1 2025:CGHC:37207-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1447 of 2021 Kishor Kumar @ Chhotu Bharadwaj S/o Mangal Bharadwaj, Aged About 29 Years R/o Camp-2, Shyam Nagar, Thethwar Para, Thana - Chhawni, District - Durg, Chhattisgarh (Accused), District : Durg, Chhattisgarh ... Appellant versus State Of Chhattisgarh, Through Police Station - Chhawni, District - Durg, Chhattisgarh. (Prosecution) ... Respondent For Appellant : Mr. Goutam Khetrapal, Advocate. For Respondent : Mr. Sakib Ahmed, Panel Lawyer Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 30/07/2025 1 Heard Mr. Goutam Khetrapal, learned counsel for the appellant as well as Mr. Sakib Ahmed, learned Panel Lawyer for the State/respondent. 2 Challenge in this appeal is to the judgment of conviction and order of sentence dated 10.06.2021 passed by the learned Additional Sessions Judge, Second Fast Track Special Court (POCSO Act), Durg, District 2 Durg, in Special Sessions Trial No.79/2018, by which the the appellant has been convicted and sentenced as under: Conviction under Section Rigorous imprisonment Fine Default Sentence Section 376AB of the Indian Penal Code Life imprisonment which shall mean remainder of natural life Rs. 5000/- 1 year R.I. Section 363 IPC 5 years Rs. 3000/- 6 months R.I. All the sentences to run concurrently. 3 The convict/appellant Kishore Kumar @ Chhotu Bhardwaj was charged with the offence punishable under sections 363, 376AB of the IPC and Section 5(d) of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act) alleging that on date 26.06.2018 at 3.00 p.m., at the place of incident, at District Durg, took the complainant’s daughter/minor aged 4 years, from the guardianship of her lawful guardian without consent or lured her away and caused her to be exploited and on the same date, time and place of the incident, he lured the victim to give some eatables, took her to his house, made her lie on the bed, removed her underwear, sat on her and ejaculated semen on her and committed rape and aggravated penetrative sexual assault. 4 The case of the prosecution in brief is that the complainant (PW-3) aged 28 years lodged a written complaint (Exhibit P/1) in the Police Station Chhawni, Durg, to the effect that on the date of incident i.e. on 26.06.2018 at 3 p.m. when she came home with the gas cylinder, her daughter/victim aged 4 years was not at home, then she enquired around and went to her neighbour Dhanbai's house who informed that the neighbour Kishor Kumar @ Chhotu had taken the victim to eat some 3 eatables. After that she, Chandni (PW-2), and Bunty started looking for her at the same time her daughter/victim came from behind. When she asked the victim, she told that appellant had taken her for a walk and took her to his house near the well in Tariya Paar. After that he made the victim lie down on the bed, then removed her underwear and sat on her and soiled her. When the victim told this to the complainant, she removed the underwear of the victim and checked it upon which she found semen on her body. 5 The case was taken up for investigation and during the investigation, the statements of the complainant and witnesses were recorded, a site map of the incident was prepared, medical examination of the victim and the convict (Exhibit P/9 and P/10) was conducted and school documents and admission discharge register for ascertaining the age of the victim were seized. On finding evidence of crime against the convict, the convict/appellant was arrested and an arrest memo (Exhibit P/14) was prepared. A charge-sheet was prepared against the appellant under Sections 363, 376 AB of the Indian Penal Code and Section 4 of the POCSO Act and presented before the trial Court on 06.10.2018. 6 Charges were framed against the appellant for the offences under Sections 363, 376AB IPC and Section 5(m) which is punishable under Section 6 of the POCSO Act, to which the appellant abjured the guilt and prayed for trial. 7 In order to bring home the offence, the prosecution examined as many as 7 witnesses namely Ku. Yashika Sahu (PW-1), Ku. Chandani Satnami (PW-2), mother of the victim (PW-3), Dr. Babita Saxena (PW-4), K.L.Dahariya (PW-5), Alisha (PW-7) and Yogita Khaparde (PW-7) and exhibited as many as 19 exhibits and two Articles. 4 8 The statement of the appellant was recorded under Section 313 of the Cr.P.C. in which the appellant denied most of the questions and with respect to some questions, he expressed his ignorance. He merely stated that he had been falsely implicated in this case. 9 The learned trial Court, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellant/ accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict. 10 Mr. Goutam Khetrapal, learned counsel for the appellant/convict submits that the entire prosecution story is concocted and is a figment of imagination. Even the FIR was lodged after a delay of 10 days for which there is no explanation. The witnesses who have deposed against the appellant are interested witnesses being the relatives and neighbour of the victim. The learned trial Court has erred by treating the victim’s statement under Section 164 Cr.P.C. as her examination in chief and serious prejudice has been caused to the appellant when he was not allowed to cross examine the victim. In her statement, the victim has expressed the term ‘chichi’ without any clear description of the alleged sexual act or identification of the accused. The learned trial Court may have technically followed the procedure by relying on the 164 Cr.P.C. statement