1 2025:CGHC:45776-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1076 of 2022 Shankar Gupta S/o Radheshyam Gupta Aged About 50 Years R/o Sakalo, Thana - Gandhi Nagar, Distt. Sarguja Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station - Gandhi Nagar, (Village), Distt. Sarguja Chhattisgarh ... Respondent For Appellant : Mr. Deepak Jain, Advocate For Respondent : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, CJ 9/9/2025 1. This criminal appeal arises out of the judgment of conviction and order of sentence dated 7.3.2022 passed by the Additional Sessions Judge, Fast Track, Special Court (POCSO Act), Ambikapur, District Surguja in Special Session Case (POCSO) No.49/2018, whereby the appellant has been convicted for offences under Sections 342, 354, 324, 376AB of the Indian Penal BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.09.09 17:34:20 +0530 2 Code (hereinafter called as ‘IPC’) and Section 3(a), 3(b) read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as ‘POSCO’) and sentenced to undergo RI for one year and fine of Rs.500/-, in default of payment of fine to further undergo RI for two months, RI for five years and fine of Rs.1000/-, in default of payment of fine to further undergo RI for six months, RI for three years and fine of Rs.500/-, in default of payment of fine to further undergo RI for three months, imprisonment for life (till natural death) and fine of Rs.5000/- and RI for ten years and fine of Rs.2000/-, in default of payment of fine to further undergo RI for one year. 2. The prosecution story, in brief, is that on 28.06.2018, the victim's mother/complainant submitted a written report at Gandhinagar Police Station. The report stated that appellant Shankar Gupta has a house and shop next to their home. The victim, her 3-year- old daughter, often went to the appellant’s house to play. On 27.06.2018, the victim's father was in Korba for personal work, and the appellant’s family was also not at home. As was her daily routine, the victim went to the neighbor's house to play at around 3:00 P.M. on 27.06.2018 and the complainant became busy with household chores. At around 4:00 P.M., the victim came back crying. When the complainant asked what happened, the victim said that "Bade Papa" Shankar called her inside the house to give her sweets, closed the door, made her lie down on the bed, bit her on the chest, asked her to hold his private part (penis), and put his 3 finger in her private part, which hurt. The victim's mother/complainant then took off the child's clothes and saw that the area near her chest/breast was red, and her private part was also red. She then told the neighbors Anita, Shesh Kunwar, and Sumitra about the incident. On 28.06.2018, when her husband came home, she told him the whole story. 3. Based on the complainant's written report (Ex.P-2), a First Information Report (FIR) (Ex.P-3) was registered at Gandhinagar Police Station, bearing Crime No.156/2018, under Section 354 of the IPC and Sections 7/8 of the POCSO Act. The case was then taken up for investigation. During the investigation, Sub-Inspector Abdul Munaf (PW-7) and Constable Arvind Singh (No. 529) seized the victim's nursery class report card and Aadhaar card and prepared a seizure memo (Ex.P-9). A site inspection report (Ex.P-5) was prepared at the scene of the crime based on the complainant's instructions. Statements of the witnesses were recorded as per their accounts. The accused was arrested, and an arrest memo (Ex.P-10) was prepared. The appellant’s wife, Smt. Munni Devi, was informed of the arrest as per the arrest intimation memo (Ex.P-10A). A request (Ex.P-11) was sent to the Tehsildar of Ambikapur to provide a Patwari map of the crime scene. The statements of the victim, her mother, and her father were recorded under Section 164 of the Code of Criminal Procedure, and these were marked as Ex.P-6, P-7 and P-13, respectively. A letter (Ex.P-14) was sent to the Principal of Delhi 4 Public School, Sargawan, to provide the school's dakhil kharij register regarding the victim's date of birth. Subsequently, educational documents (Exs.P-15 and P-16) and a certified copy of the victim's birth certificate (Ex.P-17) were obtained. 4. During the investigation, Sub-Inspector Abdul Munaf (PW-7) noted that Assistant Sub-Inspector Sanjay Shrivastava had recorded the First Information Report (FIR) (Ex.P-3) bearing Crime No.156/2018 under Section 354 of the IPC and Sections 7 and 8 of the POCSO Act. This was based on the written complaint (Ex.P-2) given by the victim's mother/complainant at Gandhinagar Police Station regarding the sexual offence committed by the appellant against her minor daughter. Assistant Sub-Inspector Sanjay Srivastava had also sent a request (Ex.P-4A) to the Medical Officer of District Hospital, Ambikapur, to examine the victim's injuries and had received the medical examination report. After the investigation was completed, the charge-sheet was filed against the appellant. 5. The trial Court prepared a charge-sheet against the accused/appellant under Sections 342, 354, 376(A)(B), and 324 of the IPC and Sections 3(A)/4, 3(B)/4, and 5(D)/6 of the POCSO Act, 2012. After the charges were read out and explained to the accused, he pleaded not guilty and claimed a trial. 6. In order to establish the charge against the appellant, the prosecution examined as many as 11 witnesses and exhibited the 5 documents (Exs.P-1 to P-18) . 