1 CRA No.1279/2021 2025:CGHC:27636-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1279 of 2021 1 - Shravan Kumar Vaishya S/o Ishwar Dayal Vaishya, Aged About 21 Years R/o Village Pasal, Police Station Chandni, District Surajpur Chhattisgarh, District : Surajpur, Chhattisgarh 2 - Mukesh Kumar Sen, S/o Ram Sahodar Sen, Aged About 23 Years R/o Village Bhamraha Plant, Pratapganj, P.S. Hanumana, District Rewa (M.P.), District : Rewa, Madhya Pradesh 3 - Raj Kumar Nai, S/o Balmukund Nai, Aged About 22 Years R/o Village Thadpathar, Police Station Chandni, District Surajpur Chhattisgarh, District : Surajpur, Chhattisgarh ... Appellants (s) versus State Of Chhattisgarh Through The Police Station Chandni, District Surajpur Chhattisgarh, District : Surajpur, Chhattisgarh ... Respondent For Appellants : Mr. D.N. Prajapati, Advocate For Respondent/State : Mr. Malay Jain, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Bibhu Datta Guru, Judge AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.06.27 10:39:05 +0530 2 CRA No.1279/2021 25.06.2025 This criminal appeal filed by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 05/10/2021, passed by the learned Additional Sessions Judge, Fast Track Special Court, Surajpur, District:Surajpur (C.G.) in Special Sessions Case No.18/2019, whereby the appellants/accused have been convicted for the offence and sentenced as under:- Conviction Sentence Under Section 363/34 of the IPC R.I. for 7 years and fine of Rs.200/-, in default, additional R.I. for four months Under 366(A)/34 of the IPC R.I. for 10 years and fine of Rs.200/-, in default, additional R.I. for four months Under 376(D) of the IPC R.I. for 20 years and fine of Rs.200/-, in default, additional R.I. for four months Under 376(3) of the IPC R.I. for 20 years and fine of Rs.200/-, in default, additional R.I. for four months Under 6 of POCSO Act, 2012 R.I. for 20 years and fine of Rs.200/-, in default, additional R.I. for four months All the sentences are directed to run concurrently 3 CRA No.1279/2021 1. Facts of the case, in brief, is that on 17/03/2019, PW-2 victim No.1, aged about 14 years, has lodged an FIR at P.S. Chandni, District:Surajpur against the appellants stating that 14/03/2019 at about 9 o'clock in the morning the Shravan Kumar (A-1) came to her house and asked her to come along with him to do labour work, after which she got ready with her aunt (bua) i.e. PW-3 victim No. 2, aged about 30 years, to go for work, then, A-1 took both of them in his bike from village Pasal to Thadpathar. A-1 asked both the victims to load cement which was denied by them. Thereafter, he took both of them to Raghunath nagar by saying that 600 sacks of cement are to be brought from there, where he called Mukesh Kumar(A-2) and they asked both the victims to load cement which was again denied by them. A-1 took victims to Thadpathar where he called Raj Kumar (A-3). Thereafter, the A-1 gave his bike to A-3 who then took victim No.2 and ran away. Then, A-2 took victim No.1 with A-1 in bike to village Makrohar, when A-1 tried to outrage the modesty of victim No.1, then A-2 scolded A-1, who then went away and A-2 took victim No.1 to his brother-in-law's house and committed sexual intercourse with her at night. A-2, thereafter took victim No.1 to Baidhan on 15/03/2019 and bought clothes and footwear for her and took her to his village Hanumana. On 16/03/2019 the A-2 gave Rs.160/- to victim No.1 and left her about 20 k.m. from his village Hanumanam. Thereafter, she then came to Bain by bus. On the way, victim No. 1 met with A-1 and Pappu (acquitted accused), 4 CRA No.1279/2021 who then took her in bike to village Vishalpur, A-1 stopped his bike by saying that he will drink alcohol and thereafter he took the victim No.1 towards jungle and committed rape with her. On 17/03/2019, the prosecutrix reached to her house somehow and narrated the incident to her family and lodged an FIR Ex.P-1 on the next day against the accused persons. After due investigation, the appellants were arrested vide Ex.P/31-P/34. After due investigation, charge-sheet was filed. 2. The trial court has framed charges against the appellants for the aforementioned offence and the appellants abjured their guilt and pleaded innocence. 3. In order to establish the charge against the appellants, the prosecution examined as many as 11 witnesses and exhibited 41 documents. The statement of the appellants under Section 313 of Cr.P.C. was also recorded in which they denied the material appearing against them and stated that they are innocent and they have been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellants and sentenced them as mentioned in para 1 of the judgment. Hence, this appeal. 4. Learned counsel for the appellants submit that the trial Court has not properly appreciated the overall evidence available on record for holding the appellants guilty. He further submits that victim No.1 was examined as PW-2 whose evidence with respect to 5 CRA No.1279/2021 commission of offence by the appellants does not inspire confidence and not reliable. He further submits that PW-3 victim No.2 (aunt of victim No.1) and other prosecution witnesses have been declared hostile as they have not supported the prosecution story. He also submits that the prosecution has not been able to prove the age of the victim No.1 below 18 years and that she was minor on the date of incident. He submits that the learned trial Court erred in convicting the appellants only on the basis of assumption and presumption and the finding given by the learned trial Court against the appellants is perverse and contrary to evidence on record. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 5. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellants and submits that the prosecution has proved its case beyond reasonable doubt the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellants, in which no interference is called for. 6. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 7. The first question arises for consideration in the present appeal is whether the age of victim No.1 (PW-2) was below 18 years at the time of incident. 6 CRA No.1279/2021 8. Hirdaynarayan (PW-6) is the Assistant Teacher where the victim No.1 was studying. In para 3 of his statement, he stated that in the dakhil-kharij register, the names of the victim No.1 and her parents are mentioned in the Sr. No.55 and also the date of birth of the victim No.1 is mentioned as 24/12/2004. Seizure memo of dakhil kharij register is Ex.P-10/C & 11/C. Accordingly, in view of the evidence of Hirdaynarayan (PW-6), Assistant Teacher of school, where the victim No.1 was studied and also on the basis of Dakhil Kharij register, it is proved that the age of victim No.1 at the time of incident was about 14 years, which is less than 18 years. 9. Now, the second question which arises for consideration is, what are the circumstances which shows that the victim was raped by the appellants/accused. 10. The victim No.1 (PW-2) has stated in her evidence that she knows accused Shravan, Rajkumar and Mukesh but does not know accused Vijendra Kumar Vaishya alias Pappu. On the date of the incident, accused Shravan and victim No. 2 came to her house and asked her to go for work, thereafter accused Shravan took both the victims on his motorcycle to Thadpathar and asked them to load 50 bags of cement, which both the victims refused. Accused Shravan again asked them to go to Raghunathnagar and said that they can load 600 bags of cement, to which, victim No. 1 refused. Thereafter, accused Shravan said that accused 7 CRA No.1279/2021 Mukesh calling us, let us go, then the victims were going with the accused Shravan and Rajkumar. On the way, vehicle checking was going on in village Batwari, due to which they came back to Jabar. She stated that the accused Shravan took the victims on his motorcycle to Baidhan. At Baidhan, accused Mukesh also came and asked them to load the cement, to which, victim No.1 refused and asked the accused to drop at home. Thereafter, victim No.1 sat on the bike of accused Shravan and Mukesh, victim No.2 and accused Rajkumar were on one bike and went away to some unknown place. In his deposition, she further stated that she asked accused Shravan to drop her at home, then after reaching Makrohar, accused Shravan started touching her chest, accused Mukesh was driving the bike. On being objected, accused Mukesh scolded accused Shravan. Thereafter, the victim No.1 got down from the bike and with near Kreshuer machine with accused Mukesh, where the accused Mukesh tried to outrage her modesty, then she started crying due to which, accused Mukesh could not rape her. In the morning, the accused took her to his house in Village Hanumana, where on the way he bought her a pair of leggings and a pair of slippers. The witness further stated that she slept at the house of accused Mukesh in village Hanuman at night, woke up in the morning and asked him to drop her home, but accused Mukesh said that he would drop her, but he was not dropping her, then she left alone to go home, then accused Mukesh took her on his bike and took her for 20 8 CRA No.1279/2021 kms and gave her Rs. 160 and by bus at 10.00 a.m., she reached Baidhan at 03.00 pm where accused Shravan came to pick her up on his bike and said that "come home, your parents are looking for you" and made her sit on his bike and took her to Vishalpur forest and committed sexual intercourse with her, after which she went to her home at 12.00 noon and narrated the incident to her mother. 11. Dr. Seema Gupta (PW-8), has conducted the medical examination of victim No.1 and submitted a report vide Ex.P-15, in which, she found that Vulva vagina was normal. Pubic hair was stuck. Hymen was ruptured. It was difficult to enter two fingers in vagina. In her opinion- there were signs of spontaneous intercourse with the victim No.1. 12. The Supreme Court in the matter of Rai Sandeep alias Deenu v. State (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 9 CRA No.1279/2021 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 recise, 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.” 13. Also, the Supreme Court in the matter of State of Maharashtra 10 CRA No.1279/2021 vs Chandraprakash Kewal Chand Jain, 1990 SCC 550 held as under:- “A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or practice incorporated in the Indian Evidence Act, 1872 (in short ‘Evidence Act’) similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is own to 11 CRA No.1279/2021 be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.” 