1 2025:CGHC:41861 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1643 of 2023 Ramlochan @ Chendhu Khairwar S/o. Shri Shyam Sundar Khairwar, Aged About 38 Years R/o. Chandramanuli Mandir Bandhwapara, Police Station Sarkanda, District - Bilaspur, Chhattisgarh. … Appellant versus State of Chhattisgarh Through Police Station Sarkanda, District - Bilaspur, Chhattisgarh. ... Respondent For Appellant : Mr. Vikas Shrivastava, Advocate. For Respondent : Ms. Smriti Shrivastava, Panel Lawyer. Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 19/08/2025 1. Learned State counsel submitted that, in compliance with this Court’s order dated 04.03.2025, notice has already been duly served upon the father of the victim (PW-1). Today, the matter is listed for hearing on I.A. No. 1 of 2023, which is an application for suspension of sentence and grant of bail. However, neither the victim nor the father of the victim (PW-1) has appeared in person, nor has any counsel entered appearance on their behalf to contest the appeal. Thus, with the consent of learned counsel for the appellant, learned State counsel, the appeal is heard finally. PREETI KUMARI Digitally signed by PREETI KUMARI Date: 2025.08.30 14:58:05 +0530 2 2. Accordingly, I.A. No.01 of 2023 stands disposed of. 3. This appeal is directed against the judgment of conviction and order of sentence dated 26.07.2023 passed by the Additional Sessions Judge, First FTSC, District – Bilaspur (C.G.) in Special Sessions Case (POSCO Act) No.88/2022, whereby the appellant has been convicted and sentenced in following manner :- CONVICTION SENTENCE Under Section 354 of the Indian Penal Code. RI for 4 years and fine of Rs.100/-, in default of payment of fine to further undergo SI for 10 days. Under Section 354-A of the Indian Penal Code. RI for 5 years and fine of Rs.100/-, in default of payment of fine to further undergo SI for 10 days. Under Section 7/8 of the Protection of Children from Sexual Offences Act (POCSO Act), 2012 RI for 5 years and fine of Rs. 100/- in default of payment of fine to further undergo SI for 10 days. (All the sentences were directed to be run concurrently) 4. The prosecution case, in brief, is that on 22.04.2022 at around 7:00 PM, the complainant’s daughter/victim was playing outside the house. The victim returned home crying and informed the complainant about the incident. She stated that the neighbor, Chendhu/accused, lured her to a secluded area near the Janji pond under the pretext of offering food at a wedding house. There, the accused held her hand and arm, removed his clothes, and exposed his private parts to her. Based on this information, on 23/04/2022, the complainant/victim's father lodged a written complaint at Police Station Sarkanda, District Bilaspur, Chhattisgarh, regarding the 3 accused Chendhu’s inappropriate behavior with the victim. Consequently, a First Information Report was registered under Crime No. 470/2022 for offences under Sections 354 and 354-A of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012. 5. During the course of investigation, a site map of the place of incident was prepared. As per the arrest memo, the accused was arrested, and information regarding the arrest was given to the accused/appellant's family members. The statement of the victim was recorded under Section 164 of the Criminal Procedure Code. Statements of the witnesses were also recorded under Section 161 of the CrPC. After completing the necessary investigation, a charge sheet bearing number 491/2022 was filed for trial. 6. Prosecution in order to prove its case examined as many as 10 witnesses and 18 exhibits. Statements of accused person was also recorded under Section 313 of CrPC in which he denied all incriminating evidence available against him, pleaded innocence and false implication. 7. The learned trial Court after appreciating oral and documentary evidence available on record vide impugned judgment dated 26.07.2023 convicted and sentenced the appellant as mentioned in opening paragraph of this order. Being aggrieved by the said judgment, the instant appeal under Section 374(2) of CrPC has been filed by the appellant. 8. Learned counsel for the appellant would submit that the impugned 4 judgment is contrary to law, and evidence. The learned Trial Court erred in failing to observe that the prosecution did not produce any admissible or reliable evidence against the appellant. The conclusion that the case is proved beyond reasonable doubt is improperly based on hearsay evidence, which lacks provocative value. The conviction has been erroneously based on the testimony of interested witnesses, whose evidence is unreliable and untrustworthy. The learned Trial Court has failed to consider the material contradictions and omissions appearing in the record. The learned Trial Court failed to properly consider the evidence adduced regarding the age of the victim, which is a material factor in the case. He further submits that in the present case, the appellant has already served out total 2 years and 5 months in jail for the aforesaid offences and he has already deposited the fine amount before the concerned trial Court. He further submits that the appellant is not a habitual offender and he has no previous criminal antecedents. Therefore, it is prayed that the sentences imposed upon the appellant may be suitably reduced. 9. On the other hand, learned State Counsel opposing the prayer of learned counsel for appellant submits that the learned trial Court has rightly convicted and sentenced the appellant, in which no interference is called for. 10. I have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 5 11. 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? 12. 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. 13. 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. (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 6 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 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 7 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 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 8 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.” 