1 2025:CGHC:6462-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 712 of 2023 Babla Marawi S/o Chaitram Marawi Aged About 30 Years (Presently About 31 Years) R/o Padaopara, Kota, Police Station Kota, District : Bilaspur, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House OfÏcer, Police Station Ratanpur, District : Bilaspur, Chhattisgarh ... Respondent For Appellant : Mr. Vivek Kumar Shrivastava, Advocate. For Respondent : Mr. Swajeet Uboweja, Panel Lawyer Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 05/02/2025 1 The appellant has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.) questioning the impugned judgment dated 24.02.2023 passed in Special Criminal Case (POCSO Act) No. 151/2021 by which the learned Additional Sessions Judge, Second Fast Track Special Court, Bilaspur, District Bilaspur, has convicted and sentenced the appellant as under: 2 Conviction under Section Sentence (Rigorous imprisonment) Fine In default of pay- ment of fine addi- tional rigorous imprisonment 363 of the Indian Penal Code (for short, the IPC) 7 years Rs. 1000/- 04 months 366A IPC 10 years Rs. 1000/- 06 months 376 IPC No separate sentence is awarded in light of provisions of Section 42 of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act). 3 / 4 of the POCSO Act 20 years Rs.2000/- 1 year All sentences have been directed to run concurrently. 2 Today, the matter is listed for orders on IA No. 1, which is an application for suspension of sentence and grant of bail to the appellant. However, since the appellant is in jail since 28.08.2021, with the consent of learned counsel appearing for the parties, the matter is heard finally. 3 The appellant-convict was charged for the offences punishable under Sections 363, 366A, 376 (3) of the IPC and Section 3/4 of the POCSO Act alleging that on 14.08.2021 between 10:00 hours to 16:00 hours, he abducted the victim aged 13 years from the custody of her lawful guardian at Police Station Ratanpur, District Bilaspur (CG) without the permission of her lawful guardian and kidnapped the minor victim by taking her with him without the permission of her lawful guardian in order to compel or seduce her for illicit sexual intercourse against her will and committed rape on the victim and committed penetrative sexual assault on the victim who is a girl below 18 years of age. 4 The case of the prosecution, in brief is that the complainant/ informant (PW-3) who is the neighbour of the victim (PW-1) appeared at Police Station, Ratanpur on 14.08.2021 and lodged an oral report to the effect 3 that his neighbour's daughter i.e. the victim, aged 14 years, studies in class 8th and on 14.08.2021 in the morning, she left with her school bag at around 10:00 a.m. and did not return home till 4:00 pm after school was over. The victim was tried to be traced in the nearby areas and the victim's father has gone to Kota, Bilaspur to look for the victim, but the victim could not be found. The victim had left her school bag at her friend's house. She suspected that some unknown person has lured and kidnapped the victim from the legal protection of her parents. The victim's younger sister had told that the victim used to talk to a boy named Babla Pandey and Karan on mobile and they used to come and meet in the village. On the report of the complainant (PW-3), a First Information Report (Exhibit P/6) was registered against an unknown person at Ratanpur Police Station under Crime Number 352/2021 under Section 363 of the IPC. Thereafter, the police investigated the matter, recorded the statement of the witnesses, and other procedural formalities and submitted the charge sheet for trial before the learned trial Court. 5 Charges were framed against the appellant/convict on 30.10.2021 for the offences under Sections 363, 366-A, 376(3) of the IPC and Section 3/4 of the POCSO Act. The appellant abjured the guilt and prayed for trial. 6 In order to bring home the offence, the prosecution examined as many as 13 witnesses namely, the victim (PW-1), mother of the victim (PW-2), neighbour of the victim (PW-3), Dr. Anand Murti Shrivastava (PW-4), Kanhaiya Lal Nirmalkar (PW-5), Dilip Nirmalkar (PW-6), Neeta Yadav (PW-7), Jageshwar Prasad Sahu (PW-8), Shriddhi Jaiswal (PW-9), P.R.Sahu (PW-10), Dr. Poonam Singh (PW-11), Harvinder Singh (PW- 12) and Daya Jaiswani (PW-12) and exhibited as many as 21 exhibits. 