14. 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.” 12 CRA No.1279/2021 “20. Speaking about the child, a three Judge Bench in M.C. Mehta v. State of T.N. (1996) 6 SCC 756 “1. … “child is the father of man”. To enable fathering of a valiant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned.” 15. 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 13 CRA No.1279/2021 harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure. Children are precious human resources of our country; they are the country’s future. The hope of tomorrow rests on them. But unfortunately, in our country, a girl child is in a very vulnerable position. There are different modes of her exploitation, including sexual assault and/or sexual abuse. In our view, exploitation of children in such a manner is a crime against humanity and the society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas. As observed and held by this Court in the case of State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, children need special care and protection and, in such cases, responsibility on the shoulders of the Courts is more onerous so as to provide proper legal protection to these children. In the case of Nipun Saxena v. Union of India, (2019) 2 SCC 703, it is observed by this Court that a minor who is subjected to sexual abuse needs to be protected even more than a major victim because a major victim being an adult may still be able to withstand the social ostracization and mental harassment meted out by society, but a minor victim will find it difficult to do so. Most crimes against minor victims are not even reported as very often, the perpetrator of the crime is a 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 14 CRA No.1279/2021 is proved by adequate evidence before a court of law.” 16. 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 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 15 CRA No.1279/2021 and restore the judgment of the Trial Court.” 17. Reverting to the facts of the present case in light of above principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that from the statement of victim No.1 (PW- 2) that the the accused Shravan who is from her village itself, came to her house and took her away promising to give her a work as a labourer, knowing very well that the victim No.1/ Complainant(PW-2) is a 14 year old minor girl, along with co- accused Mukesh and Rajkumar, in furtherance of a common intention, kept taking her to villages-Thadpathar, Raghunathnagar, Jabar, Baidhan, Makrohar and Hanumana on the pretext of loading cement at different places, whereas the victim No.1/complainant refused to load the cement and said that she would be dropped at her home. Even after this, she was not taken home by accused, in furtherance of common intention, accused Shravan committed sexual intercourse with the victim No.1/complainant in Vishalpur forest. 18. Also looking to the statement of Dr. Seema Gupta (PW-8), who conducted the medical examination of victim No.1 have clearly opined that there were signs of spontaneous intercourse with the victim No.1. 19. Victim No.2 (PW-3) does not support the prosecution story and stated in her evidence that she has no knowledge regarding the incident. She clearly denies that the accused/appellants have 16 CRA No.1279/2021 committed any offence and does not report it to the police and also refuses to give any statement to the police. Consequently, the prosecution has completely failed to prove beyond doubt the charge under Section 366/34 and 376G of IPC 1860 against the accused Shravan Kumar, Mukesh and Rajkumar in respect of victim No. 2(PW-3), hence, the accused Shravan Kumar, Mukesh and Rajkumar have been acquitted for the above offences by the trial Court. 20. In the result, taking into consideration the evidence of victim (PW- 2), evidence of Dr. Seema Gupta (PW-8)we are of the considered opinion that the appellant/Shravan along with the help of co- accused Mukesh/A-2 and Rajkumar/A-3 committed sexual intercourse with the victim No.1. Thus, the trial Court has rightly convicted the appellants for the aforesaid offence. The conviction and sentence as awarded by the trial court to the appellants is hereby upheld. 21. The present criminal appeal lacks merit and is accordingly dismissed. 22. Appellant No.3-Raj Kumar Nai is on bail. His bail bond is cancelled and sureties discharged. He shall surrender forthwith before the concerned trial Court forthwith serving remaining sentence as awarded by the trial Court, failing which he shall be taken into custody by the trial Court. 23. The appellants No.1-Shravan Kumar Vaishya and No.2- 17 CRA No.1279/2021 Mukesh Kumar Sen are stated to be in jail and they shall serve out the remaining period of jail sentence as awarded to him by the learned trial Court. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing the jail sentence to serve the same on the appellants informing them that they are 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. 24. 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. SD/- SD/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Amardeep/Sourabh