1 2025:CGHC:11193 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1348 of 2023 Dinesh Kumar Jaldhari S/o Tarun Ram Aged About 28 Years R/o Village Pataratoli, Manjhatoli, Police Station Duldula, District Jashpur (C.G.) ... Appellant versus State of Chhattisgarh Through Police of Police Station Duldula, District Jashpur (C.G.) ... Respondent For Appellant : Mr. P. Chetan Kumar, Advocate. For Respondent/State : Ms. Subha Shrivastava, Panel Lawyer. Hon'ble Mr. Ramesh Sinha, Chief Justice Judgment on Board 06.03.2025 1. Though, today the present appeal has been listed for hearing on IA No.01 of 2023, which is application under Section 389 of the CrPC 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 being heard finally. 2. Accordingly, IA No. 01 of 2023 stands disposed of. 3. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 18.04.2023 passed by the learned RAJSHEKHAR SONI Digitally signed by RAJSHEKHAR SONI 2 Special Judge (POCSO Act), Kunkuri, District – Jashpur (C.G.) in Special Case No. 17/2021, 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 9(m) and 10 of POCSO Act Rigorous Imprisonment for 7 years with fine of Rs.2,000/-, in default of payment of fine additional S.I. for 1 year. 4. Case of the prosecution, in brief, is that on 15.08.2021, the mother of the victim (PW-03), lodged an oral report at Police Station – Duldula to the effect that on 15.08.2021, her husband, along with Dinesh Ram of the village and his brother Virendra Ram, had gone to the jungle to collect coal and woods and at around 03:00 pm, her husband and Virendra returned home with the wood and then gave hadiya to Dinesh and Virendra to drink at home and then gave food to Virendra, at the same time Dinesh was also sitting there. After giving the food, the mother of the victim (PW- 03) and her husband were sitting outside the house, Virendra went out after eating and inside the house, her daughter/victim (PW-01) who was aged about 04 years was sleeping. After about fifteen minutes, at about 04:30, she went to give food to accused Dinesh Ram inside the house and saw that the accused/appellant, namely, Dinesh Ram wearing the half source (Chadda) was sitting near the leg of the victim (PW-01), after the mother of the victim saw the same and asked him that what was he doing there, accused/appellant got up from there and ran away, the mother of 3 the victim (PW-03) saw that underwear of the victim was open till the knees and frock was pulled up to the chest and she was crying also, and upon asking her that what happened, her daughter told in rural language that she was having pain in her private part, then mother of the victim (PW-03) checked and found that the private part of victim was wet, and it was also found that the accused/appellant, Dinesh Ram has done wrong things with her daughter/victim (PW-01). 5. On the basis of above information given by the mother of the victim (PW-03), First Information Report (Ex.P-05) was registered against the accused/appellant Dinesh Ram by Police Station - Duldula, bearing Crime No. 52/2021 for the offence punishable under Sections 376 and 376 AB of the IPC and Sections 5 and 6 of the POCSO Act, 2012, and the case was taken into investigation. After taking consent from the mother of the victim (PW-03), Tahrir (Ex.P-14) was sent to the lady medical Officer, CHC Duldula, for providing the medical report after conducting the physical examination of the victim. After medically examining the victim, medical report (Ex.P-08) and in the prescribed proforma, medical report (Ex.P-09) was received. On 16.08.2021, the spot map of the incident (Ex.P-01) was prepared in the presence of witnesses as per the information given by the complainant. For providing the report after conducting the medical test of the accused/appellant Dinesh Kumar Jaldhari, Tahrir (Ex.P-15) was sent to CHC Duldula, after which the accused was medically examined, and thereafter, medical report (Ex.P-11) and in the 4 prescribed proforma medical report (Ex.P-12) were received. On the said date itself, when lady constable Champa Pankra brought the victim's vaginal slides from the hospital and presented them, two vaginal slides of the victim preserved by the Doctor in a sealed packet, cream coloured panty of the victim and maroon coloured school tunic preserved by the Doctor in a sealed packet were seized in front of witnesses bearing seizure memo (Ex.P- 16). 6. On 15.08.2021, Tahrir (Ex.P-10) was sent to the Executive Magistrate, Duldula for getting the spot map of the incident prepared by the Halka Patwari and providing the sport map (Ex.P- 02) was received from the concerned Halka Patwari. Tahrir (Ex.P- 17) was sent to the Judicial Magistrate, Jashpur, for recording the statement of the victim under Section 164 of the CrPC. The accused was arrested in front of the witnesses as per arrest memo (Ex.P-07) and the accused's family was informed about his arrest as per memo (Ex.P-18). A written complaint (Ex.P-19) was sent to the Superintendent of Police, District - Jashpur, regarding providing a government videographer for videography of the victim's statement under Section 164 of the CrPC. 7. On 21.08.2021, when the father of the victim (PW-02) presented the birth certificate of the victim, in which the name and date of birth of the victim is mentioned as 13.02.2017, it was seized in the presence of witnesses bearing seizure memo (Ex.P-04). On 17.08.2021, a letter was sent to the Joint Director Regional 5 Forensic Science Laboratory Ambikapur, Surguja (CG) through the Superintendent of Police, District – Jashpur, for getting a report after conducting a chemical test of the seized properties in the instant case and Acknowledgement Receipt (Ex.P-20) was received and on 24.08.2021, after getting the test done, the chemical test report (Ex.P-21) was received. After recording the statements of witnesses, collecting other evidences, and after completion of investigation, sufficient evidence was found against the accused/appellant Dinesh Kumar Jaldhari, and Charge-sheet No. 40/2021 was filed before the trial Court for the offence under Sections 376 and 376 AB of the IPC and Sections 5 and 6 of the POCSO Act, and the case was taken up for hearing by the trial Court 8. So as to prove the complicity of the accused/appellant in the crime in question, the prosecution has examined as many as 11 prosecution witnesses and exhibited 21 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. 9. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 18.04.2023 convicted and sentenced the appellant in the manner mentioned in the paragraph No. 3 of this judgment, against which this appeal under Section 374(2) of the 6 CrPC has been preferred by them calling in question the impugned judgment. 10. 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 any chinching evidence produced b the prosecution with regard to the age of the victim showing that the victim is minor which makes the whole case of the prosecution doubtful. Hence, the conviction is liable to be set aside. 11. On the other hand, learned State counsel for the State/respondent submitted that the appellant has committed a heinous crime of rape against minor girl, aged about 4 years and 6 months 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. 12. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 7 13. The first question for consideration before this Court would be, whether the trial Court has rightly held that on the date of incident, the victim was minor? 14. 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. 15. 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 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. 8 (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 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 9 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 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 10 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.” 16. In the present case, the prosecution has presented certified copy of Birth Certificate of the victim (Article A-01), which was seized as per seizure memo (Ex.P-04). In the said document, the date of birth of victim is mentioned as 13.02.2017. The defence has not presented any oral or documentary evidence to refuse the said date of birth, therefore, there is no reason to disbelieve the date of birth of the victim, as 13.02.2017, hence, we are of the considered opinion that the trial Court has rightly held that the date of birth of the victim is 13.02.2017 and his age on the date of incident i.e. 15.08.2021 was 4 years and 06 months. 17. The next question for consideration is whether the appellant has committed rape on minor victim ? 11 18. In this regard, the statement of the victim (PW-1) is of much importance. During the evidence, the mask of the accused was removed and shown to the victim and when asked, the victim did not say anything and started getting nervous and did not look at the accused. Seeing the nervousness of the victim, the accused was sent out of the trial Court room and the recording of evidence was stopped for a while to make the victim normal. After 15 minutes, the victim was again questioned normally but she did not give any answer, so the victim's evidence was again stopped for an hour. After an hour, the victim was again called for evidence along with her mother, but the victim was not giving any answer and was crying. Despite several attempts, the victim was not telling anything to the trial Court. Therefore, the victim's examination was ended. In the above circumstances, the statement of the victim has not been clearly verbally recorded before the trial Court regarding the act committed by the accused with her, but the victim being completely frightened on seeing the accused and not being able to tell anything about the accused, indicates a serious act committed by the accused in relation to the incident. 19. The father of the victim (PW-2), has stated in his evidence that he recognizes the accused/appellant and his name is Dinesh Kumar Jaldhari and the incident occurred on 15.08.2021. On the date of the incident at around 10:00-11:00 AM, the father of the victim (PW-02), accused/appellant Dinesh and his brother Virendra went to the jungle to collect wood and after getting the wood came back 12 at around 02:00 PM, then the accused/appellant Dinesh said that he was tired and asked him to buy bottles of liquor. Father of the accused bought the liquor and gave it to him to drink, thereafter, the accused said that he should cook fish curry and they would eat that. The accused himself cooked fish curry at house of the father of the victim, took out the food and ate it. Then the mother of the victim (PW-03) came out to call the father of the victim (PW- 02) and told him to have lunch, but the father of the victim told her to wait for some time because he was not feeling well, simulteneously, the father of the accused/appellant also came there and asked whether the accused, Dinesh, was eating food or not. Then the mother of the victim (PW-03) went inside to give more food to the accused and saw that the accused Dinesh had gone to the place where his daughter was sleeping and had undressed her underwear, undressed himself and was sitting on her knees as if sleeping. After seeing the same his wife shouted loudly that accused/appellant Dinesh was doing wrong things with their daughter. 