1 2025:CGHC:13874 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1228 of 2023 Guruwar @ Sheikhi Kanwar S/o Umend Singh Kanwar, Aged About 24 Years R/o. Sukhbasi Para, Barpalli, P.S. Shyang, District Korba Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through Police Station Shyang, Korba, District Korba Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Anshul Tiwari, Advocate. For Respondent(s) : Mr. Bharat Gulbani, Panel Lawyer. Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 22/03/2025 1. Though, today the present appeal has been listed for hearing on I.A. No.1 of 2023, which is an application for suspension of sentence and grant of bail, but with the consent of learned counsel for the parties and considering the period of detention of the appellant, the appeal is heard finally. 2. Accordingly, I.A. No.01 of 2023 stands disposed of. AKHILESH KUMAR DEWANGAN Digitally signed by AKHILESH KUMAR DEWANGAN 2 3. This appeals is directed against the judgment of conviction and order of sentence dated 22.05.2023 passed by the Additional Sessions Judge, FTSC (POSCO) Korba, District – Korba (C.G.) in Special Case (POSCO) No.56/2021, whereby the appellant has been convicted and sentenced in following manner :- CONVICTION SENTENCE Under Section 451 of the Indian Penal Code RI for 2 years and fine of Rs.500/-, in default of payment of fine to further undergo RI for 6 months. Under Section 354 of the Indian Penal Code RI for 5 years and fine of Rs.500/-, in default of payment of fine to further undergo RI for 6 months. Under Section 323 of the Indian Penal Code RI for 1 year and fine of Rs.500/-, in default of payment of fine to further undergo RI for 6 months. Under Section 10 of the Protection of Children from Sexual Offences Act (POCSO Act), 2012 RI for 7 years and fine of Rs.500/-, in default of payment of fine to further undergo RI for 6 months. (All the sentences were directed to be run concurrently) 4. Case of the prosecution, in brief, is that the complainant/victim (PW-1) verbally informed the Syang Police Station in Korba on July 20, 2021, at approximately 11:30 A.M. alleging that on July 19, 2021, at around 2:00 P.M., she was at her home with her friend when her friend asked her to go to her house to cook. The victim went to her friend's house, where her friend was cooking, and the victim was sitting there. About 20 minutes later, the accused arrived, praised her and forcibly grabbed the victim's 3 chest with both hands, against her will, and started kissing her cheeks and lips. The victim pushed the accused away and returned home with her friend, where her sister (PW-3) was also present. Afterwards, the accused followed the victim to her home and again forcibly assaulted her, despite her resistance, with the intention of disgracing her. He grabbed her waist, kissed her back and cheeks, and when the victim protested, he grabbed her hair and pushed her against the wall, causing her head and chest to hurt. 5. The friend of victim and younger sister intervened, rescuing her, and when the brother of victim (PW-2) and sister-in-law returned home, the victim informed them about the incident. Based on the victim's statement, the in-charge of Syang Police Station, Korba, Chief Constable Ishwar Singh Rajput (PW-7), filed an FIR under Sections 451, 354, 323 of the Indian Penal Code and Section 8 of the POCSO Act. During the investigation, on July 20, 2021, he prepared a Site Plan (Exhibit P-2) as per the victim's statement and sent the victim for Medical examination to the Primary Health Center, Korba, through Woman Constable No. 904, Kavita Paikra, with a request for a Medical Report (Exhibit P-6). On July 20, 2021, an application (Exhibit P-7) was submitted to the Superintendent of Police, Korba, to record the victim's statement before a female Police Officer. On the same day, another application (Exhibit P-8) was made before the First Class Judicial Magistrate, Korba, under Section 164 of the Criminal Procedure 4 Code, 1973, to record the victim's statement. On July 21, 2021, the accused was arrested vide arrest warrant Exhibit P-9, and information Exhibit P-10 was given to the father of accused. 6. On July 22, 2021, an application (Exhibit P-3) was made to Ram Lal Jangde (PW-4), the Headmaster of Government School Kolihadih Barpali, Korba, to provide Dakhil Kharij Register. The statements of the victim, her brother, sister-in-law, sister, and other witnesses, including the friend of victim, were recorded. On July 26, 2021, the Headmaster presented the certified copy of Exhibit P-5, which was seized through Exhibit P-4 in the presence of witnesses. After completing the investigation, the charge-sheet (Exhibit P-11) was filed on July 30, 2021. After examining the charge-sheet and attached documents, it appears that the accused has committed offenses under Sections 451, 354, and 323 of the Indian Penal Code and Section 10 of the POCSO Act. Accordingly, charges were framed and read out to the accused, who rejected all charges and requested a trial. 7. Prosecution in order to prove its case examined as many as 7 witnesses and 11 exhibits and none has been examined in the defence of appellant. Statements of accused person was also recorded under Section 313 of CrPC in which he denied all incriminating evidence available against his, pleaded innocence and false implication. 8. The learned trial Court after appreciating oral and documentary 5 evidence available on record vide impugned judgment dated 22.05.2023 convicted and sentenced the appellant as mentioned in opening paragraph of this order. Feeling aggrieved by the said judgment, the instant appeal under Section 374(2) of CrPC has been filed by the appellant. 