1 2025:CGHC:9168 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1927 of 2023 Devnath Thakur S/o Bhakturam Thakur, Aged About 40 Years, R/o Village Amlidih, Police Chouki Chichola, District : Rajnandgaon, Chhattisgarh ... Appellant versus The State of Chhattisgarh Through District Magistrate, District : Rajnandgaon, Chhattisgarh ... Respondent(s) For Appellant : Ms. Shital Soni, Advocate. For Respondent(s) : Ms. Monika Thakur, Panel Lawyer. Hon'ble Shri Justice Ramesh Sinha, Chief Justice Judgment on Board 21.02.2025 1. Heard Ms. Shital Soni, learned counsel appearing for the appellant as well as Ms. Monika Thakur, learned counsel appearing for the respondent/State. 2. Today, though the matter is listed for hearing on I.A. No. 02/2023, which is an application for suspension of sentence and grant of bail to the appellant, however, with the consent of learned counsel for the parties, the appeal is heard finally. 3. In view of the above, I.A. No. 02/2023 stands disposed of. PREETI KUMARI Digitally signed by PREETI KUMARI 2 4. This criminal appeal arises out of the judgment of conviction and order of sentence dated 14.08.2023 passed by the Additional Sessions Judge, Dongargarh, District – Rajnandgaon (C.G.) in Special Sessions Case No.10/2022 whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentence Under Section 323 of Indian Penal Code. 03 months SI with fine of Rs. 500/-, in default of payment of fine additional 15 days SI. Under Section 506(Part-2) of Indian Penal Code 01 Year SI with fine of Rs. 500/-, in default of payment of fine additional one month SI. Under Section 8 of POCSO Act. 03 Years RI with fine of Rs. 500/-, in default of payment of fine additional six months RI. Under Section 12 of POCSO Act. 01 Year RI with fine of Rs. 500/-, in default of payment of fine additional one month RI. All the sentences were directed to be run concurrently 5. The prosecution story, in brief, is that the victim made a written complaint at the Police Station Chichola stating that she lives with his younger sister and parents. His mother is a labourer and his father drives a truck, who comes home once a week or month. Whenever he comes home, he comes home heavily intoxicated and after coming home, he starts quarrelling with those people without any reason. After abusing and beating her, he first takes off her clothes and does dirty acts and then pointing towards those people, he asks them to suck his penis. On 27.06.2022, at around 08:30 pm, her father brought vegetables home and as soon as he entered the house, he threw the vegetables in his hand on her mother and started abusing her. Then at around 09:30 pm, her mother got up from those people and went to drink water, then her father forcibly dragged her younger 3 sister by her hand and started taking her to his room with bad intentions. He did not let go when she shouted and called her mother, then her mother came and rescued her sister. After that, her father started abusing her continuously. When her mother said not to abuse, her father slapped her mother due to which she got hurt in her left ear, then he started chasing those people saying that he will kill them. His father started running after her saying that he will kill all three of them, then his father made her run till Amlidih entrance saying, he will finish all of them. 6. After completion of investigation, the charge-sheet was filed before the Additional Sessions Judge, Dongargarh, District – Rajnandgaon (C.G.) for trial in accordance with law. 7. The trial Court has framed charges against the appellant under Sections 294, 323, 506, 509-A, 354-A, 325, and 354 of Indian Penal Code and Sections 12 and 10 of POCSO Act, 2012. The appellant abjured his guilt and pleaded innocence. 8. In order to establish the charge against the appellant, the prosecution examined as many as 10 witnesses and exhibited the documents (Exs.P-1 to P-16) . 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 convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 9. Learned counsel for the appellant submits that the learned trial Court failed to prove the case against the present appellant, there is no 4 specific allegation against the present appellant, there are general allegations against the appellant. The entire prosecution story was formed by family members to victim (PW-01) and framed by ASI Radha Borker (PW-10) and ASI Ranchhod Singh Sengar (PW-8), who were investigating OfÏcer to the entire case. She further submits that PW-7 has turned hostile and there is no independent witness who has supported the case of the prosecution. Further, to prove the age of the victim, apart from the birth certificate, no ossification test was conducted. Further, the mother of the victim has received simple injuries over her body. She further submits that the maximum sentence awarded to the appellant is 3 years under Section 8 of POCSO Act and the appellant has already served about 2 years and 8 months in jail. Looking to the entire evidence adduced by the prosecution, the alleged offence is not made out against the appellant and he has been falsely implicated in the present case. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 10.On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellant and submits that the prosecution has proved its case beyond reasonable doubt and the victim (PW-1), her sister (PW-2) and and mother (PW- 6) have clearly deposed the conduct of the appellant in their Court statements. It is further submitted that the injuries caused to the mother of the victim are grievous in nature. Thus, the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for. 5 11. I have heard the learned counsel for the parties and perused the record with utmost circumspection. 12.The issue that arises for consideration in the present appeal is whether the testimony of the victim/prosecutrix (PW-1) deserves acceptance and whether the prosecution has established the case of the appellant beyond reasonable doubt. 13. It is pertinent to observe 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 prosecutrix 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. 