. State Of Chhattisgarh Through Station House Officer, Police Station
Case Details
1 MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.03.07 10:54:29 +0530 2025:CGHC:11048-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1027 of 2021 Rajesh Rajwade S/o Ramnath Rajwade Aged About 35 Years R/o - Binkara, Police Station- Lakhanpur, District- Sarguja, Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh Through Station House Officer, Police Station - Lakhanpur, District- Sarguja, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Akhilesh Mishra, Advocate For Respondent(s) : Mr. Hariom Rai, Panel Lawyer Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Judgment on Board Per Ramesh Sinha, CJ 06.03.2025 1. This appeal arises out of the judgment of conviction and order of sentence dated 18.08.2021 passed by the Additional Sessions Judge (F.T.C.), Special Court (POCSO Act), Ambikapur, District- Sarguja (C.G.) in Special S.T. No. 44/2017, whereby the appellant has been convicted for offence under Section 376(2)(f), 376(2)(g), 2 376(2)(l), 376(2)(n) of the IPC and sentenced to undergo imprisonment for life and fine of Rs.1000/- and under Section 323 of the IPC and sentenced to undergo R.I. for one year and fine amount of Rs.500/- (All the sentences run concurrently). 2. The prosecution story, in brief, is that after receiving the legal proceedings by Child Welfare Committee Surguja, letter No.-23/Ba.K.S./2017-18 dated 28.04.2017, a report was lodged by the prosecutrix in Police Station Lakhanpur to the effect that the she lives with her father/accused in village Binkara, Police Station Lakhanpur and has studied up to class VI. Her father/accused works as a mechanic and when she was young, her mother left her and went with another man. She lives with her maternal grandparents. Her father was in jail for five years after the accused killed her maternal grandfather. After the release of father/accused from jail, the prosecutrix lived with her maternal grandmother and father. Meanwhile, after her grandmother died, she started living with her father/accused. For some time, her father/accused behaved well with her but later her father's behaviour changed and he started misbehaving with her. Her father came and touched her where the prosecutrix used to sleep, she was forced to touch him. On hearing her screams, her aunt and mother came and her father/accused ran away. Next day when nobody was at home, her father locked her in a room and started removing her clothes and tore her camisole. The prosecutrix screamed loudly. Then her father made her sleep on 3 the bed and lay down on her and pressed her leg hard. During that time her father started saying to her that she is his wife and not his daughter and did bad things to her. She could not say anything because her father pressed her mouth and told her not to tell anyone and beat her a lot with a stick. Her father used to do bad things to her continuously and wherever he went, he used to take her with him and there also he used to do bad things to her. She used to feel a lot of pain due to the said act and begged her father to leave her, then her father used to beat her and bite her lips and due to this her lips got swollen. One day when her father was not at home, she ran away to her elder father's house in village Puhputra and told her elder mother about the incident and her elder mother told the entire thing to her elder father. When her elder father asked her about the incident, the complainant said yes. Then her elder father called a Panchayat. Her father also came to that Panchayat and when her father was questioned by the Panchayat, her father said in the Panchayat that the complainant is not my daughter, she is my wife. No action was taken by the Panchayat. The prosecutrix asked the Panchayat members to go to the police station but nobody went with her to the police station. The complainant alone went to Lakhanpur police station to report, but the report was not registered at the police station. From the police station, she was sent to the Child Welfare Committee Ambikapur. After Child Welfare Committee Surguja recorded the statement of the complainant and sent letter 4 No. 23/BA.K.S./2017-18 dated 28.04.2017 to Lakhanpur police
Facts
