1 2025:CGHC:6894 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1192 of 2023 Himmat Singh Sagarvanshi Alias Ballu S/o Bodhan Singh Aged About 25 Years R/o Village Ghanora Golden Chowk Ward No. 01, Chowki Padamnabhpur, District Durg, Chhattisgarh. ... Appellant versus State of Chhattisgarh Through Station House OfÏcer Arakshi Kendra Newai District Durg, Chhattisgarh. ... Respondent For Appellant : Mr. Shrestha Gupta, Advocate For Respondent/State : Mr. Topilal Bareth, Panel Lawyer Hon'ble Mr. Ramesh Sinha, Chief Justice Judgment on Board 06.02.2025 1. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 28.07.2022 passed by the learned Additional Session Judge Fourth (F.T.S.C.) Special Judge POCSO Act, Durg, District – Durg (C.G.) in Special Criminal Case (POCSO) No. 38/2019, whereby the trial Court has convicted and sentenced the appellant with a direction to run all the sentences concurrently in the following manner : CONVICTION SENTENCE U/s 363 of IPC Rigorous imprisonment for 1 year with fine of Rs.100/-, in default of payment of fine additional R.I. for 1 month RAJSHEKHAR SONI Digitally signed by RAJSHEKHAR SONI 2 U/s 6 of POCSO Act Rigorous Imprisonment for 10 years with fine of Rs.10,000/-, in default of payment of fine additional R.I. for 1 year 2. Case of the prosecution, in brief, is that the victim boy (PW-01) has lodged a report on 27.01.2019 at Police Station – Nevai to the effect that on 27.01.2019 at about 07:30 pm, he had gone to the grocery shop near Om Mobile Shop with his aunt's son to buy chocolates and they were eating chocolates after buying them, at the same time, a boy came on a motorcycle Hero CG-07-AW-3734, who was wearing a maroon coloured jacket and black coloured lower, and said that let's go to buy a cake. When he said that he would not go, he forcibly made him sit on his motorcycle and took him to the dark bushes under the overbridge and he opened his lower and forcibly put his private part in his mouth and kept it for a long time inside his mouth, due to which the victim vomited and thereafter he also opened his pants and forcibly committed unnatural sexual intercourse with him, simultaneously, he also bit her right cheek and lip with his teeth and said that if he would tell his parents about the incident then he will kill him and sat on him back, due to which he had pain in his back also. He made him sit on his motorcycle and left him in front of Sheetala Temple, then he went to his home and told his parents, aunt and uncle about the incident. The victim said that he was forcibly taken away and a bad things was done with him by the accused, he would recognize the accused by seeing him and the Aunty at the shop has also seen the accused. 3 3. On the above report of the victim boy (PW-01) lodged at Police Station - Nevai, a Hero motorcycle bearing registration No. CG-07- AW-3734 was seized. Against the driver of said vehicle, First Information Report (Ex.P-01) bearing Crime No.24/2019, for the offence punishable under Sections 365, 377 and 506 of the IPC and Sections 04 and 06 of Protection of Children from Sexual Offences Act, 2012 (POSCO Act), was registered and the case was taken into investigation. 4. During the course of investigation, a Spot Map (Ex.P-08) was prepared in presence of witnesses, and the statements of witnesses were recorded. The underwear of the victim was seized in presence of witnesses as per seizure memo (Ex.P-05). For getting medical examination of the victim boy, his underwear seized from him, Memo (Ex.P-14 and Ex.P-15) were sent to Community Health Centre, Utai, respectively. On production of accused/appellant, one underwear was seized in presence of witnesses as per seizure memo (Ex.P-11). For getting medical examination of said underwear seized from accused/appellant, Memo (Ex.P-16) was sent to Community Health Centre, Utai. When constable No.414, R. Nasir Bakhsh, brought from Hospital and presented a sealed packet which was seized in presence of witnesses as per seizure memo (Ex.P-17 and Ex.P-19). Motorcycle No. CG-07-AW-3734 kept for safekeeping in the Police Station was seized as per seizure memo (Ex.P-12) and when the accused/appellant produced the RC book of the said vehicle, and the same was seized as per seizure memo 4 (Ex.P-20). Identification panchnama of the accused was prepared as per (Ex.P-21). 5. During the the course investigation, the accused/appellant was arrested as per arrest memo (Ex.P-21) and information regarding the arrest was given to his family members (Ex.P-22). Application (Ex.P-23) was presented before the Court of Judicial Magistrate First Class, Durg for recording the statement of the victim boy under Section 164 CrPC. The victim child has presented his birth certificate and achievement record of Maitri Vidya Niketan which were seized as per seizure memo (Ex.P-07). The Headmistress of Maitri Vidya Niketan Risali, Bhilai, has presented the mutation register which was seized as per seizure memo (Ex.P-24). For getting the seized items chemically tested, Memorandum (Ex.P-25) was sent to the State Forensic Science Laboratory, Raipur through Superintendent of Police, Durg, and Receipt (Ex.P-25A) was obtained. After completion of the investigation, a charge-sheet was presented against the accused/appellant in the Court of 5th Additional Sessions Judge (FTC), Durg. 6. So as to prove the complicity of the accused/appellant in the crime in question, the prosecution has examined as many as 11 witnesses and exhibited 30 documents in support of its case. Statement of the accused/appellant under Section 313 CrPC was also recorded in which he pleaded his innocence and false implication in the case. The accused did not give any defense evidence in his defence. 