as examination in chief, the quality and substance of the statement fails to inspire judicial confidence. Further, there was no penetrative sexual assault found proved on the victim. Even from the statements of PW-1, PW-2 and PW-3, there is no allegation that the appellant touched any private part of the victim’s body. Even the MLC and FSL report have turned to be negative as no injuries were found on the body of the victim and no semen or sperms were found on the 5 undergarment of the victim. Lastly, he would submit that the punishment imposed upon the appellant is disproportionate and his entire life would be spent behind the bars. Hence, the appellant deserves to be acquitted of the charges. In support of his contentions, he relies on the decisions of the Supreme Court in Smt. Lavanya C & Another v. Vittal Gurudas Pai {2025 INSC 325}, Bar Of Indian Lawyers Through Its President v. D.K.Gandhi PS National Institute of Communicable Diseases And Anr. {2024 INSC 410} State of Rajasthan v. Chatra {2025 SCC OnLine SC 566}, Ganesh v. State {(2020) 10 SCC 573}, Raj Sandeep v. State {(2012) 8 SCC 21}. 11 On the other hand, Mr. Sakib Ahmed, learned Panel Lawyer appearing for the State/respondent submits that the learned trial Court was fully justified in convicting and sentencing the convict/appellant as mentioned in the opening paragraph. There is ample evidence on record to hold the appellant guilty of the offence. The order passed by the learned trial Court needs no interference and the appeal filed by the convict/appellant be dismissed. 12 We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 13 The issue with regard to the fact that the victim being a minor aged about 4 years is not at all disputed in this case and as such, in order to avoid repetition, this Court does not wish to discuss the said aspect which has duly been proved by oral and documentary evidences that the victim was aged 4 years on the date of incident. 6 14 The sole question that arises in this appeal is whether the appellant, who happens to be the neighbour of the victim, has committed rape upon the victim. 15 In the present case, the statement of the victim under Section 164 Cr.P.C. was recorded on 18.09.2018 by the learned Judicial Magistrate First Class Durg. In order to ascertain whether the victim could understand the questions posed by the Court, some normal questions like her name, father’s name, mother’s name etc. was asked to which she had replied correctly and the child witness was found to be capable of giving evidence. She stated that she had gone with Pari’s father. Here it is pertinent to mention that the victim knew and called the appellant as Pari’s father and Pari is her friend. She has clearly deposed that Pari’s father had given some eatable to her and after making her lie on a cot, he disrobed by pulling down her underwear and soiled on her and had also instructed that she should not inform this to any one. The said statement was recorded in presence of her mother (PW-3). 16 The written complaint was made by PW-3, mother of the victim where she has clearly stated that the victim had informed that Pari’s father had taken her away and did the wrongful act. The written complaint was made on 07.07.2018 and the incident is said to have occurred on 26.06.2018. The victim’s father is lodged in jail on account of some murder case. The victim has stated that the appellant ejaculated something on her which she was stating as ‘chichi’. 17 On 29.04.2019 the evidence of the victim (PW-1) was being recorded and some normal questions were posed by the Court to which the victim replied correctly. However, later on, since the child was uncomfortable, her evidence was recorded on 24.05.2019. When she was asked as to 7 whether he recognizes the appellant, she clearly deposed that she was Pari’s father and that Pari is her friend. An objection was taken before the learned trial Court by the defence counsel that the statement of the victim under Section 164 Cr.P.C. should be treated as the examination in chief and separate examination in chief should not be conducted. The learned trial Court treated the statement of the victim recorded under Section 164 Cr.P.C. to be the examination-in-chief. Even in the cross examination, the victim has clearly deposed that she had come to the Court 10 – 15 days earlier and had stated before the Court that Pari’s father had taken her near the pond and after taking out her underwear had soiled on her private part. When a specific question was asked as to whether the appellant had done something with the victim, she clearly deposed that he had done something which he referred to as ‘chichi’. 18 PW-2, Chandani Satnami is also a child witness aged about 15 years. She stated that she was acquainted with the appellant who resided near her house. She also deposed that the appellat had lured the victim to give her something to eat and taken alongwith him. At that time, Prachi, victim and Bunty had also gone with them. Thereafter, Bunty and Prachi returned back. When they asked as to where the victim was, they told that appellant had taken the victim for providing her some eatables. When they started searching the victim, at that time, the mother of the victim came and she also started searching for her. When they found the victim, the victim narrated the entire story. The mother of the victim checked the body of the victim when she found that some white substance was present on the thigh of the victim. 