station for legal action. First Information Report was registered against the accused at Lakhanpur police station under Crime No. 95/2017 under sections 376(f), 376(2) (1), 376(2)(n), 376, 323 IPC and sections 4, 5 (1), 5(n), 6 of Protection of Children from Sexual Offences Act. 3. During the investigation, after taking permission from the prosecutrix and child welfare committee for private part examination of the prosecutrix, private part examination was conducted. Spot map (Ex.P-2) of the crime scene was prepared. Vaginal slide of the prosecutrix prepared by the doctor was seized. The accused was duly arrested and arrest memo (Ex.P.- 14) was prepared and information of arrest (Ex.P.-14A) was given to the wife of the accused Savano. Statement of the prosecutrix was recorded. Statement of the prosecutrix was recorded under Section-164 Cr.P.C (Ex.P-17). After sending complaint to Tehsildar Lakhanpur, Patwari map was obtained. Verified copy of Dakhal- Kharij register of the prosecutrix was seized and seizure memo (Ex.P.-6) was prepared. Anil Kumar Hardaha Child Line Helpline in-charge and a copy of social report (Ex.P.-8) was seized and seizure memo (Ex.P.-19) was prepared. Statements of witnesses were recorded. The seized vaginal samples of the prosecutrix was sent for chemical examination to Joint Director Regional Forensic Forensic Science Laboratory, Ambikapur as per complaint (Ex.P- 20) and report was obtained (Ex.P.-20). FSL report (Ex.P.-23) was 5 received. After complete investigation, charge-sheet was presented in court against the accused under Sections-376, 376 (2) (f), 376 (2) (p), 376(2) (1) 376(2)(n), 323 IPC and Sections-4, 5 (i) (1) (n), 6 Protection of Children from Sexual Offences Act. 4. The charge-sheet was prepared by the Court against the accused under Sections 376(2) (g), 376(2) (h), 376(2) (h), 323 of the Indian Penal Code and Sections 5 (g)/6, 5(2)/6, 5(j) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 and was read out and explained to the accused, but the accused denied the charges and claimed trial. 5. In order to establish the charge against the appellant, the prosecution examined as many as 10 witnesses and exhibited the documents (Exs.P-1 to P-26). After completion of prosecution evidence in the case, the accused was examined under Section 313 of the Code of Criminal Procedure in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 6.
Legal Reasoning
assault and/or sexual abuse. In our view, exploitation of children in such a manner is a crime against humanity and the society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas. As observed and held by this Court in the case of State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, children need special care and protection and, in such cases, responsibility on the shoulders of the Courts is more onerous so as to provide proper legal protection to these children. In 24 the case of Nipun Saxena v. Union of India, (2019) 2 SCC 703, it is observed by this Court that a minor who is subjected to sexual abuse needs to be protected even more than a major victim because a major victim being an adult may still be able to withstand the social ostracization and mental harassment meted out by society, but a minor victim will find it difficult to do so. Most crimes against minor victims are not even reported as very often, the perpetrator of the crime is a member of the family of the victim or a close friend. Therefore, the child needs extra protection. Therefore, no leniency can be shown to an accused who has committed the offences under the POCSO Act, 2012 and particularly when the same is proved by adequate evidence before a court of law.” 37. When considering the evidence of a victim subjected to a sexual offence, the Court does not necessarily demand an almost accurate account of the incident. Instead, the emphasis is on allowing the victim to provide her version based on her recollection of events, to the extent reasonably possible for her to recollect. If the Court deems such evidence credible and free from doubt, there is hardly any insistence on corroboration of that version. In State of H.P. v. Shree Kant Shekar (2004) 8 SCC 153 the Hon‟ble Supreme Court held as follows:“ “21. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands on a higher pedestal 25 than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. However, if the court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration, as understood in the context of an accomplice, would suffice.” 38. On these lines, the Hon’ble Supreme Court in Shivasharanappa and Others v. State of Karnataka, (2013) 5 SCC 705 observed as follows: “17. Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable.” 26 39. The Supreme court in the matter of State of UP v. Sonu Kushwaha, (2023) 7 SCC 475 has held as under : “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 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 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.” 40. On the basis of analysis of evidence presented by the 27 prosecution, it is evident that at the time of the incident, the victim was only 14 years 04 months 16 days old girl and is a minor below 18 years of age. It is proved that the victim is a girl child and that the accused, knowing that the victim was a girl child below 18 years of age at the time of the incident, committed the crime of rape, forcible penetration, sexual assault and rape on the girl/victim below 18 years of age. Thus, the said crime of rape, penetrative sexual assault on a minor girl below 18 years of age by the accused falls under the category of aggravated penetrative sexual assault. 