9. Learned counsel for appellant would submit that the learned trial Court has passed the impugned order only on the basis of conjuncture and surmises and has failed to prove its case against the applicant beyond all reasonable doubt. He would further submit the learned trial Court has failed to appreciate that the prosecution has not examined the important witnesses of the case and has only examined the interested witness who supported the case of prosecution. He would also submit that the learned trial Court has sentenced the appellant for seven years rigorous imprisonment under Section 10 of POCSO Act and as the appellant was on bail during the trial and he is languishing in jail since 22.05.2023 he has already suffered jail sentence of about 1 years 10 months and has already deposited the fine amount imposed upon him by the trial Court. 10. On the other hand, learned State Counsel opposing the prayer of learned counsel for appellant submits that the learned trial Court has rightly convicted and sentenced the appellant, in which no interference is called for. 11. I have heard learned counsel for the parties and perused the 6 record of the trial Court including the impugned judgment. 12. The issue that arises for consideration in the present appeal is whether the testimony of the victim/prosecutrix deserves acceptance and whether the prosecution has established the case of the appellant beyond reasonable doubt. 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. Sofar as age of the victim on the date of the commission of the offence is concerned, she was admittedly 15 years 13 days old at the time of the unsavory incident. 15. Ram Lal Jangde (PW-4) the Headmaster of Government School Kolihadih Barpali, Korba, where the victim was studying. In para 3 of his statement, he has stated that the details related to the victim are recorded by the police in the said Dakhil Kharij register in Admission Number 408. The said Dakhil Kharij register is maintained from the year 1996 to the year 2012. The original Dakhil Kharij register is Ex.P-5, whose attested copy is Ex.P-5C, on which parts a to a are signed by him. According to the Dakhil 7 Kharij register, the date of birth of the victim is 06.07.2006, and it is mentioned that she was admitted in Class-1 on 02.07.2012. 16. The victim has been examined as (PW-1). In para 2 of her statement, she has stated that on July 19, 2021, at around 2:00 P.M, she was at home with her sister and friend. Her friend asked them to go to her house and cook, thereafter they went to her house, where they were cooking, and she was sitting on the veranda. Suddenly, a boy from their village, Guruwar Singh, came and sat next to her. He said that he likes her. Then, against her will, accused started kissing her cheeks and lips. She pushed her away and returned home with her friend, but the accused followed them. She couldn't lock the door at her house. Thereafter, the accused again, against her will, grabbed her chest with both hands and started kissing her cheeks and lips. He then grabbed her hair and pushed her against the wall, causing her hair clip to break. Her friend and sister intervened to stop him. She then ran away from her house and went near crossing. There, she met a person whose name she don't know. She borrowed his mobile phone and called 112. After a short while, the 112 team arrived. In the evening, when her brother and sister-in-law returned home, she told them about the incident. Her friend and sister witnessed everything. The accused threatened her, saying, if she report this, he will get out of jail and kill her. On the day of the incident, the 112 police team arrived and told her to file a report. Since it was already night, she didn't go to file the report that day. Instead, she 8 went to the Police Station and filed the report the next day. 17. 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. 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 9 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.” 18. Considering the statement of victim (PW-1) and Ram Lal Jangde (PW-4) the Headmaster of Government School Kolihadih Barpali, Korba, material available on record and law laid down by the Hon’ble Supreme Court, I am of the considered opinion that the trial Court has rightly convicted the appellant for offence under Section 10 of the POCSO Act. Therefore, the conviction of the appellant for the offence under Section 10 of the POCSO Act is hereby maintained. 19. So far as the sentence imposed upon the appellant for the offence under Section 10 of the POCSO Act is concerned, considering the fact that at present, appellant is aged about 26 years and looking to the period of detention of the appellant in jail i.e. 1 year 10 10 months, this Court finds it appropriate to reduce the sentence from RI for 7 years to RI for 5 years under Section 10 of the POCSO Act, as the appellant has already suffered the agony of criminal trial for so many years, that meets the ends of justice. 20. Consequently, the criminal appel is partly allowed. Conviction of the appellant under Section 10 of the POCSO Act is hereby maintained, however, his sentence is reduced from RI for 7 years to RI for 5 years. The fine amount shall remain intact. 21. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as modified by this Court. 22. The 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. 23. Registry is 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/- (Ramesh Sinha) Chief Justice Akhil