1 2025:CGHC:39047-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 816 of 2021 Gajju @ Gajanand Tiwari S/o Ramashankar Tiwari Aged About 28 Years R/o Model Town, Near Gayatri Kirana Stores, Bhilai, Police Station Supela, District Durg Chhattisgarh., District : Durg, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station Supela, District Durg Chhattisgarh ... Respondent For Appellant : Mr. Rahul Mishra, Advocate For Respondent : Mr. Nitansh Jaiswal, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, CJ 06/08/2025 1. This criminal appeal arises out of the judgment of conviction and order of sentence dated 01.01.2021 passed by the learned Additional Sessions Judge, First F.T.C. Special Judge (POCSO Act), Durg, District – Durg (C.G.) in Special Sessions Case No. BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.08.07 10:22:27 +0530 2 77/2018, whereby the appellant has been convicted and sentenced in following manner :- CONVICTION SENTENCE Under Section 376(A)(B) of the Indian Penal Code Life imprisonment till the natural death and fine of Rs.10,000/-, in default of payment of fine to further undergo SI for 3 months. Under Section 10 of the Protection of Children from Sexual Offences Act (POCSO Act), 2012 RI for 5 years and fine of Rs.500/-, in default of payment of fine to further undergo SI for 1 month. (Both the sentences were directed to be run concurrently) 2. The prosecution story, in brief, is that the mother of the victim lodged a written report (Ex.P/5) on 22.08.2018 stating that on 21.08.2018, her daughter / victim, aged about 08 years, had gone to the house of their neighbor Gogo to play. When her daughter returned after playing, she started crying while using the bathroom. Upon inquiry, the daughter / victim informed her that while she was playing with Gogo, Gogo’s father had sent Gogo to the shop, and during that time, he kissed and licked her private parts. Based on the said written report (Ex.P/5) of the complainant, Sub-Inspector Pramod Sharma of Police Station Supela registered Crime No.763/2018 (Ex.P/6) on 21.08.2018 at 22:00 hrs against appellant Gajju Tiwari under Section 376 of the IPC and Sections 5 and 6 of the POCSO Act. The Investigating Officer/Sub-Inspector Pramod Sharma submitted an application 3 (Ex.P/11) for the seizure of the dakhil kharij register for verification of the victim’s date of birth. He also submitted an application to the Judicial Magistrate First Class, Durg, for recording the victim’s statement under Section 164 CrPC {corresponding Section 183 of Bharatiya Nagarik Suraksha Sanhita (BNSS)}. During the course of investigation, based on the information given by the complainant / victim’s mother, a spot map (Ex.P/12) was prepared. Consent was obtained from the victim and her mother for medical examination of the victim, and an application (Ex.P/9) was submitted to the District Hospital, Durg, for medical examination of the victim’s private parts. MLC of the victim was conducted by Dr.Pushpaanju Climies (PW-5) vide Ex.P-8 and found no external injury, secondary sexual character not developed, breast, axillary, pubic hairs not developed, labia majora, minora not fully developed. Redness present on left labia region. On internal examination, she found abrasion of about 1 cm x 0.25 cm and inner aspect of vaginal fold both sides, redness in colour, tenderness present, hymen intact. She opined that fingering of private parts cannot be denied as per above findings. . An application (Ex.P/10) was also submitted to the Government Hospital, Durg, for conducting the medical examination of the appellant to ascertain his capacity to perform sexual intercourse, and the medical examination was accordingly conducted in which he was found mentally and physically fit to perform sexual intercourse. Investigating Officer Vimla Pathare submitted an 4 application to the Tehsildar Office, Durg, for preparation of the site map by the Patwari, upon which the Patwari prepared the map (Ex.P/7). The statements of the victim and witnesses were recorded in writing as per their version. The appellant was arrested in the presence of witnesses as per the arrest memo (Ex.P/13), and the arrest information was communicated to the wife of the appellant. On finding prima facie evidence against the accused under Section 376 IPC and Sections 3(g), 5, and 6 of the Protection of Children from Sexual Offences Act, 2012, after completion of investigation, charge-sheet bearing No. 650/2018 dated 04.10.2018 was filed before the jurisdictional criminal Court. 3. On perusal of the charge-sheet and accompanying documents, prima facie evidence was found against the appellant for the offences punishable under Sections 354, 376-AB of IPC and Sections 9(l)/10 and 3/4 of the Protection of Children from Sexual Offences Act, 2012. Accordingly, charges under the aforesaid sections were framed. 4. In order to establish the charge against the appellant, the prosecution examined as many as 7 witnesses (PW-1 to PW-7) and in defence 2 witnesses (DW-1 and DW-2) were examined and further exhibited the documents (Exs.P-1 to P-13). The statement of the appellant under Section 313 of CrPC was also recorded in which he denied the commission of the offence and pleaded not guilty, claiming to be innocent and demanding trial. In his 5 statement recorded under Section 313 CrPC, the accused stated that he is innocent and has been falsely implicated, and he expressed his intention to adduce evidence in defence. 5. The trial Court upon appreciation of oral and documentary evidence available on record, by the judgment dated 01.01.2021, convicted and sentenced as aforementioned. Hence, this appeal. 