1 2025:CGHC:11468 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1794 of 2023 Parmanand Vishwakarma S/o Shri Shiv Kumar Vishwakarma Aged About 19 Years R/o Village Chandli Ward No. 14, P.S. Lalpur District Mungeli (C.G.) ... Appellant versus State Of Chhattisgarh Through District - Magistrate, Mungeli District - Mungeli (C.G.) ... Respondent For Appellant : Mr.Dheerendra Pandey, Advocate For Respondent : Mr.Bharat Gulbani, Panel Lawyer Hon'ble Shri Justice Ramesh Sinha, Chief Justice Judgment on Board 07/03/2025 1. Though, today the present appeal has been listed for hearing on I.A. No.1 of 2023, which is an application for suspension of sentence and grant of bail, however with the consent of learned counsel for the parties and considering the period of detention of the appellant, the appeal is heard finally. 2. Accordingly, I.A. No. 01 of 2023 stands disposed of. AKHILESH KUMAR DEWANGAN Digitally signed by AKHILESH KUMAR DEWANGAN 2 3. This criminal appeal arises out of the judgment of conviction and order of sentence dated 8.9.2023 passed by the Special Judge (F.T.S.C.) POCSO Act, Mungeli, District Mungeli in MCRC No.21/2020, whereby the appellant has been convicted for offence under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as “POCSO”) and sentenced to undergo RI for five years and fine of Rs.1500/-, in default of payment of fine to further undergo SI for one month. 4. The prosecution story, in brief, is that the victim’s mother (PW-1) appeared at Police Station Lalpur and lodged a written report (Ex.P-2) to the effect that her daughter / victim (PW-2) and Beena, Prakash, Lala and Khushboo all went to the river bank to eat Ganga Imli. On 18.04.2020 at about 7 A.M. Ram Prasad Yadav came and told that on 17.04.2020 at about 3:30 P.M. he was grazing goats on the river bank, at the same time, appellant Parmanand took the victim a little ahead of Ganga Imli tree and made her lie down on the ground, when he saw this, the appellant fled from there. When she asked her daughter/victim, she told that she had gone with her friend to eat Ganga Imli and the appellant took her some distance away saying that he would give her Ganga Imli and the appellant removed her clothes and was touching her private parts with his hand which was seen by her uncle and the appellant ran away from there. On the report of mother of the victim, FIR (Ex.P-3) was registered against the appellant in Lalpur Police Station under Section 354 of the IPC 3 and Section 8 of the POCSO Act and the investigation was taken up. 5. During the investigation, the statements of the victim and her mother were recorded before the Judicial Magistrate First Class, Lormi under Section 164 CrPC vide Exs.P-1 and P-6. The victim was medically examined. The spot maps (Exs.P-4 and P-5) were prepared. The statements of the victim and the witnesses were recorded. The school dakhil kharij register (Ex.P-8C) related to date of birth of the victim was seized from the Head Maaster and seizure memo (Ex.P-7) was prepared. The appellant was arrested and arrest memo (Ex.P-11) was prepared. After necessary investigation, a charge sheet was presented against the appellant for offence under Section 354 of the IPC and Section 8 of the POCSO Act. 6. The trial Court has framed charges against the appellant under Section 354 of the IPC and Section 10 of the POCSO Act. The appellant abjured his guilt and pleaded innocence. 7. In order to establish the charge against the appellant, the prosecution examined as many as 7 witnesses and exhibited the documents (Exs.P-1 to P-15) . 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 4 convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 8. Learned counsel for the appellant submits that the impugned judgment passed by learned trial Court is bad in law and contrary to the facts and circumstances of the case. There is no conclusive evidence on record that the offence is committed by the present appellant and he has been falsely implicated in crime in question. He further submits that the finding recorded by learned trial Court is not based on material available on record and the same has been recorded on the basis of conjectures and surmises. Even assuming the whole prosecution case as it is, no case is made out against the appellant for offence under Section 10 of the POCSO Act. He also submits that learned trial Court ought to have seen previous enmity with uncle of the victim by which on the date of incident uncle of the victim has committed assault with the appellant, therefore, she lodged the complaint against the appellant. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 9. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submits that the prosecution has proved its case beyond reasonable doubt and the victim (PW-2) has clearly deposed the conduct of the appellant in her statement recorded under Section 164 CrPC and in the Court statement and the learned trial Court 5 after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for. 10. I have heard the learned counsel for the parties and perused the record with utmost circumspection. 11. 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. 12. It is pertinent to observe that the question whether conviction of the appellant can be based on the sole testimony of the victim in cases of sexual assault 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 appellant and that the creditworthy testimony of the victim in cases of such nature deserves acceptance. 