14. There are two victims in the case, out of which the age of victim-A is stated to be 16 years and the age of victim-B is stated to be 12 years. On behalf of the prosecution, the birth certificate of victim A, Article A- 2C, date of birth is shown as 19.09.2005 and the birth certificate of victim-B, Article A-1C, date of birth is shown as 15.10.2010. Both the victims have supported their date of birth in their police statements. Victim 'A' (PW-1) has stated her date of birth as 19.09.2005 in her Court statement and the date of birth of her younger sister victim-B as 15.10.2010. No contradictory statements regarding birth have been asked in the cross-examination. Victim B (PW-2) has also stated her date of birth in the court as 15.10.2010, which has not been contradicted in the cross-examination. The mother of the victim (PW- 6) has stated the date of birth of victim-A as 19.05.2009 while the date of birth of victim-B is 15.05.2010 and in the cross-examination she 6 has admitted that the date of birth of victim A is 19.05.2009 and the date of birth of younger daughter i.e. victim-B is 15.05.2010. 15. In the present case, proof of the original date of birth of both the victims has been presented in the form of birth certificate, contrary to which no documentary evidence has been presented in refutation. In such a situation, date of birth of the victim mentioned in the birth certificate will be considered as their actual date of birth. Therefore, the age of victim ‘B’ is found to be 12 years 04 months and the age of victim ‘A’ is found to be 16 years 09 months as per the date of birth given in their birth certificates as on the date of incident i.e. 29.06.2022. In such a situation, both the victims A and B are found to be minors and below 18 years of age at the time of the incident. 16. After the alleged incident, when the mother (PW-6) of the victims was sent to Dr. Kamlesh Jangde (PW-3) on 29.06.2022, he found injury and pain on her left ear. He further stated that the injuries in the ear of mother of the victims were of serious nature and her report is Ex.P-5. In cross-examination, he has stated that the victim was injured due to beating by her husband. He has further admitted that the mother of the victims was able to hear from both ears at the time of examination. 17. The victim's mother (PW-6) has also supported the incident in her Court statement and stated that on the date of the incident, when her younger daughter went to fetch water, the accused took her to his room by holding her hand and pulled her clothes. When she tried to free herself, the accused beat her and abused her and thrown them out of the house. This witness has stated that her husband opened his pants and told the children to suck his urinal spot. She has said that 7 the accused drove them till the entrance of the village and locked himself in the house from inside. 18. Further, upon perusal of the testimony made by the victim (PW-1) in her statement recorded under Section 164 CrPC, it transpires that she lives in village Amlidih with her mother (PW-06) and younger sister (PW-02). In her statement, she has stated that she studied in class 12 and her father/accused is a driver who comes home once in a week or fifteen days. On the date of incident when her father came to home from work, he was drunk, beat them, took his clothes off and did dirty things with them. She further stated that her father had bought vegetables which he threw on her mother and started abusing her and assaulted her. 19. As per above, the accused is guilty of sexual assault under Section 8 of the POCSO Act. Besides, the accused asking his two daughters, i.e. the victims, to remove his clothes and suck his penis proves that he has committed the offence of sexual harassment under Section 11(1) of the POCSO Act. Hence, the accused is also guilty of committing the offence of sexual harassment under Section 12 of the POCSO Act. As far as the question of obscene abuse is concerned, since the abuse took place inside the house of the accused and not in a public place, the offence under Section 294 of the IPC is not made out. But the accused slapping the mother of the victims and threatening to kill the three victims and making them run to the village gate at 12 in the night and keeping them outside for the entire night and sleeping in the house, proves that he has committed the offence under Sections 323 and 506 of the IPC. 8 20. Now coming to the medical evidence adduced; the medical opinion contained in the MLC (Ex.P-5) report dated 29.06.2022, it was opined by Dr. Kamlesh Jangde (PW-03) that upon assault made by the father of the victim/injured, she has suffered hearing loss & pain over left ear and the said injury was grievous in nature. 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 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 9 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.” 22. 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 10 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.” 23.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 harassment on the children are instances of perverse lust for sex where even innocent 11 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 difÏcult 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.” 24. 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 12 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 difÏcult to accept the version of the prosecutrix on its face value, it may 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 sufÏce.” 25. 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 13 lack of corroboration, apply to a child witness who is competent and whose version is reliable.” 26. 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 and restore the judgment of the Trial Court.” 27.Considering the statements of the victims/prosecutrix (PW-1 and PW- 2)) who have specifically stated the act of the present appellant, 14 statement of her mother (PW-6), statement of Dr. Kamlesh Jangde (PW-3), further considering the MLC report (Ex.P-5) of the injured (PW-6), 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 learned Additional Sessions Judge has rightly convicted the appellant. I do not find any illegality and irregularity in the findings recorded by the trial Court. 28.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 Conviction and sentence as awarded by the Additional Sessions Judge to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 29. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 30. 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. 31. Registry is 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/- Sd/- (Ramesh Sinha) Chief Justice Preeti