20. The Father of the victim has further stated that after hearing the alarm of his wife, the accused ran out of the house by jumping the boundary, he came inside and saw that the victim girl had got up and there was white coloured semen on stomach of the victim and her private parts. His daughter/victim was scared and she did not tell him anything and told him that she was having pain in her private part. Then he informed the Village Sarpanch about the incident and then came with his wife and daughter/victim to report 13 to the Police about the same incident. The Police came to the place of the incident and prepared the spot map (Ex.P-01) of the incident as per their statement. The Halka Patwari also came to his house and as per his instructions, he prepared the spot map of the incident (Ex.P-02) in front of witnesses. The father fo the victim gave his consent (Ex.P-03) for the medical examination of victim and gave the original copy of birth certificate of victim (Article A-01) and the certified copy of the Aadhar Card to the Police in front of witnesses, which have been seized by the Police as per seizure memo (Ex.P-04). 21. Father of the victim (PW-02) has further stated in his statement that on the date of the incident, his daughter (victim) was not telling him anything about the incident. He has admittedly signed on the spot map (Ex.P-01) and spot map of Halka Patwari (Ex.P- 02). He has admitted that he cannot tell what the Police have mentioned in the property seizure memo (Ex.P-04). He has admitted that on the date of the incident, he, the accused and his brother had consumed alcohol outside. Although this witness is not an eyewitness to the incident, but on hearing the shouts of his wife, he chased the accused and the accused fled from the spot, which confirms that the accused fled from there due to fear of being caught due to criminal act. 22. The mother of the victim (PW-03), also stated in her statement similar to the victim's father (PW-02), stating that she knows the accused/appellant Dinesh Jaldhari, he is from her colony and the 14 incident took place on 15.08.2021. On the date of the incident, at around 9:00-10:00 AM, her husband, accused Dinesh and Virendra went to the forest to collect wood and returned home at around 02:00 pm after taking wood from there. She had made a hadiya at home, all three of them drank it. She gave food to Virendra and after eating the food, Virendra was sitting in the house. Thereafter, she gave food to accused Dinesh and after giving the food, she came out of the house for telling her husband to have lunch. She and her husband were sitting outside the house, then Virendra also went out. After some time, she went inside the house to serve food to accused Dinesh Jaldhari. Her daughter (victim) was sleeping on the floor next to where she had given food to accused Dinesh. When she went inside the house, she saw that accused Dinesh had opened her daughter's underwear and had lifted her skirt and he was kneeling over her. Then she asked what are you doing, he said that he is lifting the girl and seeing this, he started covering the girl with a cloth. Then she lifted the cloth and saw her daughter, her skirt was lifted and her underwear was removed, she was naked and there was some wet liquid on her body below the navel, it was not urine, if it was urine, the underwear below would have been wet. 23. Mother of the victim (PW-03) has further stated that she called her husband by shouting raising alarm and subsequently her husband came, the accused had gone to the courtyard, then her husband hit the accused twice with a stick, but the accused ran away from there and her husband chased him, so he hid in the colony. When 15 her daughter (victim) was asked about the incident by her parents, she told that the accused was doing dirty work and also told that he was having pain in his private part. Thereafter, they called the people of the colony and held a meeting on the same day and told them about the act of the accused, but the people of the colony did not support them. Then they went to Police Station – Duldula at 5:00 PM and filed a report and the she has accepted her signature on the First Information Report (Exhibit P-05). The Police came to their village and prepared the spot map of place of incident (Ex.P-01). The Halka Patwari also came there and prepared the spot map (Ex.P-02) along with Panchnama of the incident site in front of the witnesses as per her statement. When her husband/father of the victim (PW-02) presented the birth certificate of the victim before the Police, the Police seized it as per seizure memo (Ex.P-04). The statement of his daughter was recorded under Section 164 of the CrPC (Ex.P-06) in the Court of Judicial Magistrate First Class, Jashpur. 