13. Insofar as, age of the victim on the date of the commission of the offence is concerned, she was admittedly 06 years and 03 months old at the time of the unsavory incident. 14. Santosh Kumar Yadav (PW-4) is Head Master of Maa Narmada Middle School, Chandali, Block Lormi where the victim was studying. In para 1 of his statement, he has stated that he is 6 posted as Head Master in Maa Narmada Middle School, Chandali, Block Lormi from the year 2017 till date. The police had seized the dakhil kharij register related to date of birth of the victim of the said school. Seizure memo is Ex.P-7. In para 2, he has stated that he has brought the original dakhil kharij register with him today, on which serial number 296, the name of the victim, father’s name is Laxminarayan, mother’s name is Gauri Yadav, caste Yadav, resident of village Chandali, date of birth of the victim is 25.12.2023, date of admission in school is 21.06.2018, class KG-II (Uday Class) is mentioned in the original dakhil kharij register which is Ex.P-8, whose certified copy is Ex.P-8C. 15. Further, upon perusal of the testimony made by the victim in her statement recorded under Section 164 CrPC, it is observed that she has stated that she know Permanand Vishwakarma (Parma), he is from her village. Three days ago, around 3 P.M, she went to the river bank to pluck tamarind with her friend Bina, Prakash, Lala, at that time, Permanand came and chased her friend Bina, Prakash, Lala away from there and took her with him downstream. There, Parmanand took off her clothes and lay on her. At that time, her uncle Badku came grazing goats, then Parmanand left her there and ran away and she went to her house. Her uncle Badku told the whole thing at home and she was very scared of the incident. 7 16. According to the statement of the victim (PW-1), on the date of the incident, the appellant took her and Beena to the bank of river Ganga saying that he wanted to eat tamarind and sent Beena to bring a stick from there to pluck tamarind and then he took off his underwear and lay down on her and was molesting her. When her uncle saw her, the appellant left her and ran away. She had told her mother about the incident. 17. Mother of the victim (PW-1) also supporting the statements of the victim has stated that her daughter/victim was playing with other children outside the house, when the appellant took her daughter and other child towards the river saying that they have to eat tamarind and sent other children from there saying that they have to pluck tamarind and bring a stick and the appellant stopped her daughter / victim and after that the appellant took off her daughter’s clothes and lay down over her, which was seen by her brother-in-law from the village, then the appellant left her daughter / victim and ran away, about which the victim told when asked. 18. The victim’s uncle (PW-3) also supported the victim’s statements and further stated that on the date of the incident, he had gone to the river to graze the cows and goats in the afternoon. When he saw that the appellant had taken off his and the victim’s clothes and made her lie down on the ground, the appellant ran away from there after seeing him. He told his brother and sister-in-law about the incident. 8 19. 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 in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the 9 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.” 20. 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 10 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 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.” 21. 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 11 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 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 12 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.” 22. 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 13 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.” 23. 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 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.” 24. 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 14 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 and restore the judgment of the Trial Court.” 25. Considering the statement of the prosecutrix (PW-2) who has specifically stated the act of the present appellant, statement of her mother (PW-1), statement of uncle of the victim (PW-3), further considering the statement of the prosecutrix recorded under Section 164 CrPC (Ex.P-1), the material available on record and the principle of law laid down by the Supreme Court in the above-stated judgments, I am of the considered opinion that the learned Special Judge has rightly convicted the appellant for 15 offence under Section 10 of the POCSO Act. I do not find any illegality and irregularity in the findings recorded by the trial Court. 26. 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 appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 27. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 28. 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. 29. 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/- (Ramesh Sinha) Chief Justice Akhil