1 2025:CGHC:34788-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 755 of 2024 Sumit Toppo S/o Shri Lakhan Toppo Aged About 24 Years R/o Village Binjpur, P.S. Bhandaria, Dist. Gadhwa, Present Address- Mathpara, Police Chowki Mnipur, P.S. Ambikapur, Dist. Sarguja, C.G. ...Appellant versus State Of Chhattisgarh Through Police Station, Ambikapur, Dist. Sarguja, C.G. ... Respondent For Appellant : Mr.Rajesh Roshan Singh, Advocate For Respondent : Mr.Hariom Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, CJ 22/07/2025 1. This criminal appeal arises out of the judgment of conviction and order of sentence dated 3.2.2024 passed by the Additional Sessions Judge, Fast Track Special Court (POCSO Act), Ambikapur, in Special Criminal POCSO Case No.82/2019, whereby the appellant has been convicted for offence under Sections 363, 366, 344, 376(3) of the Indian Penal Code BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.07.23 10:42:24 +0530 2 (hereinafter called as ‘IPC’) and Section 5(B)/6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as ‘POSCO Act’) and sentenced to undergo RI for three years and fine of Rs.200/-, in default of payment of fine to further undergo SI for one month, RI for five years and fine of Rs.200/-, in default of payment of fine to further undergo SI for one month, RI for one year and fine of Rs.200/-, in default of payment of fine to further undergo SI for one month, RI for twenty years and fine of Rs.200/-, in default of payment of fine to further undergo SI for two months and RI for twenty years and fine of Rs.200/-, in default two months respectively. 2. The prosecution story, in brief, is that on 03.11.2019 father of the victim appeared at Police Outpost Manipur and lodged the report stating inter-alia that he has been living in Mathpara Basti since 7- 8 years and is a shopkeeper. His daughter Jyoti is studying in class IX in Shikshan Sansthan Darripara. His 13 year old minor daughter had gone to village Baniyatikara Police Station Bhatgaon with her aunt on 29.10.2019. On 01.11.2019 at 7.30 A.M., her daughter was going to Ambikapur from village Baniyatikara in Shatabdi bus. The aunt of the victim had called him after making her sit in the bus. On reaching Ambikapur at 10.00 A.M., the victim asked for mobile from the driver and called her aunt to ask where she should get down. Her aunt asked her to get down at Bilaspur Chowk and called the victim’s father to bring the victim. Then the complainant came to Bilaspur Chowk to pick up his daughter, but 3 his daughter was not there and when he did not see his daughter nearby, he went to the bus stand and enquired. The driver told him that he had dropped the victim at Bilaspur Chowk. When he searched again, he did not find the victim. Then he suspected that some unknown person had lured and taken away his minor daughter and reported the matter to the police station. On the basis of the complaint lodged by the victim’s father, First Information Report (Ex.P-1) was registered at zero in Police Outpost Manipur. When the said First Information Report was sent to Police Station Ambikapur for numbering, First Information Report (Ex.P-20) was registered under Section 363 of the Indian Penal Code under Crime No. 659/2019 at Police Station Ambikapur and the case was taken up for investigation. 3. Witness Head Constable Arun Gupta (PW-9) through the statement of the complainant on the basis of oral complaint dated 03.11.2019 at Police Outpost Manipur registered the First Information Report (Ex.P.-20) at Police Station Ambikapur under Crime No. 659/2019 and the counter complaint of the same was sent to the Chief Judicial Magistrate, Ambikapur and acknowledgment Ex.P.-20A was received and while registering the First Information Report, the certified copy of the mark-sheet of Class VIII of the previous secondary school of the victim was submitted vide Ex.P.-21, which has been attached in the case. 4 4. During the investigation, the statement of the father of the victim was recorded by the investigating officer Sub-Inspector Anil Singh Assistant (PW-07) as told by him. On 13.11.2019, during the recovery of the missing person, on the information of the informer, the victim was recovered from village Binjpur, Police Station Bhandaria, District Garhwa and recovery panchnama Ex.P-3 was prepared. Vaginal slide and panty of the victim were seized and seizure sheet Ex.P-5 was prepared. 5. During the investigation, after the recovery of the victim related to Crime No.659/2019 of Police Outpost Manipur by the investigating officer Sub Inspector Pramod Kumar Yadav (PW-08), after receiving the case diary of the case, before the examination of the victim, consent Ex.P.-4 and Ex.P.-10 was obtained from the victim and her father and written complaint Ex.P.-14 was sent to the lady medical officer of District Hospital, Ambikapur. The appellant was arrested on 14.11.2019 and arrest memo Ex.P.-9 was prepared and information of arrest was given to the father of the appellant as per Ex.P.-9A. Complaint (Ex.P.-15) was sent to the District Hospital, Ambikapur for medical examination of the appellant. 6. Spot map of the incident was prepared vide Ex.P-2. Honda Modern Motorcycle No. CG 15 DC 6751 was seized and seizure memo (Ex.P-7) was prepared. The hair of the appellant and the blood sample of the EDTA slide taken by the doctor were seized vide seizure memo (Ex.P-6). A notice was issued to the appellant 5 to produce the documents of the vehicle. A report was sent to the Judicial Magistrate First Class, Ambikapur vide Ex.P-17 for recording the statement of the victim under Section 164 CrPC. On being presented by the Principal Anju Gupta, a certified copy of dakhal-kharij Register of the victim in which the date of birth of the victim is mentioned as 07.07.2006 was prepared and seized vide seizure memo (Ex.P-8). Through the Superintendent of Police, Surguja, report Ex.P.-18 was sent to the Joint Director, Regional Forensic Forensic Science Laboratory, Ambikapur, for chemical testing of the confiscated property and receipt Ex.P.