24. Thus, though the statement of the victim has not been clearly verbally recorded before the trial Court regarding the act committed by the accused with her, but the victim being completely frightened on seeing the accused and not being able to tell anything about the accused, indicates a serious act committed by the accused in relation to the incident, the statement of the victim’s father (PW-02), also corroborates with the statement of mother of the victim (PW-03). The First 16 Information Report (Ex.P-5) also confirms the above statements of the victim's father, as well as the mother of the victim. 25. Medical witness Dr. Priyanka Toppo (PW-06) has stated in the context of the physical examination of the victim that on 15.08.2021, the victim of Crime No. 52/2021 registered at Police Station Duldula, for the offence punishable under Sections 376, 376 AB of the IPC and Sections 5 and 6 of the POCSO Act was sent to the lady medical officer, CHC Duldula for proper physical examination and submission of the report. On the said date, due to the lady medical officer being on leave in CHC Duldula, she was referred to District Hospital Jashpur. On the said date itself, when the victim was brought before her for physical examination at 11:20 PM by lady constable Champa Pankra No. 483, during the course of medical examination it was found that the victim had a mark of scar on her chest as an identification mark. In the general examination, the victim's heart beat was 90 beats per minute, weight was 15.8 Kgs, height was 99 cm and she was conscious and her heart beat, respiratory system and abdominal examination were normal. 26. Medical witness Dr. Priyanka Toppo (PW-06) further found no external injury marks on the victim's body on external examination and the victim's secondary sexual characteristics were underdeveloped. On internal examination, labia majora and labia minora were healthy, redness was present in her vagina, there was no bleeding of any kind. The witness has noted that vaginal 17 slide was made by vaginal wash because the victim was crying and not cooperating. Two slides, cream coloured panty, maroon coloured school uniform were sealed and given to the concerned constable for FSL examination. The witness has accepted in his opinion that opinion can be given after chemical test and has signed on the investigation report (Ex.P-08) and the prescribed proforma (Ex.P-09). 27. Medical Officer Dr. Nitish Anand (PW-08) has stated on the point of examining the ability of accused to have sexual intercourse that on 16.08.2021, a letter was sent to the Medical Officer, CHC Duldula, regarding providing a report after examining the genitals of the accused/appellant Dinesh Kumar Jaldhari. On the same date, constable Sushil Tirki No. 170 of Police Station – Duldula, brought accused/appellant before the witness for genital examination and during the course of medical examination it was found that the accused/appellant Dinesh Kumar was in normal mental state, heart, vascular system S-1, S-2, were present. Central nervous system was normal and compliant, respiratory system was clear bilaterally, blood pressure was 110/70 mmHg, respiratory rate was 16 and pulse rate was 84 per minute. Under the second sexual characteristic, the size of penis and both ovaries were fully developed, there were no injury or scratch marks around the genitals and thighs and no skin disease was found. According to the opinion of the said medical witness, the accused was capable of having sexual intercourse and in this 18 regard, he has accepted his signature on the investigation report (Ex.P-11) and the prescribed proforma (Ex.P-12). 28. Investigation Officer K.P. Singh (PW-11) Sub Inspector has stated with reference to the investigation proceedings that on 15.08.2021, on the oral information of the complainant that her daughter, who was 04 years old girl, was raped by accused Dinesh Jaldhari with the intention of doing wrong things to her, the underwear of the victim was open till the knees and the frock was raised up to the chest and the victim was crying, on the basis of the same, FIR (Ex.P-05) was registered at Police Station Duldula, after taking consent from the mother of the victim, Tahrir (Ex.P-14) was sent to Lady Medical Officer, CHC Duldula for conducting physical examination of the victim and providing the report, on 16.08.2021, by visiting the place of incident, as per the information given by the applicant, the spot map (Ex.P-01) was prepared in presence of witnesses, on the same date he conducted masculinity test of accused Dinesh Jaldhari and provided the report to CHC. It has been stated that Tahrir (Ex.P- 15) was sent to Duldula, a sealed packet brought from the hospital by lady constable Champa Pankra, in which two vaginal slides of the victim were preserved by the doctor and one sealed packet, cream coloured panty of the victim, maroon coloured school tunic preserved by the doctor, were seized in front of witnesses and seizure memo (Ex.P-16) was prepared, a spot map of the place of incident was prepared by the Halka Patwari and Tahrir (Ex.P-10) was sent to the Executive Magistrate Duldula. 19 29. 