14. In the present case, the First Information Report (Exhibit P-02) registered based on the victim's statement regarding the incident, the date of the incident is mentioned as 22/04/2022. Investigating Officer Mr. H.R. Yadu (PW-09), in Clause-02 of his chief examination, has testified that the FIR (Exhibit P-02), bearing Crime Number 470/2022, was registered in his own handwriting based on the written complaint (Exhibit P-01) submitted in relation to the incident committed against the victim. According to the Dakhil Kharij Panji (Exhibit P-15C) of the victim's school, the victim's date of birth is recorded as 06/11/2013. If the time period between the date of birth and the date of the incident, i.e., 22/04/2022, is calculated, it comes to 8 years, 5 months, and 16 days. Therefore, it is evident that on the date of the incident i.e.22/04/2022, the victim was a minor, i.e., under 12 years of age. 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 06/11/2013, hence, I am of the considered opinion that the 9 trial Court has rightly held that the date of birth of the victim is 06/11/2013 and her age on the date of incident i.e. 22/04/2022, was 8 years, 5 months, and 16 days old, thereby falling within the definition of “child” under the POCSO Act, being below 12 years of age. 15. Now 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. 16. 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. 17. The victim has been examined as (PW-2) and she has deposed against the appellant that the victim (PW-02), in response to the questions asked during the examination-in-chief, clearly stated that the accused lured her to accompany him on the pretext of taking her to a party for food and, while taking her near the “Janji pond”, held her by the waist and hand. From the victim’s testimony, it is also established that the accused/appellant committed the act of removing his own clothes and exposing his private part to the victim. Furthermore, in paragraph 13 of her cross-examination, the victim 10 (PW-02) explicitly denied the suggestion made by the defence that no such act was committed by the accused, thereby affirming that the criminal act indeed took place. 18. PW-1, father of victim deposed in paragraph 2 of his examination-in- chief against the appellant that about 7-8 months ago, when the victim (PW-2) was playing outside the house, the accused took the victim along with him, saying that there was a party for him to eat and asked him to get ready, and then he sat near the village school, went to the liquor distillery and then returned and took the victim near the "Janji pond", and after removing his clothes, he showed his private part, and the victim got scared and ran away crying to the neighbor's house. The victim's father (PW-01) has further testified that the person living in the neighbor's house was a friend of the victim's school teacher, and he called such teacher and asked him to drop the victim home. The victim's father (PW-01) has given evidence of having food at home with his younger daughter when the victim came home. The victim's father in paragraph-03 of his cross- examination, has given evidence that regarding the incident committed by the accused/appellant on the basis of which, he went to police station Sarkanda the next day in the morning and gave a written complaint (Ex.P-01) with his own signature in relation to the incident, as it was night on the date of the incident, on which basis a First Information Report (Ex.P-02) was registered against the accused/appellant. 19. The investigating officer Shri Yadu (PW-09) has deposed that Crime No.470/2022 was registered when the victim's father appeared at 11 police station Sarkanda and gave a written information (Ex.P-01) regarding the accused "holding the victim's hand, arm and molesting her and showing his private part". 20. The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of NCT of Delhi, 2012 (8) SCC 21 held as under:- “22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied 12 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 offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 21. Considering the facts that the prosecution has successfully proved the charge against the appellant beyond reasonable doubt, the testimony of the victim (PW-2), duly corroborated by PW-1 and PW-9, material available on record and law laid down by the Hon’ble Supreme Court, inspires confidence and establishes the incident in clear terms. The victim was a minor aged about 8 years, 5 months, and 16 days old at the time of occurrence, thereby attracting the provisions of the POCSO Act. Thus, the trial Court has rightly appreciated the evidence on record and convicted the appellant for the offences punishable under Section 354, 354-A of the IPC and Section 7/8 of the POCSO Act and is hereby maintained. 22. So far as the sentence imposed upon the appellant for the aforesaid offences is concerned, considering the fact that at present, appellant 13 is aged about 40 years and has already undergone jail sentence of 2 years and 05 months, he has already deposited the fine amount before the concerned Court, further the appellant is not a habitual offender and he has no previous criminal antecedents, this Court finds it appropriate to reduce the sentence to 'three years' rigorous imprisonment for each of the offences i.e. under Section 354, 354-A of IPC, and under Section 7/8 of POCSO Act, as the appellant has already suffered the agony of criminal trial for so many years, that meets the ends of justice. 23. Consequently, the criminal appeal is partly allowed. Conviction of the appellant under Sections 354, 354-A of the Indian Penal Code and under Section 7/8 of POCSO Act is hereby maintained, however, his sentence is reduced from RI for 4 years to 3 years under Section 354 IPC and from RI for 5 years to 3 years under Section 354-A IPC and from RI for 5 years to 3 years under Section 7/8 of the Protection of Children from Sexual Offences Act (POCSO Act), 2012. Thus, the jail sentence under the aforesaid offences is accordingly modified however, the fine amount shall remain intact. 24. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as modified by this Court. 25. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance. 26. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail 14 term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- (Ramesh Sinha) Chief Justice Preeti