41. Lastly, considering the statement of the prosecutrix (PW-8) who has specifically stated the act of the present appellant, statement of her elder father (PW-2), statement of her elder mother (PW-3), statement of Rakesh Dubey assistant teacher (PW-05) and further considering the statement of the prosecutrix recorded under Section 164 CrPC (Ex.P-17), MLC report of the prosecutrix (Ex.P- 04) conducted by Dr. Kiran Bhajgawali (PW-04) and the material available on record and the principle of law laid down by the Supreme Court in the above-stated judgments, we are of the considered opinion that the learned Special Judge has rightly convicted the appellant for offence under under Section 376(2)(f), 376(2)(g), 376(2)(l), 376(2)(n) of the IPC and under Section 323 of the IPC. We do not find any illegality and irregularity in the findings recorded by the trial Court. 28 42. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentence as awarded by the trial court to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 43. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 44. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellant is undergoing the 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 Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Chief Justice Judge Manpreet
Arguments
Mr. Akhilesh Mishra, learned counsel for the appellant submits that the impugned judgment, conviction and sentence dated 18.08.2021 awarded by the trial Court is bad in law, perverse, thus liable to be set aside. The case is allotted by the Legal Act 6 Committee of High Court of Chhattisgarh vide allocation order no. 1715 dated 31/08/2021. As per the judgment and conviction in para 13, the incident was done between 2016 to 2017, it is made clear that there is no any eye witness of the case and delay of the Lodged of FIR was not define by the prosecution. Dr. Kiran Bhjgavali (PW-04) who has examined the prosecutrix has stated that there is no mark of bruise on her private part and no definite opinion about the forceful intercourse has been mentioned. As per the FSL Report (Ex-P/23), no human semen was found from the virginal slide of the prosecutrix. The age of the prosecutrix has also not been proved. The report has been lodged by the Child Welfare Committee Surguja after a long delayed and the reason for the delay has not been explained satisfactory. Lastly, the trial court has not appreciated the evidence on record properly and came into erroneous conclusion while passing the judgment of conviction which is liable to be set aside. 7. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellant and submits that the prosecution has proved its case beyond reasonable doubt and the prosecutrix (PW-8) has clearly deposed the conduct of the appellant in her statement recorded under Section 164 CrPC and in the Court statement and the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for. 7 8. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 9. The issue that arises for consideration in the present appeal is whether the testimony of the victim/prosecutrix deserves acceptance and whether the prosecution has established the case of the appellant beyond reasonable doubt. 10. 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 prosecutrix 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. 11. The next issue that arises for consideration in the present appeal is whether the age of the victim on the date of commission of the offence concerned, was below 18 years of age. 12. Regarding the age of the victim, Ramkumar Shyam, Sub- Inspector (PW-9), the investigating officer of the case has stated that he was posted as Sub-Inspector in Police Station-Lakhanpur from 01 August 2016 to 30 April 2018. The witness on receipt of the case diary of Crime No. 95/2017 of police station Lakhanpur for further investigation, on 05.09.2017, sent complaint (Ex.P.-05) to the Headmaster of Government Primary School for demanding 8 the mutation register of the complainant and the verified copy of the mutation register of the victim girl was seized from teacher Rakesh Dubey as per seizure letter (Ex.P.-06). 13. Witness Rakesh Dubey, Assistant Teacher (PW-05) has stated in his statement that he is posted as Assistant Teacher in Government Primary School Binkara, Block Lakhanpur, District- Surguja since 2015. This witness has stated that on receipt of complaint (Ex.P.-5) for demand of Dakhil Kharij register related to the prosecutrix by police station Lakhanpur, the police seized the certified copy of Dakhil Kharij register of the prosecutrix (PW-6). The witness has stated that the date of birth of the prosecutrix (PW-08) is mentioned as 12.06.2002 in original Dakhil Kharij register (Ex.P.-7) and in certified copy of seized Dakhil Kharij register (Ex.P.