6. Learned counsel for the appellant submits that the trial Court failed to consider the defence witnesses' testimony (Uma Tiwari DW-1 and Satish Tiwari DW-2), which established that the appellant is alibi on the date of the incident. He further overlooked the doctor's admission that the victim’s injuries could be due to infection, not necessarily assault. He further submits that the prosecution failed to provide reliable evidence to determine the victim's actual age, even if the prosecution's case is accepted, the alleged offences are not proven against the appellant. He also submits that the trial Court failed to properly appreciate the evidence and documents presented, there are material contradictions and omissions in prosecution witnesses' statements render their testimony unreliable. Hence, the conviction is excessive, harsh, and unsustainable in law. 7. 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-1) has clearly deposed the 6 conduct of the appellant in her statement recorded under Section 164 CrPC (corresponding Section 183 of BNSS) and in the Court statement and the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for. 8. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 9. 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. 10. 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. 11. Insofar as, age of the victim on the date of the commission of the offence is concerned, she was admittedly 7 years 8 months and 19 days old (approximately 8 years old) at the time of the unsavory incident. 7 12. The victim has been examined as (PW-1). In para 9 of her evidence, she has stated that Gogo’s father had put his hand on her urinary tract. The victim also pointed towards her private parts with her finger and said that Gogo’s father had put his hand on this place. Gogo’s father had opened her underwear. Gogo’s father had kissed both her cheeks. The victim pointed towards both her cheeks and said that Gogo’s father had kissed on both her cheeks. Gogo’s father had also kissed on her lips. Gogo’s father had removed her underwear, not her pyjamas. On being shown the statement recorded before the Magistrate under Section 164 of the CrPC, the witness said that her signature is on parts A to B of this statement. On putting the question to her in para 12 of her cross-examination, she has answered that Gogo’s father had inserted his finger. 13. PW-2 father of the victim has stated in para 5 of his evidence that after the incident the victim went to play and came back and went to the bathroom and was crying in the bathroom, then his wife asked the victim, what happened, why she is crying? Then the victim told that Gogo’s father kissed her and took off her clothes and tried to do dirty acts. His wife told him about the incident with the victim. Then he went with his wife to Gajanan Tiwari’s house. Gajanan Tiwari had fled from the house. Later they went to the police station and made a report regarding the incident with the victim. 8 14. PW-4 mother of the victim has stated in para 2 of her evidence that on the date of incident, she was going to work at around 4.30 P.M. when she met the appellant’s daughter on the way and she told her that the victim was playing in their house. She returned home from work at around 6 P.M. when the victim had gone to the bathroom. The victim told her that she was feeling burning and pain while going to the bathroom. On her asking, the victim told her that Gogo’s father had done wrong to her. She told that Gogo’s father had kissed her and told her after kissing her at the place of the bathroom. Gogo’s father had sent Gogo to the shop at that time. 15. Dr.Pushpaanju Climies (PW-5) has stated in para 7 of her evidence that on genital examination, she found that the fold of the victim’s vaginal area had redness with bruises of 1 cm length x approximately 0.25 cm depth on both sides, the victim’s private part was painful to touch, hymen was intact. She prepared two slides of her vagina and gave them to the same lady constable. In para 8 of her evidence, she has stated that after examination, she gave her opinion that the injuries caused to the private parts of the victim could have been caused by fingering the private parts of the victim. 16. The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of NCT of Delhi, 2012 (8) SCC 21 held as under:- 9 “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 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 10 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.” 17. 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 11 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 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.” 18. 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 12 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 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 13 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.” 19. 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.” 14 20. 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.” 21. 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 15 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.” 22. Considering the statement of the victim (PW-1) who has specifically stated the act of the present appellant, statements of her parents, further considering the statement of the prosecutrix recorded under Section 164 CrPC (Ex.P-1), MLC report of the victim (Ex.P-8) conducted by Dr.Pushpaanju Climies (PW-5), 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 stated above. We do not find any illegality and irregularity in the findings recorded by the trial Court. 16 23. 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. 24. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 25. The trial court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. 26. 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/- Sd/- /- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Bablu