Raigarh, Chhattisgarh v. State Of Chhattisgarh Through Police Station Kharsia, District Raigarh, Chhattis
Case Details
1 2025:CGHC:4439-DB NAFR BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.01.25 14:39:08 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2256 of 2023 Rajindar Chouhan @ Raja Chouhan S/o Govind Chouhan, Aged About 28 Years R/o Village Matkihanwapara, Police Station Kharsia, Raigarh, District : Raigarh, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Kharsia, District Raigarh, Chhattisgarh. ... Respondent For Appellant : Mr.Alok Kumar Dewangan, Advocate For Respondent : Mr.Nitansh Jaiswal, Panel Lawyer Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, CJ 24/01/2025 1. This criminal appeal arises out of the judgment of conviction and order of sentence dated 24.08.2023 passed by the Additional Sessions Judge, Fast Track Special Court (POCSO), Raigarh in Special Criminal Case (POCSO Act) No.41/2020, whereby the 2 appellant has been convicted for offence under Section 376 of the Indian Penal Code (for short ‘IPC’) and Section 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO’) and sentenced to undergo RI for 20 years and fine of Rs.5000/-, in default of payment of fine to further undergo imprisonment for six months. 2. Notice issued to grandmother of the victim has been served to her, but none has appeared on her behalf to context the present appeal. 3. The prosecution story, in brief, is that the complainant/grandmother of the victim made written complaint (Ex.P-8) in the Police Station Kharsia to the effect that her eight years old child/victim lives with her sister-in-law who is paralyzed, her mother has left her. On the night of 9.9.2020, her son and nephew told that the friend of the victim (PW-3) told that the victim was telling her that on the night of 8.9.2020, she had gone to Raja Chauhan’s house to play with his child, so she slept in his house and Raja Chauhan’s wife Suman had gone to the next house to watch TV. Raja Chauhan came home in an inebriated state and put his penis in the victim’s mouth due to which, she woke up from sleep and ran away from there and was not telling anybody out of fear. On the basis of above written complaint of the complainant
Facts
(PW-4), the FIR (Ex.P-9) was registered against the appellant for offfence under Section 376 of the IPC and Sections 3 & 4 of the 3 POCSO Act. The statement of the victim was recorded under Section 164 of the CrPC vide Ex.P-1. Photocopy of dakhil kharij register in which date of birth of the victim was mentioned as 3.6.2011 was seized vide Ex.P-3. Certified copy of dakhil kharij register was seized vide Ex.P-4’C’. The statement of friend of the victim was recorded vide Ex.P-7. Spot map was prepared by the investigating officer vide Ex.P-10. Consent for genital examination of the victim was obtained from grandmother and grandfather of the victim vide Ex.P-11. The statement of grandfather of the victim under Section 161 CrPC was recorded vide Ex.P-12. MLC of the victim was conducted by Dr.Dipika Agrawal (PW-1) vide Ex.P14A and opined no definite opinion can be given regarding unnatural sexual offense. Oral swab and slide were seized vide Ex.P-15. The appellant was arrested on 11.09.2020 vide arrest memo (Ex.P-17). MLC of the appellant was conducted by Dr.Sourabh Agrawal (PW-12) vide Ex.P19A and opined that the appellant may be able to perform sexual intercourse. Oral swab left cheek, oral swab right cheek, oral swab hard plate and slide were sent to FSL for chemical examination vide Ex.P-25. 4. After completion of investigation, the charge-sheet was filed before the Additional Sessions Judge, Fast Track Special Court (POCSO), Raigarh for trial in accordance with law. 4 5. The trial Court has framed charges against the appellant under Section 376 of the IPC and Sections 4 & 6 of POCSO Act. The appellant abjured his guilt and pleaded innocence. 6. In order to establish the charge against the appellant, the prosecution examined as many as 13 witnesses and exhibited the documents (Exs.P-1 to P-28) . The statement of the appellant under Section 313 of CrPC was also recorded 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 and sentenced the appellant as mentioned in para 1 of the judgment. Hence, this appeal. 7. Learned counsel for the appellant submits that there are many contradictions and omissions in the statement of the witnesses regarding incident and procedure adopted by the police. The statement of the doctor, FSL report etc. does not support the case of the prosecution. The appellant has been falsely implicated in the concerned case due to previous enmity between the appellant family with grand parents of the victim. Moreover, medical evidence is not supporting the case of the prosecution. There is no external injury in the private parts of the victim. In fact, medical evidence did not support the case of the prosecution nor the doctor who examined the victim gave any opinion regarding alleged commission of offence with her. He further submits that 5 the prosecution has also not proved the other circumstances. The story was doubtful looking to the evidence recorded. It is not reliable as itself consisting of so many impossible and hypothetical matters. So, the impugned judgment deserves to be set aside. 8. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submits that the prosecution has proved its case beyond reasonable doubt and the victim (PW-1) 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. 9. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 10. 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. 11. 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 6 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. 12. Insofar as, age of the victim on the date of the commission of the offence is concerned, she was admittedly 9 years and 3 months old at the time of the unsavory incident. 