-7C), it is mentioned in serial No.421. The witness has stated that the prosecutrix took admission in class 1 in her school on 25.06.2008 and that her name was struck off from the school on 11.07.2012. 14. The document thus seized i.e. Dakhil Kharij register (Ex.P.-7) regarding the age of the prosecutrix wherein the age of the prosecutrix is mentioned as 12.06.2002 in the school registerwould be admissible in evidence under Section 35 of the Indian Evidence Act. 15. Regarding the age of the prosecutrix, the elder father of the prosecutrix (PW-02) has stated that the age of the prosecutrix is 9 12 or 15 years. Apart from this, the document seized in the case is the Dakhil Kharij register (Ex.P-07C) which is shown to be registered in the primary school. Apart from the above, no challenge has been raised to the fact that the prosecutrix was studying in the school shown in the Dakhil Kharij register after taking admission in class 1. Thus, the relevant document maintained by the school in the official sequence, the Dakhil Kharij register, on behalf of the prosecution regarding the date of birth of the accused has remained completely intact. 16. In this way, it has been established from the evidence of Rakesh Dubey, Assistant Teacher (PW-5) that the date of birth of the prosecutrix (PW-8) is mentioned as 12.06.2002 on serial No.425 of the Dakhil Kharij register (Ex.P.-7C). No oral or documentary evidence has been presented by the defence to refute the said date of birth. Therefore, it is proved and established from the Dakhil Kharij register (Ex.P.-7C), the evidence of the accused and the prosecution evidence that on the date of incident 28.10.2016, the prosecutrix (PW-8) was a minor girl of 14 years 04 months 16 days, below eighteen years of age. 17. The defence has not challenged the oral and documentary evidence produced by the prosecution in cross-examination and in the statement recorded under section 313 regarding the date of birth of the victim as 12.06.2002. Thus, in the present case, the 10 Dakhil Kharij Register (Ex.P.-7C) of the victim has been certified by the prosecution. 18. On the basis of oral and documentary evidence presented, the date of birth of the victim is proved to be 12.06.2002, according to the prosecution story, the date of incident is 28.10.2016,. Therefore, at the time of the incident, the victim was a minor girl, being 14 years 04 months 16 days of age, as proved by the prosecution evidence. 19. The next issue that arises for consideration in the present appeal is whether the the victim a physically and mentally disable minor girl at the time of the incident. 20. During the investigation, no action was taken to seize any certificate regarding the disability of the complainant. Due to which, the medical report of the complainant becomes important. In this regard, during the physical examination of the complainant by doctor Kiran Bhajgavali (PW-04), it was found that during the examination she was continuously having epileptic seizures and the left side of the body was paralyzed. This fact has also been accepted by the elder father of the complainant (PW-02) that the right hand of the complainant is weak since childhood and she gets epileptic seizures. 21. Regarding the condition of the prosecutrix, during her main examination, it was found by the trial court that the prosecutrix is physically weak and her right hand also appears weak. Apart from 11 this, the prosecutrix herself has stated that she sometimes gets tremors. There is no evidence regarding the mental weakness of the prosecutrix, nor is there any medical report. But the statements made regarding the physical weakness of the prosecutrix have not been challenged by the defence. Therefore, despite there being no certificate regarding the physical weakness of the prosecutrix, on the basis of the evidence presented, it is found that at the time of the incident, the prosecutrix was a minor girl suffering from physical disability. 22. The main issue that arises for consideration in the present appeal is whether; (i) The accused, being a relative (father) of the minor complainant under the age of 16 years, have forced sexual intercourse with her and committed rape on 28.10.2016 and before that, in the area of village Binkara, Schoolpara, police station-Lakhanpur, district-Surguja? (ii) Did the accused, on the said date, time and place, took advantage of the physical/mental disability of the complainant and cause bodily harm and damage by forcibly having sexual intercourse with her more than once, thus committing rape and aggravated penetrative sexual assault? 23. With regard to this question, statements Durgaram Ram Rajwade (PW-02), elder mother of the accused (PW-03), Dr. Kiran 12 Bhajgavali (PW-04), Sunil Kumar Kerketta Inspector (PW-07), prosecutrix (PW-08) and Mrs. Rekha Soni CWC Member (PW-10) is taken into consideration. 