19 PW-3, is the mother of the victim. She has deposed that the date of birth of the victim was 22.12.2014 and was studying in a school. On the date 8 of incident i.e. on 26.06.2018, in the afternoon, when she returned from her work as she was working as Mitanin, she did not find the victim in the house and when she started searching, she was informed by the children playing there that the appellant had taken the victim with him. She found the victim coming alone and when she enquired, the victim did not tell anything to her. However, when a lady who was selling toys, observed that something was present on the thighs of the victim, she checked upon which it was looking like semen. Thereafter, this witness again asked the victim as to what had happened upon which the victim informed that the appellant had taken her near the pond near a well where the appellant made the victim lie on a cot and after taking off her undergarment soiled on her. She asked as to what was near the pond, upon which the children informed that the house of the appellant is situated near the pond. She had informed the incident to the relative of the appellant namely Neetu upon which Neetu also told that the appellant was not a good human being and supported to lodge the FIR. 20 Dr. Babita Saxena (PW-4) is the Doctor who had examined the victim and gave her report (Exhibit P/9). She did not find any internal or external injuries and even the hymen was found to be intact. However, in the FSL report (Exhibit P/18), in the undergarment seized from the appellant, semen and human sperms were found but no semen or sperms were found in the undergarment seized from the victim. 21 The victim is a minor girl aged about 4 years. There was no reason to falsely depose against the appellant. She was well acquainted with the appellant and addressed her to be father of Pari who is her friend and they are neighbours. The sequence of events narrated by the victim is clear and unambiguous. The appellant lured the victim to give him some 9 eatables and took her to an isolated place and committed the offence. Being a minor girl, she could not understand as to what actually the appellant did but one thing which she could clearly state was that the appellant had done something wrong and had ejaculated something on her. The FSL report also indicates that the appellant had committed rape upon the victim, though there may not be any injuries on the body of the victim. 22 Though the appellant did not commit any penetrative sexual asault or aggravated penetrative assault, however, the act of the appellant definitely falls under the term ‘rape’ as the victim is a minor aged about 4 years and the question of consent does not arise at all. The term rape has been defined under Section 375 IPC which reads as under: “375. Rape.— A man is said to commit "rape" if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven description:— (First.)— Against her will. 10 (Secondly.) — Without her consent. (Thirdly.) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt, (Fourthly.) — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (Fifthly.) — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (Sixthly.) — With or without her consent, when she is under eighteen years of age. (Seventhly.) — When she is unable to communicate consent. Explanation 1.— For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.— Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.— A medical procedure or intervention shall not constitute rape. Exception 2.— Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 23 The argument of the learned counsel for the appellant that since the examination-in-chief of the victim was not conducted and hence it has 11 caused prejudice to the appellant, is noticed to be rejected as the learned counsel for the appellant had cross examined the victim but still the statement of the victim recorded under Section 164 Cr.P.C. remains unshaken. Even the appellant could not give any suggestion as to why he would have been falsely implicated in this case and why an innocent child would be deposing against him. 24 The learned trial Court has considered all the aspects of the matter and has rightly coming to the conclusion that it is the appellant who has committed the offence in question. The mother of the victim (PW-3), neighbour (PW-2) have also made similar submissions and the same corroborates with the deposition made by the victim. 25 From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/convict. However, with respect to the quantum of punishment, this Court is of the opinion that justice would be subserved if the appellant is convicted to rigorous imprisonment for 20 years instead of life imprisonment which shall mean remainder of natural life. As such, the sentence awarded by the learned trial Court for the offence punishable under Section 376AB IPC is modified to rigorous imprisonment for 20 years with fine amount as awarded by the learned trial Court alongwith default sentence. However, the sentence awarded under Section 363 IPC and the fine amount are maintained. 26 Accordingly, the appeal stands partly allowed. 12 27 The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment of conviction and order of sentence dated 10.06.2021. 28 Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentences 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 High Court Legal Services Committee or the Supreme Court Legal Services Committee. 29 Let a certified copy of this order alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.08.04 19:11:31 +0530