4 7 The statement of the appellant/convict was recorded under Section 313 Cr.P.C. wherein he expressed his ignorance about many questions and some of them were denied as well. He stated that he had been falsely implicated in this case. 8 The learned trial Judge, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellant/ accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict. 9 Mr. Vivek Kumar Shrivastava, learned counsel for the appellant/ convict submits that as per version of victim (PW-1), on the date of incident when she along with her friend was going to school, on the way appellant along with his friend came on two bikes and took them to a hut and there appellant committed forcible sexual intercourse with her and while she was being subjected to intercourse, her friend was sitting out of hut with friend of appellant. But, interestingly, this friend of victim has not been cited as prosecution witness although she could have been the best person to depose as to whether appellant had taken the victim inside hut and committed sexual intercourse with her. This shows that such an incident, as alleged by victim, in fact did not take place and that was why friend of the victim was not examined as a witness. Doctor (PW-11), who medically examined the victim has found the victim to be habitual to sexual intercourse and was unable to give any definite opinion regarding recent sexual intercourse with victim and opined that definite opinion can be given based on FSL report. Even the mother (PW-2) of victim has deposed that on the date of incident when the victim returned home, she had told and appellant had teased her. The learned trial Court only on the basis of FSL report which confirms presence of human sperm on clothes, 5 slides and swab of victim held the appellant guilty of commission of rape overlooking the fact that report of Forensic Department so far as accused/appellant was also recorded under Section 313 CrPC in which he pleaded innocence and false implication. In order to prove the guilt of appellant for the offence punishable under Section 363 IPC, prosecution is duty bound to fulfill requirement of 'kidnapping' as defined under Section 361 of IPC but on a bare reading of the statutory language would suggest that if a minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 of IPC. In case at hand, if the testimony of victim (PW-1) is tested in light of above provision, it would be clear that there is no iota of evidence to prove guilt of appellant for the offence under Section 363 of IPC. Victim (PW-1) in her evidence categorically stated that she recognizes appellant, on the date of incident, when she was going to school, on the way appellant came and took her on motorcycle on pretext of taking her to Mahamaya temple, but on the way he took her to a hut and committed sexual intercourse with her. Thus, there is no iota of evidence to show that appellant had enticed her in any manner. Mere fact that appellant took her to temple or hut does not fall within the definition of 'kidnapping' as defined under Section 361 IPC. This apart, there is no other cogent evidence to prove the guilt of appellant for the offence punishable under Section 363 of IPC. Further, the prosecution has failed to prove the age of the victim as below 18 years on the date of incident, as required under the law. In the present case, the age of victim was sought to be proved on the basis of school admission register of the victim but author of said document has not been examined by the prosecution to prove genuineness of the said document. This apart, the 6 investigating agency could have established the age of victim by conducting ossification test, but, admittedly, that test has not been conducted and in these circumstances, the appellant cannot be held liable for the offence under Section 363 IPC. As there is no conclusive proof showing that the victim was below 18 years of age at the relevant time, the conviction of appellant under the provisions of the POCSO Act is also bad in law for the reason that to make out offence punishable under Section 3/4 of POCSO Act, prosecution is required to prove that the victim, at relevant time of the alleged penetrative sexual assault on her, was below 18 years of age. In view of the above submissions, Mr. Shrivastava prays that this appeal may be allowed and the appellant/convict may be acquitted of the charges. 10 On the other hand, Mr.Swajeet Uboweja, learned Panel Lawyer appearing for the State/respondent submits that the learned trial Court was fully justified in convicting and sentencing the convict/appellant as mentioned in the opening paragraph. There is ample evidence on record to hold the appellant guilty of the offence. The order passed by the learned trial Court needs no interference and the appeal filed by the convict/appellant deserves to be be dismissed. 11 We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 12 In the case in hand, the FIR was lodged regarding missing of the victim by the neighbour (PW-3) promptly on 14.08.2021 at 23:40 hours and the incident is said to have taken place on the same day in between 10:00 hours to 16:00 hours. When the victim returned back home after being raped forcefully by the appellant/convict and narrated the incident to her 7 parents, the matter was further investigated and the appellant was arrested on 28.08.2021 at 12:15 hours and its information was given to the mother of the appellant vide Exhibit P/19. The appellant as well as the victim were medically examined by the Doctors. 