1 2025:CGHC:23106 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1721 of 2023 Mahesh Singh Bhaina S/o Lallu Singh Bhaina Aged About 25 Years Resident Of Dahibahara, Mudatola, P.S. Gourela, District Gourela- Pendra-Marwahi (C.G.) ... Petitioner(s) versus State Of Chhattisgarh Through Station House Officer, Police Station Gourela, District Gourela- Pendra- Marwahi (C.G.) ... Respondent(s) For Appellant(s) : Mr. Vijay Shankar Mishra, Advocate. For Respondent(s) : Ms. Ankita Shukla, Panel Lawyer. Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 11/06/2025 1. This appeal is directed against the judgment of conviction and order of sentence dated 11.08.2023 passed by the learned Special Upper Sessions Judge, Pendraroad, District-Bilaspur Chhattiagarh in Special S.T. No.16/2022, whereby the appellant has been convicted and sentenced in following manner :- CONVICTION SENTENCE Under Section 341 of the Indian Penal Code Fine of Rupees 500/- in default of payment of fine amount to further KUNAL DEWANGAN Digitally signed by KUNAL DEWANGAN 2 undergo Rigorous Imprisonment for 10 day. Under Section 354A(iv) of the Indian Penal Code RI for 06 months and fine amount of Rs.500/-, in default of payment of fine to further undergo RI for 01 month. Under Section 11(i) of the Protection of Children from Sexual Offences Act (POCSO Act), 2012 RI for 01 year and fine amount of Rs.500/-, in default of payment of fine to further undergo RI for 02 months. (All the sentences were directed to be run concurrently) 2. Case of the prosecution, in brief, is that the father of the victim (PW-3) appeared before the Gaurela police station and lodged an FIR against the accused/appellant with the intend that his elder daughter, the victim (PW-2), aged about 13 years, was a student, studying in Middle School Dahibahara. On 13/04/2022, at around 01:00 PM, his daughter victim has informed that when she was going to her school, at that time, the appellant Mahesh Bhaina, of the nearby village was using his mobile there, he came in front of her and blocking her path said that he wants to make her the mother of his child, if she did not love him then he will chop off her head and throw it away, if she did not love him then he will come to her house and rape her and her father is a eunuch, he cannot do anything against him, he started saying this, due to which she got scared and she has run away with her friend Soni Bhaina and came to her home. On being told by his daughter, he and his wife went to Mahesh Bhaina's house and explained to him why he had 3 given such threats, but he came to their house and started threatening them with death by saying that he would chop them all into pieces and throw them away and would come to their house and take away their daughter, due to which his daughter, the victim and they are scared, they want action against Mahesh Bhaina, the written complaint is (Ex.P/3). On the basis of the said written complaint, First Information Report (Ex.P. 04) was lodged against the accused/appellant for offence under Sections 341, 354A, 506 of Indian Penal Code and Sections 11 and 12 of Protection of Children from Sexual Offences Act 2012, and the crime was registered and taken up for investigation. 3. During the course of investigation, a spot map of the scene of the incident, (Ex.P/15), was prepared in the presence of witnesses. An application (Ex.P/06) was sent to the Head Master of Government Primary School Dahibhara for providing the school's admission discharge register regarding the victim's date of birth. When the Head Master provided the admission discharge register, the said admission discharge register was seized and seizure sheet (Ex.P.-07) was prepared, the said admission discharge register is (Ex.P. 08). The certified copy of the seized admission register in the case is (Ex.P. 08-C). When the victim's father was given a notice (Ex.P. 05) for presenting documents regarding the victim's date of birth, the victim's class V mark sheet was seized and seizure sheet (Ex.P/01) was prepared by the victim's father. The application sent to Tehsildar Pendra Road for providing 4 Patwari Map of the place of occurrence which is (Ex.P/14) and Patwari prepared Patwari map of the place of occurrence and Panchnama (Ex.P/02) was prepared by the Patwari and report (Ex.P/09) was submitted to Tehsildar Pendra Road. Application (Ex.P/13) was prepared and sent to Judicial Magistrate First Class Pendra Road for recording the statement of the victim under Section 164 Cr.P.C. The statement of the victim and witnesses was recorded. On finding evidence of crime, the accused was arrested and arrest sheet (Ex.P/11) was prepared and information of the arrest (Ex.P/12) was given to his family and after completion of investigation, a case was registered against the accused and charge-sheet has been filed for offence under Sections 341, 354A(iv) and 506 of the Indian Penal Code and Sections 11 and 12 of Protection of Children from Sexual Offences Act, 2012. 