1 2025:CGHC:36779-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1296 of 2022 Tikeshwar Dahariya S/o Anant Dahariya Aged About 32 Years Village Barda, Chowki - Lavan, P.S. - Kasdol , District - Baloda - Bazar - Bhatapara, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, P.S. - Kasdol, District - Baloda - Bazar - Bhatapara , Chhattisgarh ... Respondent For Appellant : Mr.Hemant Gupta, Advocate For Respondent : Mr.Saumya Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, CJ 29/07/2025 1. This criminal appeal arises out of the judgment of conviction and order of sentence dated 06.07.2022 passed by the Additional Sessions Judge, F.T.S.C. (POCSO Act), Balodabazar in M.Cr.C Case (POCSO) No.37/2019, whereby the appellant has been convicted for offence under Sections 376 of the IPC (hereinafter BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.07.29 16:50:17 +0530 2 called as ‘IPC’) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as ‘POSCO Act’), but since looking to the provision of Section 42 of the POCSO Act the appellant was held guilty under Section 4 of the POCSO Act and sentenced to undergo imprisonment for life and fine of Rs.1000/-, in default of payment of fine to further undergo RI for six months. 2. The prosecution story, in brief, is that on 11.06.2019 at 17.50 P.M., a report was lodged by 12-year-old minor victim that on 11.06.2019 at 08.00 A.M., her mother and father had gone to Lavan due to her father's ill-health and she was alone at home. She was taking out food after bathing in the pond and coming back home, when at around 10.00 A.M., appellant Tikeshwar Dahriya of the village came from the front and asked her for an axe. When she said that she did not have an axe, he asked, "where are your parents?" She said, "her parents have gone to Lavan for treatment." At that very moment, appellant Tikeshwar Dahriya caught hold of her, threw her on the ground, removed her slacks and tore her underwear and threw it away. Then he was doing wrong things with her. After that, her sister came to Sundar's house and called from the shade. Hearing her voice, the appellant left her and ran away. Then her sister caught her and woke her up. Then she told her sister about the incident. When Sona Bai of the village and her brother-in-law Samaylal came to the house, they were also informed about the incident. On this report of the 3 minor victim, a case was registered against the appellant at Lavan Police Outpost under Section 376 IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012. Thereafter, Crime No. 371/2019 was registered at Kasdol Police Station and the case was taken up for investigation. During the investigation, the statement of the minor victim was recorded. Statement of victim was also recorded under section 164 Cr.P.C. The map of the place of incident was prepared by the investigating officer and the map was also prepared by the Patwari. Victim was examined. Slides prepared from the victim by the doctor were seized and chemical tests were done. Investigation was done regarding the age of the victim, in which dakhil kharij register of the victim's school was seized, according to which the victim was found to be of minor age. Thereafter, after completion of investigation and finding evidence of crime, charge sheet was presented against the appellant under Section 376 IPC and section 4 of Protection of Children from Sexual Offences Act, 2012. Seized articles were sent to FSL for chemical examination and as per FSL report (Ex.P-30), semen stains and human sperm were found in Articles A, B, C, D. E and F. 3. After completion of investigation, the charge-sheet was filed before the Additional Sessions Judge, F.T.S.C. (POCSO Act), Balodabazar for trial in accordance with law. 4 4. The trial Court has framed charges against the appellant under Section 376 of the IPC and Section 4 of POCSO Act. The appellant abjured his guilt and pleaded innocence. 5. In order to establish the charge against the appellant, the prosecution examined as many as 14 witnesses and exhibited the documents (Exs.P-1 to P-30) . 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. 6. Learned counsel for the appellant submits that looking to the evidence of Sona Bai (PW-12) the story of the prosecution itself contradictory, not believable, thus the appeal may be allowed and the appellant may be acquitted. He further submits that learned trial Court ought to have consider that the statement of Dr.Akansha Sonwani (PW-13), who had categorically mentioned in her medical report that no forceful sexual act has been done with the victim. Learned trial Court had not appreciated rather neglected that the statement deposed by the Head Mater (PW-7) who also shown the flaws in the story. He also submits that the prosecution had not conducted any codification or any radiology test to prove the age of the victim. Thus, the age was not definite 5 up on which learned trial Court judgment would sustain. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 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-3) has clearly deposed the conduct of the appellant in her statement recorded under Section 164 CrPC (Ex.P-6) 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. 8. We have heard 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 prosecutrix if found reliable can be the sole ground for convicting the accused and 6 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 11 years old at the time of the unsavory incident. 12. Gyaneshwar Prasad Mandavi (PW-7) is Headmaster of Government Primary School, Barda, where the victim was studying. In para 1 of his statement, he has stated that he was posted in the same school on 19.07.2019. On the said date, the outpost in-charge Lavan had written an application demanding the victim's dakhil kharij register. The application form is Ex.P-10. His signature is on parts A to C of the application. He had written the dakhil kharij register number 23 to 64 of which contained the name of the victim and father Dani mother Bugala Satnami in which the date of birth was 09.06.2008, which the police had certified from him and took a copy and handed over the original to him. Today he has brought the original dakhil kharij register., which is Ex.P-11. The true copy of which is Ex.P-11C. His signature is on the parts A to C of Ex. P-11C. He has appeared today with the affidavit and the original register in which number 179 Dakhil Kharij number 2364 the name of the victim, mother's name Bugala, date of birth 09.06 2008 is recorded and mother Devantin had given her affidavit regarding the birth and put her thumb impression. The affidavit register is the original Ex.P-12. 7 The true copy of which is Ex.P-12C. His signatures are on parts a to c of it. He has denied in para 2 of his cross-examination that he do not know the victim. His own statement is that he has taught the victim. He also denied that the entry in Ex.P-11C has not been made by him. The witness was posted in the school at the time of admission in Class 1. 