1 2025:CGHC:32539-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 523 of 2024 Amrit Chouhan S/o Late Karmaha Chouhan Aged About 25 Years R/o Ward No. - 37, Rajivgandhi Nagar, Bhajandipa, Chowki, Jutmil, District Raigarh (C.G.) ... Appellant(s) versus State Of Chhattisgarh Through P.S. Jutmil, District Raigarh (C.G.) ... Respondent(s) For Appellant(s) : Mr. Rishi Rahul Soni, Advocate For Respondent(s) : Mr. Malay Jain, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, CJ 14.07.2025 1. This appeal arises out of the judgment of conviction and order of sentence dated 02.02.2024 passed by the Additional Sessions Judge, Fast Track Special Court under POCSO Act, Raigarh, District- Raigarh (C.G.) in Special Criminal Case under POCSO Act No. 39/2020, whereby the appellant has been convicted for MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.07.16 10:37:26 +0530 2 offence under Section 363 of the IPC and sentenced to undergo rigorous imprisonment for three years and fine of Rs.1000/-, in default of payment of fine to further undergo rigorous Imprisonment for two months and under Section 4(2) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as ‘POSCO’) and sentenced to undergo rigorous imprisonment for 20 years and fine of Rs.5000/-, in default of payment of fine to further undergo Rigorous Imprisonment for six months (Both the sentences run concurrently). 2. The prosecution story, in brief, is that a written complaint was made by the mother of the victim at the Jute Mill Police Station to the effect that about 20-25 days ago, her daughter was standing near the door of the house at 11 pm, at that time, Amrit Chauhan / accused herein, who lives in front of their house, took the victim to his house by pressing her mouth and forcefully raped her and threatened to kill her if she told anyone, due to which, the victim was scared. On 14.10.2020, the victim told about the incident to the neighbor PW-9, on getting information from PW-9, they questioned the victim, then the victim told them about the incident. On the basis of the aforesaid written complaint of the mother of the victim, the First Information Report (Exhibit P-5) was registered at City Kotwali Police Station, Ragyadh under Crime No. 772/2020, Sections 363, 376, 506 of the Indian Penal Code 3 and Section 6 of the Protection of Children from Sexual Offences Act, and investigation proceedings were started in the case. 3. During the investigation, the victim's private parts were examined and the statements of the witnesses were recorded. The victim and other witnesses were recorded under Section 164 of the Cr.P.C. and when evidence of crime was found against the accused, the accused was arrested and the arrest warrant was issued. Identification proceedings of the witnesses was conducted with the accused under Section 164 Cr.P.C. when they did not know the accused by name and stated that they recognized him by face. 4. The attested copy of the mutation register related to the age of the victim was seized as per Ex.P-15C, seizure sheet Ex.P-14. During the investigation, the spot map of the incident was prepared and the Class 6 progress card (Article A-1) of the victim related to the age of the victim was seized as per seizure sheet (Ex.P-8). When lady constable Hemlata Lakda brought and presented the vaginal slide and underwear of the victim in a hospital sealed packet, the same was seized as per seizure memo (Ex.P-18) and when constable 567 brought the underwear of the accused from the hospital after testing his penis, the same was seized as per seizure memo (Ex.P-24). The seized exhibits were sent to the Regional Forensic Science Laboratory, Bilaspur for chemical examination. After completing the investigation proceedings, a 4 charge-sheet was filed under Sections 363, 376, 506 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act. 5. Upon examination of the presented charge-sheet and the attached documents, prima facie the accused was charged under Sections 363, 376, 506 (Part II) of the IPC and Section 6 (Protection of Children from Sexual Offences) Act 2012. When the charges were read out and explained to the accused, he denied committing the crime and demanded a trial, claiming that he was innocent. 6. In the trial under Section 313 of the CrPC, the accused gave his evidence as defence evidence, stating that he is innocent and has been falsely implicated. In order to establish the charge against the appellant, the prosecution examined as many as 33 witnesses and exhibited the documents (Exs.P-1 to P-33). 7. 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. 