Page No.1 of 9 IN CRA-1137-2019 2025:CGHC:304-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1137 of 20 19 [Arising out of judgment dated 29.04.2019, passed in Special Criminal Case No.38 of 2018 (State of Chhattisgarh v. Ramesh Paikara), by the Additional Sessions Judge (FTC), Surajpur (C.G.)] Ramesh Paikara, Son of Vishram Paikara, aged about 20 years, Resident of Pahadgaon, Police Station Jainagar, District Surajpur (Chhattisgarh) ---- Appellant (In Jail) Versus State of Chhattisgarh, through Station Police Station Jainagar, District Surajpur (Chhattisgarh) ---- Respondent ------------------------------------------------------------------------------------------- For Appellant : Mr. Mirza Keshar Beg, Advocate/Panel Lawyer appointed through CG High Court Legal Services Committee For Respondent : Mr. Sharad Mishra, Panel Lawyer ------------------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justic e Sachin Singh Rajput Judgment on Board (03.01.2025) Sanjay K. Agrawal, J (1) This criminal appeal filed by the accused-appellant under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 29.04.2019, passed in Special Criminal Case No.38 of 2018 (State of Chhattisgarh v. SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.01.10 13:32:35 +0530 Page No.2 of 9 IN CRA-1137-2019 Ramesh Paikara), by the Additional Sessions Judge (FTC), Surajpur, whereby he has been convicted and sentenced as under: Conviction Sentence U/s. 376-AB of IPC r/w S.06 of POCSO Act, [However, in light of S.42 of POCSO Act punished only U/s. 376-AB of IPC] Imprisonment for life (till natural death) with fine of Rs.5,000/- and, in default of payment of fine, additional rigorous imprisonment for 06 months. U/s. 363 of IPC Rigorous imprisonment for 04 year with fine of Rs.5,000/- and, in default of payment of fine, additional rigorous imprisonment for 06 months. U/s. 366 of IPC Rigorous imprisonment for 04 year with fine of Rs.5,000/- and, in default of payment of fine, additional rigorous imprisonment for 06 months. [All the sentences are directed to run concurrently] (2) The case of the prosecution, in short, is that on 10.06.2018, at about 15:00 hours, at Village Pahadgaon, which comes within the ambit of Police Station- Jainagar, Surajpur (CG), the accused- appellant herein firstly abducted minor victim (PW-02) from lawful guardianship of her parents and, thereafter, committed aggravated penetrative sexual assault with her and, thereby, said to have committed the aforesaid offences. (3) The further case of the prosecution is that when father of the victim (PW-01) reported the matter to the police by submitting written complaint (Ex.P/01), FIR (Ex.P/03) was registered by the police against the appellant and wheels of investigation started Page No.3 of 9 IN CRA-1137-2019 running, in which, site map was prepared vide Ex.P/04. Victim’s statement under Section 164 of CrPC was recorded vide Ex.P/05. After obtaining necessary consent vide Ex.P/03, the victim (PW-02) was subjected to medical examination, which was conducted by Dr. Suchita Nirmala Kindo (PW-09) and, as per her MLC report Ex.P/10, it has been opined that sign and symptom are present over the body of the victim (PW-02) with regard to forceful sexual intercourse. Victim’s vaginal slide were also prepared and handed over to the police alongwith her blood-stained frock and leggings for analysis, which were seized vide Ex.P/07. The accused-appellant was arrested and sent for medical examination. Appellant’s MLC report is Ex.P/11 and his undergarment was also seized vide Ex.P/08. Thereafter, the aforesaid seized articles were sent for chemical analysis and, as per FSL report (Ex.P/13) it has been opined that stains of human sperm/semen were found on the slides, frock of the victim (PW-02) as also on the undergarment of the appellant and further stains of human blood were also found on the leggings of the victim (PW-02). Further In order to ascertain correct age of the victim (PW-02), her birth certificate (Article-A/01) was also obtained/seized vide Ex.P/07, wherein her date of birth has been recorded as 17.10.2012, meaning thereby, the victim (PW-02) was minor aged about 05 years 07 months (i.e. less than 06 years) on the date of offence. Thereafter, statements of witnesses were recorded and, after due investigation, the appellant was Page No.4 of 9 IN CRA-1137-2019 charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 14 documents apart from Article- A/01, whereas the appellant in support of his defence has neither examined any witness nor exhibited any document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offences punishable under Sections 376-AB of IPC read with Section 06 of the POCSO Act, 2012 as also under Section 366 & 363 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Mirza Keshar Beg, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences. He further submits that the testimony of the victim (PW-02) is not reliable and trustworthy. The medical evidence and forensic evidence also does not support the case of the prosecution, therefore, the appellant is Page No.5 of 9 IN CRA-1137-2019 entitled for acquittal on the basis of benefit of doubt. In alternative, learned counsel further submits that though the maximum sentence of imprisonment of life has been awarded to the appellant by the learned trial Court for offence under Section 376-AB of IPC, but neither any special reason nor any extra-ordinary circumstance has been recorded by the learned trial Court for awarding maximum punishment to the appellant. Furthermore, at the time of commission of the offence, the appellant was aged about 20 years and, except this case, he has no other criminal antecedents and he has also not committed any jail offence, which