13 The Doctor, namely Dr. Poonam Singh (PW-11) had examined the victim and opined vide her report (Exhibit P/17) that intercourse has been done but confirmed opinion can be given only after FSL report. She had advised for radiological test for determination of the age. The slides prepared, swab and the clothes of the victim were sent to the FSL for examination and the report (Exhibit P/21) states that in Articles A-slides, Article B-swab, Article C-underwear of the victim, Article D-innerwear of the victim, semen stains and human sperms were found, however, the semen stains found in Articles C and D were not sufÏcient for serum examination. 14 The appellant/convict was examined by Dr. Anand Murti Shrivastava (PW-4) who had opined vide his report (Exhibit P/9) that on examination, he found the secondary sexual characters of the appellant were well developed, creamasteric reflex was also present and there was nothing to suggest that the appellant/convict was incapable of performing sexual intercourse. 15 The victim in her statement under Section 164 Cr.P.C. has clearly deposed that the appellant lured the victim to take her to Mahamaya Temple for darshan but instead of taking to the temple, he took her to a hut where he forcibly committed sexual intercourse. In her deposition before the trial Court, she has clearly narrated the sequence of events and there is no difference in the statement under Section 164 Cr.P.C. and the statement before the learned trial Court. The FIR was lodged by the 8 neighbour (PW-3) of the victim and that too, against an unknown person. When the victim came back to house and narrated the entire incident to her parents, the appellant/convict was arrested. There is no reason as to why the victim would falsely implicate the appellant. 16 So far as the age of the victim is concerned, the victim has stated on the date of incident, she was 14 years of age. Her mother (PW-2) also stated that the victim was aged 14 years on the date of incident. Jageshwar Prasad Sahu (PW-8) is the Incharge Head Master of the school. According to the Admission/Discharge register, the date of birth of the victim was stated to be 02.08.2008 and the date of admission in Class I was 25.06.2014. The school in which the victim was studying was a government school and the Head Master is also a public servant and as such, the records maintained by a public servant comes within the purview of a public document and there appears to be no reason to disbelieve the said document. Hence,the finding arrived at by the learned trial Court with respect to the age of the victim being 13 years and 12 days on the date of incident, does not warrant any interference and we also concur with the same. 17 The MLC report, the FSL report coupled with the statement of the victim herself, clearly establishes the fact that it is the appellant who had committed forceful sexual intercourse against the victim. Further, the documentary evidence in the form of admission/discharge register also establishes the fact that the victim was a minor on the date of incident. We are in respectful agreement with the findings arrived at by the learned trial Court and are of the considered opinion that no interference is warranted with the judgment of conviction and order of sentence passed by the learned trial Court. 9 18 In the case of Ganesan v. State, (2020) 10 SCC 573, the Supreme Court observed and held that that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the victim is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. 19 In the case of State (NCT of Delhi) v. Pankaj Chaudhary, {(2019) 11 SCC 575}, it was observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. 20 In the case of Sham Singh v. State of Haryana, {(2018) 18 SCC 34}, the Supreme Court observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difÏculty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. 21 Applying the law laid down by the Supreme Court in the cases (supra) to the facts of the case on hand and as observed herein above, we see no reason to doubt the credibility and/or trustworthiness of the victim. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the victim can be sustained. 10 22 From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/ convict. 23 Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 24 The appellant is stated to be in jail. He shall serve out the remaining part of the sentence as has been awarded to him by the learned trial Court. 25 Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentences 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. 26 Let a certified copy of this judgment alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.02.06 14:41:05 +0530