8. Mr. Rishi Rahul Soni, learned counsel for the appellant submits that the impugned judgment, conviction and sentence dated 02.02.2024 awarded by the trial Court is bad in law, perverse, thus liable to be set aside. Further, according to medical report (Ex.P-10) and Statement of Doctor (PW-03), no any injuries, no swelling and bleeding found in internal and external parts of the 5 victim. According to medical report (Ex.P-10) and Statement of Doctor (PW-03), Hymen of victim is not ruptured, it is intact and Intact hymen is impossible after any sexual intercourse. Also, according to F.S.L. report, there is no human sperm found in Articles A and B, which were seized from victim. PW-01 (Victim) said in her statements that on the date of incident, she was going to her aunt’s house but as per the spot/site map prepared by the I.O. and Patwari, aunt’s home of victim is not available from which it is proved that victim gave totally false statement. According to the charge-sheet, incident place is house of appellant but in the house of appellant, family members of appellant were also available, and in the presence of family members of accused this type of incident is impossible. Further, the date of incident is 22/09/2020 and date of F.I.R. is 15.10.2020, as such there is 24 days delay in the F.I.R. and victim has also not told to anyone about incident till 24 days, which itself doubts the statement of victim. So far as aged of the victim is concerned, the mother of victim clearly said in her statement that she don't know about date of birth of her daughter. The prosecution has not produced any Birth Certificate and Kotwar Panji before trial Court and date of birth of prosecutrix was registered in the Dakhil Karij Register on the basis of presumption. The impugned judgment and order is perverse on the ground that the same is outcome of the incorrect interpretation of the circumstantial evidence. Also, all prosecution witnesses of this case are relatives and friends of prosecutrix, no 6 any independent witnesses are examined before trial court. The age of appellant is only 25 year old, his whole future may effect from detention. The report has been lodged by the father of the prosecutrix 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. 9. 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 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. 10. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 11. 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. 7 12. 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. 13. 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. 14. Regarding the age of the victim, victim (PW-1) has stated in her examination-in-chief that her date of birth is 19.12.2007. The same date of birth dated 19.12.2007 is also recorded in the victim's progress card (Article A-1), Dakhil Kharij Register (Ex.P- 15C). Dakhil Kharij Register (Ex.P-15C) is verified by the Headmistress (PW-4) of the concerned school, and the Headmistress (PW-4) has endorsed the said Dakhil Kharij Register (Ex.P-15C). 15. Though the mother of the victim (PW-2) has stated in the examination-in-chief that she does not remember the date of birth of the victim, she has stated in the cross-examination that the age of the victim was 14 years. Thus, documentary evidence on record regarding the age of the victim (PW-1) is the progress 8 report of the victim (PW-1), Article A-1, Dakhal Kharij Register (Ex.P-15C) is on record. 16. This has been held by the Hon'ble Supreme Court in the case of Usman vs State of Uttarakhand 2021 SCC OnLine Utt 142, relying on the guidelines of Jarnail Singh vs State of Haryana (2013) 7 SCC 263, whereby it has been determined that the age of the victim in POCSO cases shall be determined as per the provision mentioned in Section 94 of the Juvenile Justice (Care and Protection) Act 2015 on the basis of Rule 12 (3) of the POCSO Rules, 2007. 17. Sub-section (2) of Section 94 of the Juvenile Justice (Care and Protection) Act 2015 provides that – 94(2)- In case, committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining- (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available, and in the absence thereof. (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; 9 (iii) and only in the absence of (1) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. 18. Thus, for determining the age of a child victims under the POCSO Act, the date mentioned in his/her school certificate or matriculation or equivalent certificate from the concerned examination board shall be taken into consideration first and if any of these is missing, then the birth certificate issued by the Corporation or Municipal Officer or Panchayat shall be considered and failing that, the age shall be determined through ossification test. 19. According to the defence, the mother of the victim (PW-2) has stated in the cross-examination that her daughter was 3 years old at the time of her admission in the school. The mother of the victim (PW-2) has also admitted in the cross-examination that the victim did not have a birth certificate, so the school teachers wrote her date of birth as per their own calculation. The mother of the victim (PW-2) has also that at the place where the victim was born, the Kotwar used to live there and after the birth of the victim, she went to the Anganwadi and got her date of birth registered. 10 20. Now, if the victim was admitted at the age of three years at the time of admission in the school and the victim was studying in Class VIII at the time of the incident, then this statement of admission of the victim at the age of "three years" is also an assumption of the victim's mother (PW-2). In the Dakhal Kharij register (Ex.P-15C), date of birth of the victim (PW-1) is 19.12.2007 and date of admission in Class 1 is 17.06.2013. 