-18A was received and chemical test report Ex.P.-19 was received, the acknowledgment receipt of which is Ex.P.-19A. The statement of the victim was recorded by woman inspector Asha Tiki, women police station, Ambikapur. The statements of the witnesses were recorded as per their statement and after complete investigation, the charge sheet was presented in the court. 7. The trial Court prepared a charge sheet against the appellant under Sections 363, 366, 344, 376(2) (g), 376(3), 506 (Part II) of the Indian Penal Code and Section 5(B)/6 of the Protection of Children from Sexual Offences Act, 2012 and the appellant was read out and explained the charge to him, but the appellant denied the charges and claimed trial. 8. In order to establish the charge against the appellant, the prosecution examined as many as 9 witnesses and exhibited the 6 documents (Exs.P-1 to P-21) . 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 the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 9. Learned counsel for the appellant submits that learned Special Judge ought to have appreciated with respect to the age of the victim found to be 13 years and 3 months, whereas in the Aadhar Card the age of the victim is mentioned as 15 years, which creates suspicious about the correct age of the victim. He further submits that learned trial Court failed to consider that as per the deposition of Dr.Snehlata Tirki (PW-3) whom has deposed before the trial Court that the victim was found to be habitual of sexual intercourse and neither any injury was found on the person of the victim. He also submits that there is material illegality in the judgment of conviction and order of sentence passed by learned trial Court, therefore, the appellant ought to have acquitted. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 10. 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 7 reasonable doubt and the victim (PW-2) has clearly deposed the conduct of the appellant in her statement recorded under Section 164 CrPC and in the Court statement and learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant as mentioned above, in which no interference is called for. 11. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 12. The issue that arises for consideration in the present appeal is whether the testimony of the victim deserves acceptance and whether the prosecution has established the case of the appellant beyond reasonable doubt. 13. 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 victim 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. 14. Insofar as, age of the victim on the date of the commission of the offence is concerned, she was admittedly 13 years old at the time of the unsavory incident. 8 15. Anju Gupta (PW-5) is Principal of Jyoti Shiksha Santhan, Darripara, Ambikapur where the victim was studying. In para 2 of her statement, she has stated that today she has brought with her the original dakhil-kharij register maintained by their school, in which entries related to admission No.208 to 758 of children from session 2005 to 2022 have been recorded. In para 4 of her evidence, she has stated that on 10.12.2019 she gave certified copy of dakhil-kharij register regarding the date of birth of the victim to the police, which was seized by the police in presence of witnesses. The seizure memo is Ex.P-8, on which her signatures are there from parts B to B. In para 5, she has stated that she has brought with her the original dakhil-kharij register on whose Serial No.706 the date of birth of the victim is recorded as 07.07.2006. Original dakhil-kharij register is Ex.P-13, on which her signature is there in part A. The attested copy of the above given by her is Ex.P-13C, on which her signature is there in Part A. The victim took admission in Class IX in their school on 12.07.2019 and left the school in class IX on 07.11.2019. 16. 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 on 01.11.2019 she was returning to Ambikapur from her grandmother's house in village Baniyatikri. On reaching Ambikapur bus stand, she called her aunt from the bus driver's mobile and asked that she has reached Ambikapur, where should she get down. Then her aunt Sunita Devangan told 9 her to get down at Bilaspur Chowk. She had also told her aunt to send her father to Bilaspur Chowk to pick her up. When the bus reached Bilaspur Chowk, she got down at Bilaspur Chowk. She waited for her father at Bilaspur Chowk for 2-3 minutes. Then Sumit Toppo came there on her father's motorcycle. Her father had given his motorcycle to Sumit Toppo to drive for a few days. Sumit Toppo told her that her father has sent him to pick her up, come he will drop her, then she sat on his bike. Meanwhile Sumit Toppo told her that he has some work near the bus stand, after finishing the work he will drop her home. He took her to the bus stand on his bike and started taking her further. Then she asked him why he is taking her further, she has to go home. Then he started threatening her that sit quietly behind him, otherwise he will throw her under the bike. She became quiet due to fear. In para 4 of her statement, she has stated that Sumit Toppo took her to his village Binjpur and locked her in a room. When she protested and asked him why he brought her here, drop her at her house, give her mobile, she want to talk to her family. Then he pacified her and ran away and did not even give her mobile. After a while he brought her food. When she did not eat the food and started crying, Sumit Toppo again started threatening her that he will cut her into pieces and throw her away, she will not even know. He locked her in the room and went somewhere. After some time Sumit Toppo came again and started forcing himself on her. He raped her forcefully. She protested and refused a lot. But 10 he did not listen. He raped her forcefully, after that he locked her in the room and went away. He came back again at night and brought food for her. When she did