aspect has not at all been considered by the learned trial Court. As such, considering the aforesaid aspect coupled with the fact that the minimum punishment prescribed for offence under Section 376-AB is 20 years RI, the sentence of the appellant for the said offence be also reduced/modified accordingly. Hence, the present appeal deserves to be allowed in full or in part. (7) Per-contra, learned State counsel would submit that prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statement of the victim (PW-02), wherein she has clearly narrated the incident and implicated appellant herein to be the author of the crime in question coupled with other evidence available on record i.e. MLC report of the victim (Ex.P/10) and FSL report (Ex.P/13), Page No.6 of 9 IN CRA-1137-2019 the trial Court has rightly convicted and sentenced the appellant for the offences mentioned herein-above. Therefore, the present appeal is liable to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) In the instant case, considering the statement of the victim (PW-02), wherein she has clearly narrated the incident in question and implicated the appellant herein to be the author of the crime by stating that on the date and time of the appellant while her mother has gone to Pachayat Bhawan of the village and her father was in her house, at that time, the appellant came to her house and took her outside near the bushes and committed aggravated penetrative sexual intercourse with her against her will and consent. The aforesaid statement of the victim (PW-02) has duly been supported by her father (PW-01), who reported the matter to the police and lodged FIR. Further, the victim (PW-02) was also subjected to lengthy cross-examination, but she remain consistent in her version and, therefore, her testimony appears to be reliable and inspire confidence. The said version of the victim (PW-02) is also supported by medical and forensic evidence available on record i.e. (i) MLC report of the victim (Ex.P/10), wherein it has clearly been opined that sings and symptom of forceful sexual intercourse are present over the body of the victim (PW-02), which Page No.7 of 9 IN CRA-1137-2019 is duly supported by the statement of Dr. Suchita Nirmala Kindo (PW-09), who has medically examined the victim (PW-02) and (ii) FSL report (Ex.P/13), wherein it has been opined that stains of human sperm/semen were found on the slides, frock of the victim (PW-02) as also on the undergarment of the appellant and further stains of human blood were also found on the leggings of the victim (PW-02). Further according to the birth certificate (Article-A/01) of the victim her date of birth has been recorded as 17.10.2012, meaning thereby, the victim (PW-02) was minor aged about 05 years 07 months (i.e. less than 06 years) on the date of offence. As such, on the basis of aforesaid evidence available on record, the finding recorded by the learned trial Court that the appellant is guilty of having committed aggravated penetrative sexual assault on the minor victim (PW-02) and abducting her, is strictly in accordance with law. We do not find any illegality or perversity in findings recorded by the learned trial Court. Accordingly, we hereby affirm the said finding. (10) Now the question would be whether the learned trial Court is justified in awarding sentence for imprisonment for life to the appellant for having committed offence under Section 376-AB of IPC read with Section 06 of the POCSO Act, 2012 or same can be modified/reduced otherwise ? (11) In order to answer this plea, it would be relevant to notice Section 376-AB of IPC, which reads as under: Page No.8 of 9 IN CRA-1137-2019 “376AB. Punishment for rape on woman under twelve years of age- Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.” (12) In view of the above-stated provision since the minimum sentence prescribed for offence under Section 376-AB of IPC is 20 years and the maximum punishment is imprisonment for life, and further considering the facts and circumstances of the present case, where neither any special reason nor any extra-ordinary circumstance has been recorded by the learned trial Court for awarding maximum punishment to the appellant and, at the time of commission of the offence, the appellant was aged about 20 years and, no evidence has been brought on record to show that except this case, the appellant has any other criminal antecedent and or he has committed any jail offence post conviction, while affirming the conviction of the appellant for offence under Section 376-AB of IPC read with Section 06 of the POCSO Act, we deem it appropriate to sentence him for a period of 20 years’ rigorous imprisonment by modifying/reducing it from imprisonment for life. However, the fine sentence and default stipulation, as imposed Page No.9 of 9 IN CRA-1137-2019 upon the appellant by the learned trial Court, alongwith the direction that both the sentences to run concurrently, shall remain intact. Further, though the conviction and sentence of the appellant for offence under Section 06 of the POCSO Act, as awarded by the learned trial Court, is hereby affirmed, but in light of Section 42 of the POCSO Act, the appellant shall have to serve 20 years’ rigorous imprisonment for having committed offence under Section 376-AB of IPC. The conviction and their respective sentences, as imposed by the learned trial Court on the appellant, for having committed offences under Sections 366 & 363 of IPC shall also remain intact/as it is being well merited. (13) Consequently, this criminal appeal is partly allowed to the extent indicated herein-above. (14) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action. Sd/- Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge s@if