21. Thus, the entry in Exhibit P-15C regarding admission of the victim (PW-1) in Class I is relevant. The entry in the Dakhal Kharij Register (Ex.P-15C) shows that the victim took admission in Class I at the age of 5 years and 4 months and the victim passed Class VI in the year 2018-19, which is confirmed by the progress sheet (Article A-1). Hence, if the victim (PW-1) has passed Class VI in the year 2018-19, then the victim must have passed Class VII in the year 2019-20, only then the victim is stating on the evidence dated 28.01.2021 that she studies in Class VIII. 22. The mother of the victim (PW-2) has stated in the cross- examination that she does not remember the date on which her marriage took place and she herself states that it happened 21-22 years ago. In the cross-examination, the mother of the victim (PW-2) has also stated that the age of her elder daughter is 21 years, the age of the second son is 16 years and the age of the younger daughter victim is 14 years. 11 23. Where the question arises regarding the non-production of the birth certificate regarding the age of the victim, then even if the birth certificate is not produced, the Dakhal Kharij register and progress sheet are produced. Although no examination report has been obtained from the orthopedic specialist, the examination report of the orthopedic specialist will be necessary where the birth certificate or the certificate obtained from the school is not available. 24. There is no strong reason to disbelieve the date of birth dated 19.12.2007 recorded in the progress sheet (Article A-1) and the mutation register (Ex.P-15C). Now, the victim (PW-1) has also given the same date of birth in her main examination. The fact of the victim's mother (PW-2) being less educated is also being proved, there is no reason to disbelieve the circumstances discussed in the progress sheet (Article A-1) and the Dakhal Kharij register (Exhibit P-15C). Therefore, it is proved that the date of birth of the victim (PW-1) is 19.12.2007, hence, as on the date of the incident i.e. 22.09.2020, the age of the victim (PW-1) is 12 years and 9 months i.e. less than 16 years. 25. Now the next question that arises for consideration before this Court is whether the accused abducted the minor victim by taking her beyond her legal capacity on 22.09.2020 and committed 12 aggravated penetrative sexual assault by raping the victim below 16 years of age on the said date, time and place of incident? 26. In this regard, the statement of the victim (PW-1) being acquainted with the accused is not disputed. The victim (PW-1) has deposed in her examination-in-chief that on the night of 22.09.2020 at 11.00 pm she was going to her aunt's house after asking her mother. The house of the accused is near her house. That night the accused was taking a stroll in front of his house, when she was going to her aunt's house, the accused dragged her to his house by gagging her mouth and made physical relations with her in his house and said that if she tells anyone then he would kill her, thereafter she came back to her house from there. The victim (PW1) has further deposed in the main trial that she did not tell anyone about the incident due to household chores. On 14.10.2020, she told her neighbour Bhabhi about the incident, then her Bhabhi told her mother about the incident. 27. The mother of the victim (PW-2) deposed that after 20 days her daughter told her sister-in-law living in the neighborhood about the incident that the accused Amrit Chauhan had forcefully raped her. She then came to her house and told her about the incident, then she questioned the victim. The victim told her crying that the accused had taken her to his house by pressing her mouth and dragging her and had raped her and she did not tell anyone about it because he has threatened to kill her if she tells anyone. 13 28. Thus, according to the victim (PW-1) and the victim's mother (PW- 2), the victim first informed the neighbour's sister-in-law about the incident. The victim's neighbour (PW-9) has also supported the victim's statement and alleged that the victim had come to her house for a visit, the victim told her that the accused had raped her, then she said that you go and tell this to your parents, then the victim told her that I am scared and asked PW-9 to go and tell her parents, then she went to the victim's house and told her mother about the incident. This witness has stated in her cross- examination that when she told the victim's mother about the incident that happened with the victim, victim's sister was also there at that time. 29. The mother of the victim (PW-2) has also stated in her examination-in-chief that a written complaint (Ex.P-4) regarding the incident was lodged by her at Chowki Jute Mill. In the written complaint (Ex.P-4) also, the fact that the victim's neighbour (PW- 9) informed the victim's mother about the incident is mentioned. 30. According to the prosecution story, when the accused, by pressing the mouth of the victim was taking her towards his house, he was alleged to have been seen by victim's neighbour (PW-5), victim's neighbour (PW-4) and witness No. J (who has been given up and not examined by the prosecution). 