24. The prosecutrix (PW-08) has stated in her evidence that the accused Rajesh Rajwada is her father. She further stated that her mother went to her maternal home with her younger sister and took another husband, her right hand has not been working since childhood and since the time her father did wrong things with her, she gets tremors, her whole body becomes stiff and she is very restless and in a lot of pain. The prosecutrix has stated that the accused had been in jail for the crime of murdering her maternal grandfather and was released from jail after five years, and that she lived with her grandmother while her father was in jail. The prosecutrix states that the accused came to her sleeping place and touched her chest and whole body with his hands and slept on her, and when she screamed, he would gag her and that her father used to misbehave with her, when his aunt saw this, his father is said to have fled from the spot. The Prosecutrix (PW-08) has further stated that one day her father took off all her clothes and panties in the room and slept on her and did wrong things to her urinary tract due to which she suffered a lot of pain. Her father used to lie on her and do wrong things to her and used to say that she is not his daughter, she is his wife. When she opposed the wrongdoings of her father, 13 the accused beat her badly with a stick, due to which she suffered severe head injury. The prosecutrix has also stated that her father used to do wrong things to her in her urinary tract many times continuously for two years and her lips were swollen due to her father's biting. When her father used to go out for work, he used to take her along and do wrong things to her there also. During this time, she used to have a lot of pain and discomfort in her body and after that she has told that she started getting tremors. She further stated that one day when her father was not at home, she went to her elder father's house in village Puhaputra and told her elder mother about the wrongdoings done by her father, then her elder father called a Panchayat. But her father did not listen to anyone in the Panchayat. One day the complainant alone went to Lakhanpur police station to lodge a report against her father for his wrongdoings and from the police station she was sent to a hostel in Ambikapur, where she told about the incident committed by her father. The complainant further told that she was treated in Ambikapur and Raipur hospitals, the doctor madam even examined her urination area after asking her, before this her statement under section 164 CrPC was recorded once in the court (Ex.P.-17), her consent was taken for medical examination (Ex.P.-18), the police prepared a spot map (Ex.P.-12) and the police recorded her statement. 25. Durg Ram Tirkey (PW-2), prosecutrix’s elder father has stated in 14 his evidence that he knows the accused and the prosecutrix and that the prosecutrix is the daughter of the accused and the accused is her maternal uncle's son and her maternal cousin. The witness states that when the prosecutrix came to his house in village Puhputra and asked him to accompany her to police station Lakhanpur, he took the prosecutrix on his motorcycle to police station Lakhanpur. The prosecutrix told his wife that the accused had done wrong things with her. Then, when his wife came to know about the incident, he took the prosecutrix to the police station. When the witness was questioned by the prosecution, the witness admitted that for a year earlier the prosecutrix had come to his house and told that the accused had done wrong things to her and raped her and it was found that the mental condition of the prosecutrix was not good, then it was found that the prosecutrix was helpless and at the behest of her grandfather Rajnath, the Panchayat took a decision and the prosecutrix was sent to the Orphanage Ambikapur and it is told that the prosecutrix was getting treatment done by Athan Ashram. 26. Kamla (PW-3) elder mother of the prosecutrix in her evidence has stated that she knows the accused, that he is her brother-in-law and that he is her husband's maternal cousin and that the prosecutrix is the daughter of the accused. The witness has stated that after the death of the father of the accused, when the accused went to jail, the prosecutrix lived with her grandparents in 15 village Binkara and has stated that the distance between her village Puhputra and the village Binkara of the prosecutrix is two to three kilometers. The witness has told that prosecutrix came to her house and told her that the accused did wrong things with her, had wrong relations with her, and when the prosecutrix asked her to go to the police station to lodge a report, she told prosecutrix to take her husband / elder father of the prosecutrix along with her, and then the prosecutrix went to Lakhanpur police station. Accused Rajesh has two daughters, of whom the elder daughter is the prosecutrix and the younger daughter who is 5-6 years old lives with her mother i.e. the accused's wife at her maternal home in village Kunkuri, the prosecutor gets epileptic attacks, one of her hands cannot work due to polio. 