5 7. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 28.07.2022 convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment, against which this appeal under Section 374(2) of the CrPC has been preferred by them calling in question the impugned judgment. 8. Learned counsel for the appellant vehemently argued that the learned trial Court has failed to properly appreciate the evidence led by the prosecution and has wrongly convicted the appellant. The prosecution failed to prove the case against the appellant beyond reasonable doubt. The statement of the victim is full of conjectures and surmises and is highly unreliable. The age of the victim has not been properly proved and no ossification test for determining the age has been done which makes the whole case of the prosecution doubtful. Hence, the conviction is liable to be set aside. 9. On the other hand, learned State counsel for the State/respondent submitted that the appellant has committed a heinous crime of rape against minor boy, aged about 10 years 3 months and 07 days and the same has been duly proved by the prosecution beyond reasonable doubt. As such, the judgment of conviction and sentence awarded by the learned trial Court is just and proper warranting no interference. 6 10. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 11. The first question for consideration before this Court would be, whether the trial Court has rightly held that on the date of incident, the victims were minor? 12. When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredient to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years. 13. In Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263, the Hon’ble Supreme Court laid down the guiding principles for determining the age of a child, which read as follows : “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under : “12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or 7 a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof 8 of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW- PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out 9 of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.” 14. In the present case, the prosecution has presented certified copy of Birth Certificate and achievement record of Maitri Vidya Niketan of the victim, which were seized as per seizure memo (Ex.P-07). In both the documents, the date of birth of victim is mentioned as 20.10.2008. The defence has not presented any oral or documentary evidence to refuse the said date of birth, therefore, 10 there is no reason to disbelieve the date of birth of the victim, as 20.10.2008, hence, we are of the considered opinion that the trial Court has rightly held that the date of birth of the victim is 20.10.2008 and his age on the date of incident i.e. 27.01.2019 was 10 years 03 months and 7 days. 15. The next question for consideration is whether the appellant has committed rape on minor victim ? 16. In this regard, the statement of the victim (PW-1) is of much importance. The victim (PW-1) in his statement recorded by the Magistrate under Section 164 of the CrPC has stated that the incident occurred around 6:00 PM, he was buying chocolates with his younger cousin brother (maternal uncle's son) at a shop in Lakshminagar, Risali. The accused uncle arrived on a bike from Risali village and asked the victim to accompany him to buy a cake for a child. When the victim refused, the accused forcibly took him on his bike to a secluded area under the overbridge near Nevai Police Station. It is also stated that the accused removed his pants and underwear, choked the victim, and put his private part into the victim's mouth for a long period, which caused the victim to cry and vomit. The accused also inserted his hand and private part into the victim's anus and bit his cheek and lip. The victim further stated that the accused threatened to kill him if he told his parents about the incident. The accused then dropped the victim off at Shitala Mandir, where he met a Police Officer who took him home. The victim informed his parents, uncle, and aunt 11 about the incident, and his father and uncle took him to Nevai Police Station to lodge a report. The victim had also claimed that he could identify the accused. The victim in his Court statement has narrated the same version which he has stated in his statement recorded under Section 164 CrPC. In his cross- examination, he has denied all the suggestions given by the defence. 17. The father of the victim (PW-2), has stated in his evidence that on 27.01.2019, around 7:30 PM, his son went to buy chocolates with his cousin. The accused/appellant met them outside a shop in Risali and asked the victim to accompany him to buy a birthday cake. Thereafter, the accused took the victim to a secluded area near Maroda Railway Station's over-bridge, where he forcefully committed unnatural sexual intercourse with the victim and put his private part into the victim's mouth by choking him. The victim vomited, and later on the accused dropped him off near Shitala Mandir in Tanki Maroda. 18. Thus, the statement of the victim is also confirmed by the statement of the victim’s father (PW-2), and the statement of the father of the victim (PW-2) also corroborates with the statements of two uncles of the victim (PW-8 and PW-9). The First Information Report (Ex.P-1) also confirms the above statements of the victim, victim's father, as well as the uncles of the victim. 