31. Victim's neighbour (PW-5) has also alleged in his examination-in- chief that he was strolling in the neighbourhood with his friends 14 after having dinner at 10.00 pm, at that time the victim was standing in front of the door of her house, the accused came there and pressed the victim's mouth and took her towards his house by holding her hand. When the accused saw them, he started threatening that them that if they tell anyone, he will kill them, so they did not tell anyone out of fear. The neighbour of the victim (PW-4) also supported the statement PW-5 and has alleged that he saw that the accused was taking the victim away by holding her hand, hearing the victim screaming they went to her, then the accused threatened to beat them and asked them to leave, then they left the place. 32. Similarly, the victim's elder mother (PW-10), the victim's friend (PW-11), another friend of the victim (PW-12) have also stated in their court testimony that the victim's mother and the victim informed them about the incident. Thus, the statements of these witnesses are based on the information given about the incident by the victim's mother and the victim herself. 33. The accused, while examining himself in his defence, has stated that it was September 2020, he does not remember the date, he went to the house of his fiance Sheetal Chauhan, which is 100 steps away from his house, at 10.00-10.30 pm as her father was in pain, but due to lockdown, he told her father that he would take him to the clinic in the morning, and after giving him medicine at night, he went to his home. On the second day of the incident, his 15 friends told him that the victim meets and talks to a person named "H" from the same locality at night, then he explained to "H" not to meet and talk to the victim at night, the people in the locality will misunderstand, after a few days when they started meeting again, he once again explained to "H" that if he does not agree then he will have to tell the victim's family members, after a month of this, the victim's mother came to his house and started saying that he had done wrong things with the victim, then he told the victim's mother that I had only explained to "H" to stay away from the victim, I have not done anything wrong with the victim. 34. The accused has admitted in the cross-examination that the victim used to talk and meet a person named "H" at night and she did not complain about this in the police station. In the cross- examination, the accused has also admitted that the accused did not tell her parents about talking to "H" at night at home. It is suggested on behalf of the defence to the mother of the victim (PW 2) that he (the accused) had told her that on the date of the incident, H, I and J had come to meet the victim, which the mother of the victim denied. Thus, on one hand, the accused himself admits in his cross-examination that he had not told the victim's parents about meeting "H" and also gives the suggestion of the victim's mother (PW-2) that he himself had gone to the victim's house, then the victim had apologized to the accused, which shows that the accused is not firm on his own defence and this defence appears to be based on mere imagination. 16 35. The defence taken by the accused regarding “H”, “I”, “J” being friends of the victim, coming to meet the victim and “H” coming to meet the victim on the night of the incident, “H” and “I” are included as prosecution witnesses and are examined as PW-5 and PW-8, but no such suggestion has been given by the defence during the cross-examination of “H (PW-5)”, “I (PW-8)” that “H”, “I”, “J” had come to meet the victim on the night of the incident, who were scolded and chased away by the accused. 36. Hence, the defence taken by the accused regarding the neighbour of the victim-H (PW-5) coming to meet the victim at night and the accused scolding H (PW-5) and driving him away is not proved. If "H (PW-5)" had actually gone to meet the victim at night, then H (PW-5), I (PW-8) could also have been questioned in the said defence, but the said defence not being taken from H (PW-5), I (PW-8) makes the defence taken by the accused unreliable. 37. In this case, the statement of the victim (PW-1) has remained unrebutted that when she was going to her aunt's house, the accused dragged her to his house by pressing her mouth and had physical relations with her. The defence taken regarding H (PW-5) going to meet the victim (PW-1) at night, the accused scolding H and driving him away, and telling the above things to the victim's family members is not proved on record, because why would any girl or her mother make any false allegation affecting the 17 reputation and image of their minor daughter merely because she told someone about going to meet her. 38. Although the mother of the victim (PW2) has lodged the first written complaint about the incident on 15.10.2020 and there is a delay of about 23 days in sending the information about the incident, but this delay itself proves the mental condition of the victim (PW-1). When a known person commits a rape crime on a girl, then it is not possible nor is it expected from the girl to immediately inform the police about the incident or to immediately inform her parents. The victim (PW-1) has stated that she did not tell anyone about the incident due to fear. 39. In every circumstance, it is proved that the accused dragged the victim to his house by pressing her mouth, which is also supported by the statements of the victim's neighbour H (PW-5), another neighbour of the victim I (PW-4). It has been proved in the case that the situation on 22.09.2020, the age of the victim was less than eighteen years. On 22.09.2020, the victim was going to her aunt's house, there is no evidence on record that the victim (PW-1) went to the accused herself. Although the victim and the accused were already acquainted as they belonged to the same locality, it is also proved that on 22.09.2020, the accused dragged the victim (PW-1) by pressing her mouth and took her to his house. 