4. Thereafter, charges were framed against the appellant/accused under Sections 341, 354A(iv), and 506 (Part Two) of the Indian Penal Code and Section 11(1) read with Section 12 of the Protection of Children from Sexual Offences Act, 2012. Upon the charges being read out and explained to him, the appellant/accused denied the commission of the offence and requested to be tried. 5. Prosecution in order to prove its case examined as many as 8 witnesses and 16 exhibits and none has been examined in the defence of appellant. Statement of appellant/accused was also 5 recorded under Section 313 of CrPC in which he denied all incriminating evidence available against him, pleaded innocence and false implication. 6. The learned trial Court after appreciating oral and documentary evidence available on record vide impugned judgment dated 11.08.2023 convicted and sentenced the appellant as mentioned in opening paragraph of this order. Feeling aggrieved by the said judgment, the instant appeal under Section 374(2) of CrPC has been filed by the appellant. 7. Learned counsel for appellant submit that the impugned judgment of conviction and sentence vide Annexure A-1 passed by the learned trial Court is contrary to the facts and evidences available on records. He further submits that the appellant has neither been threatened to the victim nor committed any aforesaid conviction of offence as alleged by the learned trial Court against him and the prosecution has failed to prove the case and no any incident has been occurred and there is no any witness. He also submits that the prosecution has failed to prove the age of the victim and not produced any documents for the same, due to previous enmity the appellant has falsely been implicated based upon the false and baseless allegation. The real fact that at the time of incident, the father of the victim and father of the appellant were disputing with regard to disputed land and when the appellant has came on the spot and stopped them, then only on the that basis, the father of victim has lodged false report against the present appellant, but 6 the appellant did not commit any aforesaid offences. The mother of the victim in her chief told that she does not known about actual date of birth of her daughter. The incident took place at main road so many people would be seen it, if incident would be taken place. the prosecution has failed to submit any documents to convict against the appellant, only on the basis of quarreling dispute in between father of the victim and appellant, the appellant has been convicted as mentioned above short for 01 years, but the appellant has not committed outrage of her modesty and not committed any conviction of said offences. He further submits that the appellant is aged about 27 years young boy and the complainant has made complaint against the appellant without any specific reason. 8. Learned counsel for the appellant further submits that the learned trial Court relied upon the statement given by mother of prosecutrix (P.W. 1) who is not reliable and un-trustworthy, unsupported to the case and depositions and statement, hence the impugned judgment of conviction is liable to be set-aside. The learned trial Court failed to appreciate that there is material contradiction and omission in the statement of several witnesses. As per the evidence and material available on record no offence under Section 341, 354A(iv) of the Indian Panel Code and Section 11 (i) of the Protection of Children From Sexual Offences Act, 2012, against the appellant is made out. He would also submit that the learned trial Court has sentenced the appellant for 01 7 year rigorous imprisonment under Section 11(i) of POCSO Act and as the appellant was on bail during the trial and he has already suffered jail sentence of about 08 days and has already deposited the fine amount imposed upon him by the trial Court. 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. 11. The issue that arises for consideration in the present appeal is whether the testimony of the victim/prosecutrix deserves acceptance and whether the prosecution has established the case of the appellant beyond reasonable doubt. 12. 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. 13. So far as age of the victim on the date of the commission of the offence is concerned, she was admittedly 13 years, 07 months 8 and 28 day old at the time of the unsavory incident. 14. The victim (PW-2) has stated in his statement before the trial Court that on the date of the incident, at around 1:00 PM, while she was returning from school, the accused Mahesh Bhaina stopped her on the main road where there are two mango trees and one Kosam tree. He blocked her way and said that if she did not love him, he would cut her into pieces and throw her away. He also threatened to rape her. A little distance away, her friend was present. She ran to her house along with her friend and narrated her parents about the incident. Thereafter, her parents went to the house of the accused to speak to him. Later, the accused came to their house and started threatening them, saying that her father could do nothing to him and that he would abduct their daughter. After that, her parents went to the police station and lodged a report against the accused. The police recorded her statement and her statement was also recorded before the Magistrate. 