not eat the food, he started shouting and scolding her loudly. She did not eat the food and slept as it was. Sumit also slept with her. The next day her parents came to Sumit's house looking for her, then Sumit locked her in the room and told her parents that he did not know where she was. Sumit kept her hidden in his own house from 01.11.2019 to 13.11.2019 and continuously forced her to have physical relations with him and said that he would marry her. On the morning of 13.11.2019 he told her that he was going to Ambikapur to arrange some money, and once the money was arranged, he would marry her and then he locked the door from outside and went away. In para 7, she has stated that on 13.11.2019 her parents reached Sumit’s house with the police and broke the lock from outside and took her out from inside the room, then she told the whole story to her parents and the police and came back home with them. 17. The prosecutrix has been examined as (PW-2). In para 3 of her evidence, she has stated that the appellant lived in a rented house. She used to call him uncle and talk to him sometimes. On 29.10.2019, she went to her aunt Sunita Dewangan's house in Baniya Tikri to meet her grandparents and on 1st November 2019, she came alone to Ambikapur by bus and got down at Bilaspur Chowk at around 10 A.M. she called her aunt and told her that 11 she has reached Bilaspur Chowk, send her father to pick her up. In para 4, she has stated that she waited for her father for some time, but her father did not come, and the appellant came to pick her up with her father's motorcycle, so she sat in the appellant's vehicle, then the appellant told her that he had to buy something towards the new bus stand, then the appellant took her to Naya bus stand and from there he took the vehicle further, then she asked where he is taking her, then the appellant asked her to sit quietly. Then she kept telling the appellant that she do not have to go anywhere, but the appellant did not listen and threatening her took her further to his house in village Binjpur, Police Station- Bhandaria, Jharkhand. At that time it was 12-01 in the afternoon. In para 5 of her evidence, she has stated that the appellant took her to his house and locked her in a room and brought food for her, then she told the appellant that she do not want to eat food, she want to go home and she asked to talk to her parents, then the appellant did not give her the phone and started scolding and threatening her and said that he will kill her and closed the door of the room. After some time, the appellant again came to her room and torn her clothes and did wrong things (physical relations) with her and the appellant was telling her that he will marry her and forbade her to tell anyone. After doing wrong things with her, the appellant closed the door of the room and went away. That night also the appellant brought her food, but she did not eat food and 12 the appellant was in her room at night also and again did wrong things with her in the morning. 18. Father of the victim (PW-1) has stated in para 9 of his evidence that the victim told that the appellant lured her from Bilaspur Chowk by telling her that her father had sent him here. He took her on his motorcycle to his village Jharkhand, Bhandaria and intimidated her and threatened to kill her. He did not give her food for two days and took off all her clothes and had sexual relations with her. The appellant kept the victim in his house in Jharkhand for three to four days. 19. Now coming to the medical evidence adduced; the medical opinion contained in the MLC report dated 13.11.2019, it was opined that no injury over body and perineum (private part). Secondary sexual character well developed. Hymen old healed ruptured. Two slide prepared from vaginal serration. She is habitual for sexual intercourse for resent intercourse. It’s opinion after examination of these slide, pack and sealed handed over same constable for presence of spermatozoa. Namuna seal also handed over to same constable. Nevi blue panty No.85 cm from xxx. It’s lower side white stain present. 20. 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 13 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 can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by 14 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.” 21. 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 of a child stipulates that where an offender commits penetrative sexual assault on a child, by taking 15 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.” 22. 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 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 16 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. 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. 17 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.” 23. 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, short of corroboration, as understood in the context of an accomplice, would suffice.” 18 24. 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.” 25. 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 19 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.” 26. Considering the statement of the victim (PW-2) who has specifically stated the act of the appellant, statement of Principal Anju Gupta (PW-5), further considering the statement of the prosecutrix recorded under Section 164 CrPC (Ex.P-11), MLC report of the victim (Ex.P-12) conducted by Dr.Snehlata Tirki (PW-3), 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 learned Special Judge has rightly convicted and sentenced the appellant as mentioned above. We do not find any illegality and irregularity in the findings recorded by the trial Court. 20 27. 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. 28. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 29. 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. 30. 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/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Bablu