13. Further, upon perusal of the testimony made by the victim in her statement recorded under Section 164 CrPC, it is observed that the incident took place on 11.06.2019 at 10 A.M. On the date of the incident, she was alone at home and after taking a bath in the morning, she was hanging her clothes on a rope in the courtyard of the house to dry. At the same time, the appellant of the village, Tikeshwar Dahriya, came to her house and closed the door of her house and asked her if she had a pickaxe and hammer, she said that she did not have any. After that, she was taking out food for eating and was taking out water from a box kept near the shade. At the same time, the appellant caught her legs and threw her on the ground and pulled off her leggings and also pulled off her underwear. After that, the appellant put his urination in the place where she urinate and forcibly did wrong things with her. 14. The victim has been examined as (PW-3). In para 1 of her evidence, she has stated that she recognize the accused present in the court, his name is Tikeshwar Dahriya. She study in class 6th. Her father's name is Surat Ram. Devanti Bai is her elder mother. 8 Her mother is Bugala Bai who has passed away. Her elder mother has three daughters and two sons. One of her sisters has come today and two sisters have gone out to earn a living. She live at home with her mother and father. In para 2 of her evidence, the victim has stated that the incident took place around 10:00 A.M. during the summer vacation eight nine months ago. On the date of the incident her mother and father had gone to the Government Hospital, Lavan. She was at home. Then she came back after taking a bath, she was drying clothes when the accused came and snatched her, asked for a hammer and threw her down. The accused raped her by inserting his private part in her private part. She became unconscious due to the act of the accused. At the same time her sister Sundar came and the accused ran away wearing his pant. Her sister opened her mouth and gave her water and took her to the doctor. She had come to the Police Outpost Lavan with her sister Sundar Bai and brother- in-law Samaylal and aunt Sona Bai to the report. The report written by her is Ex. P-2. Her signature is on its A to A parts. The police had seized her T-shirt, slacks and underwear and prepared a seizure memo. The police had taken her to the hospital to get her private parts examined. In para 8 of her cross-examination, she has stated that that she cannot tell today what colour shirt and full pant the accused was wearing at the time of the incident. Her own statement is that the accused was wearing a short. She has denied that when her sister Sundar Bai came at the time of 9 the incident, she did not see the accused doing wrong with her. Her own statement is that when her sister came, the accused had worn his clothes and ran away. She also denied that on the date of the incident and at the time of the incident, the accused and her sister did not come face to face. Her own statement is that the accused pushed her sister and ran away. He denied that that she did not tell anybody about the incident. Her own statement is that she told her mother and father. 15. Sister of the victim (PW-1) has stated in para 1 of her evidence has stated that the incident happened about five months ago. The victim was raped by accused Tikeshwar. On the date of the incident, her mother took her father to the Government Hospital, Lavan for treatment. She was also getting ready to go to Lavan, so she went to her father's house in her maternal home, wondering whether he has taken her father or not. When she reached home at 10 A.M. in the morning, the victim was near the stove of the house without clothes below the waist and at the same time accused Tikeshwar was wearing his pant and zipping it. In para 2 of her evidence, she has stated that she asked the victim what happened, she told that she was bringing a plate for eating food when accused Tikeshwar entered the victim's house and was asking for a pickaxe and hammer from her. The victim said that pickaxe and hammer are not there, someone has taken it away. At the same time the accused pressed the victim's mouth and threw her in the shade, then tore off the victim's underwear 10 and the pant over it and after that raped her. When she entered the house, she saw that the victim was not wearing any clothes below the waist and was lying on the floor, she was unable to get up and at the same time the accused, wearing his pant and pulled his zip. She told the accused that when the victim’s parents are not at home, then why he come, then he ignored her words and pushed her and ran away. 16. Now coming to the medical evidence adduced; the medical opinion contained in the MLC report dated 11.6.2019 (Ex.P-16), it was opined that no definite opinion can be given about forceful intercourse, but signs of recent intercourse present. Slides and underwear seized from the victim were sent to FSL for chemical examination and as per FSL report (Ex.P-30) semen stains and human sperm were found in Article D underwear seized from the appellant and Article E slides seized from the victim. 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 11 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 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 12 offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 18. 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 13 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.” 19. 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 14 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 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.” 15 20. 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.” 21. 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 16 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.” 22. 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 17 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.” 23.Considering the statement of the victim (PW-3) who has specifically stated the act of the present appellant, statement of her sister (PW-2), statement of Headmaster Gyaneshwar Prasad Maravi (PW-7), further considering the statement of the victim recorded under Section 164 CrPC (Ex.P-6), MLC report of the victim (Ex.P-16) conducted by Dr.Akansha Sonwani (PW-13) and FSL report (Ex.P-30), 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 the learned Special Judge has rightly convicted the appellant for offence under Section 376 of the IPC and Section 4 of the POCSO Act. We do not find any illegality and irregularity in the findings recorded by the trial Court. 24. 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 appellants is 18 hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 25. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 26. 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. 27. Registry is also 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