15. The victim (PW/02) also stated in paragraph 3 of her cross- examination that her statement was recorded before the Magistrate. In paragraph 4 of the cross-examination, she admitted that the place of incident is the main road and people from her village as well as neighboring villages frequently use that road. There is regular public movement on that road. The distance from her house to the school is about half a kilometer. In paragraph 5 of the cross-examination, she stated that when school period was over, 2–4 children were walking ahead of her and some were 9 behind her, but none were walking directly with her. She did not inform the people walking ahead or behind about the incident. On her own, she stated that she told her friend. Thus, the defence did not challenge any of the material aspects of the offence during the cross-examination of the victim (PW/02) concerning the statements made during her chief examination. 16. Mother of the victim (PW/1) has stated in her Court testimony that on the date of the incident, at around 12:00–1:00 PM, her daughter (the victim) was returning home from school. On the main road, near the mango and Kosam trees, the accused Mahesh was using his mobile phone. He stopped her daughter and asked whether she would love him or not, and further threatened that if she didn’t, he would commit a serious act and kill her. After that, her daughter came home and narrated the incident to her. Then she and her husband went to the accused’s house and explained to him that he also has a mother and sister, and he should not speak in such a manner. The accused had previously also behaved similarly with her daughter and they had already warned him about it in the past. After this incident, when they again went to advise him, the accused came to their house and started a quarrel and brought a stick with him. The accused said, “I am Mahesh Launda. You cannot do anything to me.” After that, they called the police emergency number 112. In paragraph 4 of her cross-examination, the victim’s mother (PW/01) stated that she had given a statement to the police that was consistent 10 with her court testimony. Upon examining her police statement recorded under Section 161 of the Criminal Procedure Code, it is evident that there is no serious contradiction between her police statement and her testimony in Court regarding the essential elements of the offence. It is not necessary that the witness’s statement in Court and the one given to the police be identical word for word. What matters is the intent behind the statement, which, in the present case, shows no material deviation between the two versions. Therefore, the testimony of the victim’s mother (PW/01) supports the version given by the victim. 17. The victim’s father (PW/03) also corroborated the statements of the victim (PW/02) and the victim’s mother (PW/01). He clearly stated that the victim came home and informed him that the accused had stopped her. Thereafter, he went to the accused’s house and told his father to control his son, as it was the time of his daughter’s exams. The accused’s father responded that he knew nothing. On the day of the incident, both the accused and his father came to their house and used obscene and abusive language. He had lodged a complaint before the police station. His thumb impression is present on the written complaint (Ex.P- 03) and on the First Information Report (Ex.P-04). When he was declared hostile by the prosecution and questioned in that capacity, he fully supported the prosecution’s case. The facts mentioned in his police statement recorded under Section 161 CrPC further corroborate his testimony given in Court. 11 18. Investigating Officer Shobha Yadav (PW/8) has stated in her statement that the victim's father lodged a written complaint before the police station, alleging that his 13-year-old daughter informed him that while returning from school, the accused, Mahesh Bhaina, obstructed her path near a mango tree and a Kosam tree on the main road. He allegedly made threatening remarks, including "He want to make her the mother of his child. Love her, or he will chop off her head and throw it away. He will come to her house and rape her. Her father can't do anything against him." The victim then ran away with her friend and narrated the incident to her parents. When the parents approached the accused to reason with him, he threatened to kill them and abduct their daughter. The first information report (FIR) (Ex.P-4) was registered based on the written complaint (Ex.P-3), and the investigating officer's testimony supports the contents of these documents. 