13. Indira Rathore (PW-2) is In-charge Headmistress of Government Primary School, Ward No.6, Kharsiya. In para 2 of her statement, she has stated that on 19.10.2020 Kharsiya Police Station sent a memo for providing a certified copy of dakhil kharij register of the victim. The memo is Ex.P-2. After receiving the said memo, she gave the dakhil khrij register of the victim to Kharsiya Police Station, which was seized by the police in her presence. The seizure memo is Ex.P-3. Today she has brought the original dakhil kharij register of the victim with her, in whose serial No.122 the name of the victim, the victim’s father and her mother are recorded. The victim’s date of birth in the said register is 03.06.2011. The victim’s admission in Class 1 is on 04.07.2018 and it is mentioned that she left the school on 05.10.2020. The original dakhil kharij register is Ex.P-4 and attested copy is Ex.P- 4C. 14. Further, upon perusal of the testimony made by the victim in her statement recorded under Section 164 CrPC, it is observed that she has stated that the incident is of Tuesday, 8th September. 7 While playing Raja’s daughter, who lives in neighbourhood, she fell asleep on the bed with her. At night Raja came home in an intoxicated condition and put his penis in her mouth. Then she got up form there and went to her house to sleep. She immediately woke up her grandmother and told her everything, but grandmother did not say anything. After that, she told the whole thing to her friend Nanu who told her mother Kamla about this. Her mother told Dashrath uncle. This has happened with her once. 15. The prosecutrix has been examined as (PW-1). In para 1 of her statement, she has stated that she has gone to the accused’s house to play with his daughter. She slept there in the accused’s house. Then accused Raja came and put his penis in her mouth. Raja was in an intoxicated condition at that time. Then she went from there to tell her friend and told her. Then her friend told her mother. In para 4 of her cross-examination, she has stated that she used to go to the acused’s house to pay with his child, so she know the accused. Her house and the accused’s house are adjacent to each other. On the date of the incident, only she and the accused’s daughter were at the accused’s house. The accused wife had gone to watch TV and had told her to keep playing with her daughter. In para 5 of her cross-examination, she has stated that she went to the house of the accused at 7.30 P.M. to play with his daughter. She returned home at 9.30 P.M. She told her grandmother about the incident after coming home on the 8 date of the incident, but her grandmother did not say anything. She has denied that she did not tell her grandmother anything about the incident on the night of the incident. She has also denied that she did not go to the house of the accused on the night of the incident. She has further denied that accused Raja did not put his penis in her mouth. 16. Grandmother of the victim (PW-4) has stated in para 3 of her statement before the Court that the victim’s friend told her that the accused had come home in an intoxicated condition at night and had put his urinating part in the victim’s mouth. In para 4, she has stated that she took the victim to the police station along with her son where she made a written complaint which is Ex.P-8. On the basis of her written complaint, FIR was registered in the police station which is Ex.P-9. 17. 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 9 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 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 10 supporting materials for holding the offender guilty of the charge alleged.”
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 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.” 20. When considering the evidence of a victim subjected to a sexual 13 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 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.” 21. On these lines, the Hon’ble Supreme Court in Shivasharanappa and Others v. State of Karnataka, (2013) 5 SCC 705 observed as follows: 14 “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.” 22. The Supreme court in the matter of State of UP v. Sonu Kushwaha, (2023) 7 SCC 475 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 15 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.” 23.Considering the statement of the victim (PW-1) who has specifically stated the act of the present appellant, statement of her grandmother (PW-4), the statement of Headmistress Indira Rathore (PW-2) with regard to age of the victim, further considering the statement of the victim recorded under Section 164 CrPC (Ex.P-14), 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 Section 376 of the IPC and Sections 4 & 6 of the POCSO Act. We do not find any illegality and irregularity in the findings recorded by the trial Court. 16 24.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 Special Judge to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 25. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 26. 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. 27. The Registry is also 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 Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Chief Justice Judge Bablu
Arguments
18. In the matter of Alakh Alok Srivastava v. Union of India & Ors., (2018) 17 SCC 291, the Supreme Court 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” 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 11 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.” 19.The Supreme Court in the matter of Nawabuddin v. State of Uttarakhand (CRIMINAL APPEAL NO.144 OF 2022), decided on 8.2.2022 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 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. 12 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