18 40. In this regard, it has been provided in Section 361 of the Indian Penal Code that- Section 361 Kidnapping from lawful guardianship: "Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship." 41. Thus, it is proved from the statement of the victim (PW-1) that on the night of the incident, the accused dragged her to his house. This important fact is also proved on record that as on 22.09.2020, the victim was a minor, her age was less than 18 years. "Taking away" a woman below the age of eighteen years without the consent of the guardian is the crime of kidnapping. 42. The victim (PW-1) has stated in paragraph 1 of the main trial that the accused had made physical relations with her in his house. The fact that the accused dragged the victim (PW-1) to his house by pressing her mouth is also proved. 43. The place of incident is marked in red ink on record, the site map is on record as Exhibit P-1, which has also been certified by Inspector Amit Shukla (P-7). In Exhibit P-1, No. - 2 is marked in red ink as the house and room of the accused, where the victim 19 (PW-1) has testified that the accused had sexual relations with her. 44. Dr. Sushma Ekka (PW-3) also stated that on examining the victim on 15.10.2020 at 7.00 p.m., the upper jaw of the victim's mouth was found to be swollen. No external injury marks were found on the victim's body. The victim's secondary sexual characteristics were developing. On examining the genitals, no injury was found in the victim's genitals and no swelling or pain was found and no discharge was found in the vagina. Two slides were prepared from the discharge from the victim's vagina and handed over to the same woman constable for chemical examination. 45. Dr. Sushma Ekka (PW-3) has deposed that the victim was referred to a radiologist and dentist for determining her correct age. Dr. Sushma Ekka (PW-3) has also stated that according to her, there were no signs of immediate sexual assault on the victim. In view of the said deposition, the investigating officer Amit Shukla (PW-7) deposed that the victim's vaginal slide, underwear and the accused's underwear were sent to the Regional Forensic Science Laboratory. It is written that as per this report Exhibit P- 30, semen stains and human sperm were not found in the slide and underwear of the victim, and semen stains and human sperm were found in the underwear of accused Amrit Chauhan. 46. The defence argument is that the absence of any injury marks on the private parts and external parts of the body of the victim and 20 the doctor's finding of hymen intact in Ex.P-10 do not constitute the offence of rape and also the victim has admitted in her cross- examination that she was not injured. 47. The victim (PW-1) has admitted in the cross-examination that she was not injured in the rape incident which she has described as committed by the accused, but the suggestions made to the victim and the confession do not contradict the statement of the victim (PW-1) that the accused took her to his house and had physical relations with her. 48. It is true that no injury marks were found on the private parts of the victim, but just because there is no medical evidence to prove sexual intercourse, it cannot be presumed that the accused is innocent. Medical evidence is not necessary to prove the offence. In girls of 13-14 years, the hymen is firm and does not break. Sexual intercourse is possible with a little penetration, also to constitute the offence of rape it is not necessary that there should be full penetration of the penis with emission of semen and rupture of the hymen. Partial penetration into the labia majora or vagina with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of law, hence it is possible to commit the offence of rape without causing any injury to the genitals or leaving any stain of semen. 49. Thus, there is no reason to disbelieve the evidence of the victim (PW-1) that the accused dragged her to his house by pressing her 21 mouth and had physical relations with her in his house. The evidence of the victim inspires complete confidence and is completely reliable. The supporting evidence of the victim's neighbour - H (PW-5) and another neighbour of the victim - I (PW- 4) is also available on record regarding the accused dragging the victim by pressing her mouth. Establishing physical relations by the accused with the victim will be called rape because it is proved that the victim was a girl below 18 years of age at the time of the incident. Further, having physical relations with the victim is an offence of penetrative sexual assault as the definition of rape in Section 375 of the Code and the definition of penetrative sexual assault in Section 3 of the Act are the same. 50. Section 3 of the POCSO Act defines penetrative sexual assault, which includes: A person is said to commit "penetrative sexual assault" if-- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person. 22 51. The offence under Section 375 of the IPC, provides as follows:- 375. Rape.