27. The prosecutrix stated that when she went to the Lakhanpur police station to lodge a report, the police sent her to Ambikapur hostel where she told about the incident committed by her father. 28. Mrs. Rekha Soni (PW-10), the witness of the Child Welfare Committee member has stated in her evidence that she worked as a member in the Child Welfare Committee, District-Surguja C.G. from 22.04.2016 to 19.04.2019. The witness states that on presenting the victim on 07.12.2016, the committee questioned the victim about the incident that happened with her after giving her advice and counselling. In the questioning, the victim told that her father, the accused, used to work as a mechanic, her mother 16 left the victim, the victim’s father remained in jail for five years in the case of murder of his father-in-law, after getting released from jail, the victim lived with her father and grandmother, and after a few days, when the grandmother died, the victim started living with her father. She further stated that as the crime was not registered by the Lakhanpur police station, the prosecutrix was sent from the police station to Ambikapur Child Welfare Committee, Surguja, C.G. At that time, the prosecutrix was very scared and frightened. After her explanation and counselling, her fear was removed and her statement was recorded, in which the prosecutrix told that her father behaved wrongly with her, and when the prosecutrix was sleeping, her father came and touched her, on hearing the victim screaming her aunt came home and her father ran away, then on the next day when the prosecutrix was alone her father came and locked the her in the room, took off his clothes and tore the victim’s shirt and made her sleep on the bed and slept over her and did bad things with the complainant by saying she is his wife and not his daughter and as the accused had gagged the mouth of the prosecutrix, she was unable to scream and was threatened not to tell anybody about the incident, the prosecutrix was beaten a lot with a stick and whenever the accused went anywhere, he used to take the prosecutrix with him and continuously kept doing bad things with her. 17 She further stated that after recording the statements made by the prosecutrix regarding the incident, the statement of the prosecutrix and the counseling report (Ex.P.-24) were sent to the police station in-charge Lakhanpur on 28.04.2017 and the witness has stated that his signature is on part A of the report. The witness has stated that his signature is on part A of the statement of the prosecutrix (Ex.P.-25) attached with the report and the counseling report (Ex.P.-26). 29. Sunil Kumar Kerketta Inspector (PW-7), investigating officer has stated in his statement that he was posted as Inspector in Police Station Lakhanpur from February 2016 to August 2017. The witness on 08.06.2017, on the basis of the girl's counselling report, statement and memorandum received from Child Welfare Committee Ambikapur, FIR No. 95/17 was registered against accused Rajesh Rajwada under Sections 376 (F), 376 (2) (1), 376 (2) (N), 376, 323 IPC and Sections 4, 5 (A), 5 (N), 6 of POCSO Act. Information regarding FIR (Ex.P-9A) was given to Additional Sessions Judge FTC Ambikapur, from which, it is clear that on the basis of the memorandum submitted by Child Welfare Committee on 28.04.2017 in the concerned police station, FIR was registered against the accused on 08.06.2017. The investigating officer has further stated that on 09.06.2017, written complaint (Ex.P-10) was sent to the Tehsildar Ambikapur for permission to get the private parts of the 18 complainant examined, consent was taken from the prosecutrix and Child Welfare Committee for getting the private parts of the prosecutrix medically examined, written complaint (Ex.P-11) was sent to District Hospital Ambikapur for getting the private parts of the complainant medically examined, on the indication of the prosecutrix, a site map (Ex.P-12) was prepared and the place of incident was marked with red ink and shown with symbol-A, the sealed slide prepared by the doctor after examination of the prosecutor was seized and seizure memo (Ex.P-13) was prepared. 30. Witness Sunil Kumar Kerketta Inspector (PW-7) in his statement further arrested the accused Rajesh Rajwada and produced the arrest warrant Preparing Ex.P.-14, informing Ex.P.-14A about the arrest to the accused's wife Sawano, sending complaint Ex.P.-15 to CHC Lakhanpur for examination of the accused's private parts and getting the accused examined, recording the statement of the prosecutor as per her statement, sending complaint Ex.P.