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. 7. Learned counsel for the appellant submits that the impugned judgment passed by the trial Court is bad in law and facts on record. To determine the guilt of the appellant, it is essential to consider whether the prosecution has led unimpeachable evidence to establish that the appellant sexually assaulted the victim. The prosecution's evidence must be scrutinized to determine if it leads to an irresistible conclusion consistent only with the hypothesis of guilt of the appellant and inconsistent with his innocence. He further submits that there is no evidence to establish that the appellant sexually assaulted the victim. In the absence of clinching evidence, it would not be safe to convict the appellant under Sections 342, 354, 324, and 376(AB) of the IPC and Sections 3(a) and 3(b) of the POCSO Act. The prosecution must establish the guilt of the accused/appellant beyond all reasonable doubt. The evidence must collectively point only to the guilt of the accused/appellant without leaving any scope for doubt. He also submits that learned trial Court has wrongly appreciated the evidence available on record and convicted the appellant 6 under the aforementioned sections. The trial Court has acted with material irregularities and without considering the evidence on record, has held the appellant guilty based on conjecture and surmises. He contended that the finding of learned trial Court is erroneous and contrary to the rule of prudence. The judgment of conviction and order of sentence passed by the trial Court is based on its own imagination and is not supported by the principles of law. The appellant is an innocent person and has been falsely implicated in the present case. Therefore, the appellant deserves to be acquitted. 8. 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-3) 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, in which no interference is called for. 9. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 10. The issue that arises for consideration in the present appeal is whether the testimony of the victim deserves acceptance and whether the prosecution has established the case of the appellant beyond reasonable doubt. 7 11. It is pertinent to observe that the question whether conviction of the appellant 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. 12. Insofar as, age of the victim on the date of the commission of the offence is concerned, she was admittedly 3 years 3 months old at the time of the unsavory incident. 13. Pradeep Kumar Rai (PW-10) is the Principal of New Delhi Public School, Sakalo where the victim was studying. In para 1 of his statement, he has stated that he has been working as the Principal of Delhi Public School, Sakali, Police Station Gandhi Nagar, District Sarguja, Chhattisgarh, from 2015 to the present. In para 2, he has stated that today, he has brought the dakhil kharij register maintained by their school, which contains entries from page 1 to 164, with admission numbers 647 to 1027 for the academic sessions 2014-2019. Police station Gandhi Nagar, in connection with Crime No.156/2018, had requested the dakhil kharij register related to the birth details of the victim, who was a student of their school. The requisition is Ex. P-14. Pursuant to the requisition, on 28.07.2018, he provided a certified copy of the 8 dakhil kharij register to constable Arvind Singh, which showed the victim's date of birth as 13.03.2015. The seizure memo is Ex. P-9. He also provided a certified copy of the student's copy, bearing number RTE 201800019125, issued by the School Education Department, Chhattisgarh Government, which is Ex. P-15 and P-16, bearing his signatures. Additionally, he provided a certified copy of the birth certificate, which is Ex.P-17, bearing his signatures. He stated that today, he has brought the original dakhil kharij register, which shows the victim's date of birth as 31.03.2015, at serial number 976. The original dakhil kharij register is Exhibit P-19. The victim took admission in their school on 02.07.2018, in Nursery class and is currently studying in their school. In para 6 of his cross-examination, he has denied that he did not receive any requisition for dakhil kharij register. He has further denied that he did not provide any documents related to the victim's date of birth to the constable. He has also denied that the victim's parents did not submit a birth certificate at the time of admission and he did not provide a certified copy of the student's copy, bearing number RTE 201800019125, to the constable. 14. The victim in her Section 164 CrPC statement (Ex.P-6) recorded by the Judicial Magistrate First Class, Ambikapur has stated that Shankar Gupta lives near her house. She had gone to his house to play, then Shankar Gupta called her inside his house to feed her almonds and after spreading a plank/mat, started touching her body and biting her breast with his teeth and put his finger in her 9 urinary tract and made her hold his penis and was asking her to drink his vein (penis) in her urinary tract. Then she felt pain, so she told Shankar Gupta that Bade Papa she will come after drinking water and after saying this she went to her house and told her mother everything. 