12 19. Investigating Officer B.L. Sahu has also certified that on 27.01.2019 itself, the victim boy along with his father appeared at Nevai Police Station and registered the First Information Report (Ex.P-01) about the incident and signed on it. The Investigating Officer reached the spot on 28.01.2019, and prepared a spot map (Ex.P-09) in front of witnesses, which has also been confirmed by the victim boy (P.W-01) and his father (P.W.-02). 20. The victim boy has also been asked to identify the accused. In this regard, the victim (PW-1) has stated that an uncle had made the accused Himmat Singh stand with four other people and had covered him with a blanket till his neck for identification, then he had identified accused Himmat Singh by placing his hand on him. The said identification proceeding is (Ex.P-06), on which he has certified his signature and has clarified in cross-examination that when he saw the accused for the first time, his face was not covered and he has accepted the suggestion of the defence that the Police had taken him to the jail for identification and has refuted the suggestion that he had seen the accused for the first time in the jail and has clarified in his own statement that he had seen him for the first time when the incident was committed. Thus, there has been no substantial refutation of the statements of the witness in cross-examination. 21. During the course of investigation, grey colour underwear of the victim child was seized by the investigating officer B.L. Sahu, as per seizure memo (Ex.P-05) and maroon colour underwear of the 13 accused was also seized as per seizure memo (Ex.P-11), which has also been confirmed by the testimony of the victim boy (PW- 01) and his father (PW-02). The investigating Officer has also got the medical examination of the victim boy and the accused/appellant and the underwear seized from them done. Confirming the same, Dr. Narendra Goyal (PW-05) has stated that on 28.01.2019, a sealed packet was brought before him for examination by the same constable which contained an underwear, which was resealed after examination and handed back to the same constable advising chemical examination, regarding which the witness' examination report is (Ex.P-15). The said examination reports of the witnesses (Ex.P-14 and Ex.P-15) have not been challenged by the defence in cross-examination. 22. The victim boy and the witnesses have not revealed any circumstances related to the accused being falsely implicated during the evidence, nor has the accused said anything in his statement under Section 313 Cr.P.C. regarding being falsely implicated. In such a situation, there is no reason to disbelieve the said statements of the prosecution witnesses. 23. According to the above stated evidence presented by the prosecution, the statement of the victim boy, who was below 12 years of age at the time of the incident, was not challenged by the defence that the accused lured the victim boy and took him along and inserted his penis in his mouth and anus. Therefore, there is sufficient basis to draw a presumption against the accused in 14 relation to the said crime and the accused has completely failed to refute the said presumption. 24. In the case of Ganesan v. State, reported in (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 prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. 25. In the case of State (NCT of Delhi) v. Pankaj Chaudhary, reported in (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. 26. In the case of Sham Singh v. State of Haryana, reported in (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/his statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her/his testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her/his statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. 15 27. Applying the law laid down by the Supreme Court in the cases (supra) to the facts of the case on hand and as observed hereinabove, I see no reason to doubt the credibility and/or trustworthiness of the victim though no definite opinion regarding sexual intercourse has been given by doctor, who has medically examined the victim, but considering the statement given by the victim (PW-1), supported by the statement of other prosecution witnesses, wherein it has stated that the accused/appellant lured the victim boy and took him along and forcefully committed unnatural sexual intercourse with him. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the victim can be sustained. 28. Thus, it is found proved that the accused, on 27.01.2019 at 7:30 PM, under the bushes near the Railway Station Maroda over- bridge, under the Police Station Nevai, District Durg, took away the minor victim boy (PW-01) and committed aggravated penetrative sexual assault on him by inserting his penis in his mouth and anus, he had also bitten his cheek and lips and threatened to kill him, if he would tell his parents about the incident. 29. The view taken by the learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record and as such, I am of the opinion that in the present case, the only view possible was the one taken by the learned trial Court. 16 30. From the above analysis, I am 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. 31. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 32. The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment and order dated 28.07.2022. 33. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence 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/- (Ramesh Sinha) Chief Justice Rajshekhar