19 29. Investigation Officer K.P. Singh (PW-11) Sub Inspector further stated that on 16.08.2021, the statement of the father of the victim (PW-2), Anil Sahu, Vidya Jagat, Khuleshwar Das and Kamlesh Bairagi was recorded as per their statement, on 17.08.2021 the seized properties were sent for FSL examination through the Superintendent of Police, District Jashpur to the Joint Director Regional Forensic Science Laboratory Ambikapur and receipt (Ex.P-20) was received, and on 24.08.2021 the FSL report (Ex.P- 21) was received and after completetion of investigation, the chargesheet was presented before the trial Court after finding sufficient evidence against the accused Dinesh Jaldhari. 30. The victim girl 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. 31. After considering the statements of the witnesses in the case, it is clear that although the victim (PW-01) has not made any statement against the accused in the trial Court, but the victim was so frightened after seeing the accused that after seeing him once, she did not see him again and even when the accused was kept outside the trial Court room and was questioned about the incident privately, she did not say anything. No clear fact has come out in the statement under Section 164 of the CrPC 20 regarding rape. The father of the victim (PW-02) is not an eyewitness but the mother of the victim (PW-03) saw the accused sitting on his knees over the sleeping victim. The accused had opened the underwear of the victim and lifted her skirt and started covering the victim after seeing the mother of the victim (PW-03) and subsequently the victim started crying. According to the witnesses, when the victim was asked, she had told that the accused was doing wrong things with her and she had also told about pain in her private parts. Although the mother of the victim (PW-03) has also stated that there was some fluid in the area below the navel of the victim, but in this regard, the presence of human sperm or semen has not been found in the underwear or tunic or vaginal slide of the victim in the FSL report (Ex.P-21). 32. No external injury of any kind in the private part of the victim has been found by medical witness Dr. Priyanka Toppo (PW-06) in the medical examination. Labia minora and labia majora were found healthy, there was no bleeding of any kind but redness was found in the vagina. 33. In the instant case, there is no fact of enmity appearing between the accused and the victim's parents, but the accused had gone to the forest to cut wood with the victim's father (PW-02) on the date of the incident and the victim's mother (PW-03) had cooked food at home for him and the labourers and had gone out after serving the food to the accused at her home. Thus, no circumstances of falsely implicating the accused appear. No 21 concrete material has been presented to refute the presumption that the accused has committed the said offence under the POCSO Act. In such a situation, the act of the accused committing a sexual offence with the minor victim is established. 34. As far as the act of the accused for committing penetrative sexual assault on the victim is concerned, in this regard, no other visible injury has been found on the victim's body except redness in the private parts and the medical witness has also admitted that there were no visible signs of forceful penetration from outside and there was no bleeding. The victim's mother has also not said that she saw the accused in a naked state. Therefore, the fact of penetrative sexual assault is not proved in the case but in the circumstances of the case, it is proved that sexual assault was committed by touching the private parts of the victim or by engaging in physical contact by the accused without penetration. Since the victim is a girl below 12 years of age, therefore, the act of the accused is proved to be of the category of aggravated sexual assault. 35. 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. 36. In the case of State (NCT of Delhi) v. Pankaj Chaudhary, reported in (2019) 11 SCC 575, it was observed and held that as 22 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. 37. 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. 38. 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 statements given by the father and mother of the victim (PW-2 and PW-3), supported by the statement of other prosecution witnesses, wherein it has stated that the accused/appellant has committed forceful sexual assault by touching the private parts of the victim or by engaging in physical contact by the accused without penetration, 23 furthermore, when the victim was asked by her parents, she had told that the accused was doing wrong things with her and she had also told about pain in her private parts. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the victim can be sustained. Moreover, the act of the accused is proved to be of the category of aggravated sexual assault. 39. Thus, it is found proved that the accused, on 15.08.2021, by lifting the skirt and removing the underwear of the minor victim girl (PW- 01) had committed aggravated sexual assault upon her by touching the private parts of the victim or by engaging her in physical contact penetration, the victim had also pain in her private parts. 40. 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. 41. 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. 24 42. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 43. 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 18.04.2023. 44. 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