15. The victim has been examined as (PW-3). In para 1 of her statement, she has stated that she know Baniya, whom she call "Bada" (big one/elder). The photo of the appellant in the arrest memo was shown to the witness, who identified him as Baniya and "Bada". She play with toys at school and at home. When asked, "Did Baniya do anything to you?", the witness nodded her head forward in the affirmative. She had gone to Bada's house to play when Bada touched both of her breasts. The witness touched both of her breasts one after the other to show this. The witness pointed to her private part with the finger of her left hand and said that Bada was touching her there, which was hurting both of her breasts. The witness then touched her breasts to show the places. In para 2 of her evidence, she has stated that she does not know that her Bada Papa's name is Shankar. The witness identified the appellant when his photo was shown to her. When asked, "Did Bada make her lie on the bed and bite her chest with his teeth?", the witness nodded her head forward in the affirmative. When asked, "Did Baniya put his finger in her private part?", the witness nodded her head forward in the affirmative. When asked, "Did Baniya ask her to take his private part (penis) 10 in her mouth at the same time?", the witness nodded her head forward in the affirmative. When asked, "Have you given a statement in court before?", the witness nodded her head forward in the affirmative. When asked, "Did the Magistrate Madam question her about the incident before this?", the witness nodded her head forward in the affirmative. 16. Mother of the victim (PW-2) has stated in para 1 of her evidence that she know the appellant. She also know the victim, who is her daughter. At the time of the incident, she was 3 years old. The incident occurred approximately one year ago, during the month of Chaitra. On the day of the incident, she had just returned after enrolling her daughter in Delhi Public School, Sakalo. Around 4:00 PM, her daughter said she was going to her elder uncle’s house (appellant Shankar Gupta) to play. About an hour later, she came home crying from her elder father (appellant’s) house and told that her elder father appellant had locked her in the room and was scratching her chest and there was a touch mark on her daughter’s chest. Her daughter victim also told her that her elder father accused had inserted his finger in her urination area. Apart from this, her daughter victim also told her that the appellant was making her daughter victim suck his penis by making her sleep on a mat in his room. In para 2 of her evidence, she has stated that due to the appellant biting her daughter’s chest with his teeth and putting his finger in the urination area, her daughter was having pain in her body and she had fever. The appellant had bitten both 11 the chests of her daughter, the victim, due to which, there were marks of biting on both the chests. After this, she took her daughter in her lap and went to the house of the appellant and asked him why he did this to her daughter, then the appellant said that he did not do this and closed the door of his house. 17. Dr.Snehlata Tirki (PW-6) has stated in her evidence that there were crescent shaped marks of upper and lower human teeth near the right nipple. The victim was complaining of pain in her genitals, but no injury was seen. The doctor has opined that the above mentioned bite marks were within 24 hours. The report is Ex.P-8. 18. The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of NCT of Delhi, 2012 (8) SCC 21 held as under:- “22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from 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. 12 There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 13 19. 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 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 14 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.” 20. 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 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 15 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. 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.” 21. 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 16 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.” 22. 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 17 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.” 23. 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 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 18 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.” 24.Considering the statement of the victim (PW-3) who has specifically stated the act of the present appellant, statement of her mother (PW-2), statement of Principal Pradeep Kumar Rai (PW-10), further considering the statement of the prosecutrix recorded under Section 164 CrPC (Ex.P-6), MLC report of the victim (Ex.P-8) conducted by Smt.Snehlata Tirki (PW-6), her birth certificate (Ex.P-17) in which her date of birth has been mentioned as 31.03.2015, 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 aforementioned. We do not find any illegality and infirmity in the findings recorded by the trial Court. 25. 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. 19 26. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 27. Registry is directed to 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. 28. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Bablu