19. Upon examining the contents of the written complaint (Ex. P-03) and the First Information Report (Ex. P-04), it is found that the content recorded therein is supported by the Court testimonies of the victim (PW-02), her mother (PW-01), and her father (PW-03). There is no major contradiction or omission in the above documents and the Court testimonies of the aforementioned witnesses. Thus, based on the Court testimonies of these witnesses and their police statements, the statement recorded under Section 164 CrPC of the victim, the written report (Ex. P- 12 03), and the FIR (Ex. P-04), it becomes evident that on the date of the incident, i.e., 13/04/2022, around 12:00–1:00 PM, while the victim was returning home from school, the accused stopped her on the road and said, “He want to make her the mother of his child. Love him, or I will cut off her head and throw it away. He will come to her house and rape her. Her father can do nothing to him.” Upon hearing this, the victim ran to her friend, who was walking ahead and later informed her parents about the incident. When her parents went to the accused’s house to reason with him, he came to their house and again threatened to kill the victim and her parents, chop them into pieces and abduct the victim. Under these circumstances, the testimonies of all three witnesses and the above documents fully support the prosecution’s narrative and it cannot be presumed that the incident was fabricated or that the accused has been falsely implicated. 20. Mr. Pashupatinath Pandey (PW/4) has stated in paragraph No. 01 and 02 that on 20.04.2022, he was posted as the acting Head Teacher at Government Primary School, Dahibahra. On that date, Gourela Police Station submitted an application requesting the school’s admission discharge register in connection with Crime Number 162/22 related to the victim’s date of birth. The application is (Exhibit P-06), on which his signature is present at Section A to A. On the same date, the admission discharge register was seized from him by Gourela Police. The seizure memo is (Exhibit P-07), bearing his signature from section A to A. 13 On that day, he has brought the original admission discharge register of the school, which starts from the year 2008. The first entry is serial number 718 and the last entry is 1073. The victim is recorded at entry number 892, where her date of birth is mentioned as 16.08.2008. The original admission discharge register is (Exhibit P-08). He has been posted at Government Primary School Dahibahra since the year 2010. At the time the victim was brought for school admission, Mr. Soni was in charge. The admission was not done by him. It is correct to say that he cannot confirm which teacher recorded the date of birth of the victim at serial number 892 in (Exhibit P-08C). It is correct to say that the basis on which the victim’s date of birth was entered in the register is not mentioned, nor is there any supporting document attached. His signature is on Exhibit (P-06), which he signed at the police station. He was called to the station, where he signed in the presence of Madam Yadav. It is incorrect to say that he signed the seizure memo at the school. It is correct that he submitted the register the day after receiving the application. It is also correct to say that he cannot tell which other people’s signatures are on the seizure memo. 21. 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 14 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 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 15 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.” 22. Considering the statements of the victim (PW-2), mother of the victim (PW-1), father of the victim (PW-3) and the Investigating Officer, Ms. Shobha Yadav (PW-8) and Head Master Mr. Pashupatinath Pandey, (PW-4), material available on record and law laid down by the Hon’ble Supreme Court in Rai Sandeep @ Deenu (supra), I am of the considered opinion that the trial Court has rightly convicted the appellant for offence under Sections 341 and 354A(iv) of IPC and Section 11(i) of the POCSO Act. 23. So far as the sentence imposed upon the appellant for the offence under Sections 354A(iv) of IPC and Section 11(i) of the POCSO Act is concerned, considering the fact that at present, appellant is aged about 27 years and looking to the period of detention of the appellant as he was in jail for about 8 days during the trial, this Court finds it appropriate to reduce the sentence from RI for 6 months for offence under Section 354A(iv) of IPC and RI for 01 year for offence under Section 11(i) of the POCSO Act to the period already undergone by the appellant about i.e. 08 days of jail sentence, however fine amount is enhanced from Rs. 500/- to 16 Rs.4000/- under Section 354A(iv) of IPC and Rs.500/- to Rs. 6000/- under Section 11(i) of the POCSO Act. Total Enhanced fine amount i.e. 10,000/- shall be deposited by the appellant within a period of two months from today before the concerned trial Court in addition to whatever amount he has already deposited and the same shall be paid to the victim (PW/2), failing which, he shall further undergo the sentence as has been ordered by the trial Court. Ordered accordingly. 24. Consequently, this appeal stands partly allowed. 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. Sd/- (Ramesh Sinha) Chief Justice Kunal