-16 for recording the statement of the prosecutor under Section 164 of Criminal Procedure Code, sending complaint Ex.P.-1 to the Tehsildar Lakhanpur for providing the Patwari map of the place of incident. 31. Now coming to the medical evidence adduced; Dr. Kiran Bhajgavali (PW-4), Medical Officer in her statements supporting the medical examination report (Ex.P-4) has stated that on 19 examination of the prosecutrix on 10.06.2017, the victim girl was found to be about 15 years old, during examination she was having continuous convulsions like epilepsy, she had secondary sexual characteristics in the developing stage, there were old injury marks on her head, the left side of her body was paralyzed and she had a total of 28 teeth. The witness further stated that the prosecutrix was about 12 years old and had 14 teeth and there was no injury of any kind on the private parts, two slides were prepared from her vaginal secretion, sealed and handed over to the constable with the advice for chemical test. No internal injury was found, the hymen was old torn, the vaginal opening was patchy, during the test she got a shock once again and it kept coming continuously. In her opinion, the witness has stated as per the above finding that there had been continuous sexual intercourse with the prosecutrix. 32. The prosecution has not produced the evidence of the doctor who examined the accused but as per the report enclosed in the record, it has been opined that the accused was a person capable of having sexual intercourse. 33. Thus, on the basis of the medical report, there are no injury marks on the external genitals of the prosecutrix and the hymen is torn and as per the FSL report (Ex.P-23), no human sperm is found on the slide of the girl and there is no immediate sexual intercourse 20 with the victim girl, but the doctor has stated in her opinion that as per the finding, there was continuous sexual intercourse with the prosecutrix. 34. 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 21 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.” 35. In the matter of Alakh Alok Srivastava v. Union of India & Ors., (2018) 17 SCC 291, in paras 14 and 20, it is observed as under: “14. At the very outset, it has to be stated with authority that the Pocso Act is a gender legislation. This Act has been divided into various chapters and parts therein. Chapter II of the Act titled “Sexual Offences Against Children” is segregated into five parts. Part A of the said Chapter contains two sections, namely, Section 3 and Section 4. Section 3 defines the offence of “Penetrative Sexual Assault” whereas Section 4 lays down the punishment for the said offence. Likewise, Part B of the said Chapter titled “Aggravated Penetrative Sexual Assault and Punishment therefor” 22 contains two sections, namely, Section 5 and Section 6. The various subsections of Section 5 copiously deal with various situations, circumstances and categories of persons where the offence of penetrative sexual assault would take the character of the offence of aggravated penetrative sexual assault. Section 5(k), in particular, while laying emphasis on the mental stability of a child stipulates that where an offender commits penetrative sexual assault on a child, by taking advantage of the child's mental or physical disability, it shall amount to an offence of aggravated penetrative sexual assault.” “20. Speaking about the child, a three Judge Bench in M.C. Mehta v. State of T.N. (1996) 6 SCC 756 “1. … “child is the father of man”. To enable fathering of a valiant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned.” 36. The Supreme Court in the matter of Nawabuddin v. State of Uttarakhand (CRIMINAL APPEAL NO.144 OF 2022), decided on 8.2.2022 has held as under:- “10. Keeping in mind the aforesaid objects and to achieve what has been provided under Article 15 and 39 of the Constitution to protect children from the offences of sexual assault, sexual harassment, the POCSO Act, 2012 has been enacted. Any act of sexual 23 assault or sexual harassment to the children should be viewed very seriously and all such offences of sexual assault, sexual harassment on the children have to be dealt with in a stringent manner and no leniency should be shown to a person who has committed the offence under the POCSO Act. By awarding a suitable punishment commensurate with the act of sexual assault, sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children for pornographic purposes they shall be punished suitably and no leniency shall be shown to them. Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure. Children are precious human resources of our country; they are the country’s future. The hope of tomorrow rests on them. But unfortunately, in our country, a girl child is in a very vulnerable position. There are different modes of her exploitation, including sexual