— A man is said to commit "rape" if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— (First.)— Against her will. (Secondly.) — Without her consent. (Thirdly.) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt, (Fourthly.) — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. 23 (Fifthly.) — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (Sixthly.) — With or without her consent, when she is under eighteen years of age. (Seventhly.) — When she is unable to communicate consent. 52. Thus, the offences under Section 3 of the POCSO Act and Section 375 of the IPC would be those of penetrative sexual assault and rape respectively, if the age of the victim is less than eighteen years and sexual intercourse is established with her. The victim (PW-1) has been proved to be a girl less than 16 years of age at the time of the incident. Though the medical evidence did not reveal any injury marks in the private parts of the victim, but medical evidence is not necessary to prove the offence of rape, partial penetration inside the vagina also constitutes the offence of rape. 53. Amit Shukla, Investigation Officer (PW-7) has stated in his judicial statement that after the medical examination of the victim on 15.10.2020, after the doctor brought and presented a sealed packet containing two slides of the victim and another sealed packet containing the underwear of the victim by the lady constable, Exhibit P-18 was prepared, as told by the mother of the 24 victim, the site of incident was inspected and a sight map (Ex.P-1) was prepared, a written complaint was written to the Judicial Magistrate First Class, Raigarh for recording the statement of the victim under Section 164 Cr.P.C., a complaint was written to the Tehsildar, Raigarh for preparing a site map of the site of incident by the Patwari, the accused was arrested and the arrest slip was prepared, after testing the manhood of the accused, one underwear was brought and presented by the constable and the seizure slip was seized as per Exhibit P-24. 54. Thus, the statement of rape and penetrative sexual assault provided by the victim (PW-1) against the accused at the stage of investigation and trial in respect of the incident dated 22.09.2020 has remained unrebutted, there is no reason to disbelieve the fact that the victim would make a false statement out of irritation at any obstruction put in by the accused. This statement of the victim (PW-1) is true and there is no reason to disbelieve the statement that the accused took the victim to his house on the date of the incident by pressing her mouth and dragging her and committed the crime of rape and penetrative sexual assault. Therefore, the said statement of the victim proves that the crime of rape and penetrative sexual assault has been committed by the accused on the victim below 16 years of age. 55. The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of NCT of Delhi, 2012 (8) SCC 21 held as under:- 25 “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 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 26 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.” 56. 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” 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 27 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.” 57. 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 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 28 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 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. 29 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.” 58. 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 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, 30 short of corroboration, as understood in the context of an accomplice, would suffice.” 59. 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.” 60. 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 31 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.” 61. On the basis of analysis of evidence presented by the prosecution, it is evident that at the time of the incident, the victim was a minor below 16 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 16 years of age, at the time of the incident, kidnapped the victim by pressing her mouth and dragging her to his house, took her out of legal guardianship and committed the crime of 32 penetrative sexual assault including rape. Thus, the said crime of rape, penetrative sexual assault on a minor girl below 16 years of age by the accused falls under the category of aggravated penetrative sexual assault. 62. Lastly, considering the statement of the victim (PW-1) who has specifically stated the act of the present appellant, statement of her mother (PW-2), statement of her neighbours (PW-4 and PW- 5) and further considering the statement of the victim recorded under Section 164 CrPC (Ex.P-3), Dakhil Kharij Register (Ex.P15C), 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 363 of the IPC read with Section 4(2) of the Protection of Children from Sexual Offences Act, 2012. We do not find any illegality and irregularity in the findings recorded by the trial Court. 63. 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. 33 64. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 65. 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/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Manpreet