1 2025:CGHC:25756-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1663 of 2021 Bhuru Thakur @ Mahendra Singh Thakur S/o Mohan Singh Thakur, aged about 26 years R/o Near Maruti Bread Factory, Satnami Para, Police Station Telibandha, Raipur District Raipur Chhattisgarh ... Appellant versus State of Chhattisgarh, through the District Magistrate, Raipur District Raipur Chhattisgarh ... Respondent For Appellant : Ms. Sonia Kuldeep, Advocate For State/Respondent : Mr. Malay Jain, Panel Lawyer Hon'ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 19.06.2025 1. The appellant has preferred this appeal under Section 374(2) of Cr.P.C. questioning the impugned judgment dated 27.09.2021 passed in Special Criminal Case No. 52/2019 by which the learned Additional Sessions Judge, First Fast Track Special Court, Raipur, District – Raipur (C.G.) has convicted the appellant under Section 376AB of the Indian Penal Code (for short, ‘the IPC’) and BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.06.20 17:41:17 +0530 2 sentenced him to undergo rigorous imprisonment for 20 years and fine of Rs. 50,000/-, in default of payment of fine, additional RI for 01 years. 2. It is pertinent to mention here that though the appellant has also been convicted under Section Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act’), but since punishment under Section 376AB of the IPC is greater in degree, therefore, in view of provisions contained in Section 42 of the POCSO Act, the appellant has been convicted only for offence under Section 376AB of the IPC. 3. Case of the prosecution, in short, is that the mother of the victim lodged a written complaint in Telibandha Police station to the effect that on the night of 15.02.2019 she had gone to work in a party, her husband was at home. When she returned home from work, her husband informed her about the incident. On questioning her daughter victim by her, the victim told that Bhuru Thakur, who lives in her neighbourhood, had forcibly opened her panties with bad intentions, then the victim's brother had come, seeing him Bhuru ran away. On the basis of the written complaint of mother of the victim, FIR No. 93/2019 under Section 354 IPC and Section 8 of the POCSO Act 2012 was registered in Telibandha Police Station and the case was taken into investigation. While recording the statement of the victim under Section 161 CrPC, the victim said that the accused had done dirty things with her and through gestures, accused Bhuru had inserted 3 his finger in her urination passage. After the statement of the victim, Section 378 of the IPC and Section 4 of the Protection of Children from Sexual Offences Act 2012 were added in the case and the accused was arrested and after complete investigation in the case, the challan was prepared and sent to the Court by Shri Rajiv Kumar, the then Seventh Additional Sessions Judge (F.T.C.), Raipur. When the charges against the accused under Section 376 AB of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act 2012 were framed and read out and explained to him by the then Seventh Additional Sessions Judge Shriman Rajiv Kumar on 15.05.2019, he rejected the charges and claimed trial. Thereafter, as per the Official Miscellaneous Order No. K/A-11-04/96 Raipur, dated 09.12.2019, the case was transferred from the Court of Seventh Additional Sessions Judge to the Court of Additional Sessions Judge, First Fast Track Special Court, Raipur, District – Raipur (C.G.) on 24.12.2019. 4. The prosecution recorded the statements of total 07 prosecution witnesses to prove the charges against the accused and marked exhibits on a total of 26 documents. When the statement of the accused was taken under Section 313 of the Code of Criminal Procedure, he declared himself innocent and said that he has been implicated in this false case, so that they does not have to pay the loan amount. Also, the appellant / accused has expressed his intention to give evidence in his defence. On behalf of the 4 accused, the statement of Nafesingh Soni (DW-01) has been recorded as defence evidence and thereafter the accused concluded his defence evidence on 06.09.2021. 5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 27.09.2021, finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant as mentioned in the opening paragraph, against which, this appeal has been filed. 6. Ms. Sonia Kuldeep, learned counsel for the appellant submits that the allegations levelled against the appellant are false and baseless. The learned trial court committed error of law convicting the accused/appellant, though there is no absolute evidence that the accused/appellant has committed aforesaid offence. The evidence of the victim and her parents as well as other witnesses are not corroborated by other prosecution witnesses. She further submits that there is no evidence in the case against accused/appellant as neither undress to the victim nor try to commit the rape with the victim by the present accused/appellant, there is no corroborative evidence brought on record that the present accused/appellant was acted the aforesaid work. She also submits that initially FIR has been lodged under Section 354 of the IPC and Section 8 of the POCSO Act and when the victim has tutored by her parents, she has made false allegation that the appellant has inserted his finger on her urinating tract. She contended that the victim herself has turned 5 hostile and some other prosecution witnesses who were the material witnesses of the prosecution, turned hostile. They have not supported the prosecution case and they did not say anything against the accused/appellant. Further, they denied the police statement which was recorded by the police. The learned Trial Court has failed to appreciate the evidence of the defence witness (DW-1) in its right perspective, who has specifically stated that the accused was sleeping in his home since 1.00 P.M. in drunken condition. The doctor has not supported the prosecution case because there is no any injury sustained to the victim. The learned trial Court has committed gross error in not appreciating the evidence of the doctor. She also submitted that the victim and her relatives as well as the interested witnesses have not supported the prosecution case and contradictory to each other, therefore, findings of the learned trial Court regarding the conviction of accused/appellant is frivolous and vexatious. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 7. On the other hand, Mr. Malay Jain, learned Panel Lawyer appearing for the State / respondent submits that the appellant has committed a heinous crime of rape against a minor girl aged about 5 years. He further submits that though the doctor has not given any definite opinion about commission of rape, but as per evidence of the victim (PW-1), the accused has removed her panties, put his finger on her urinary tract and then removed his 6 clothes, and at the same time when her brother came, the accused fled away from the spot. The said evidence has been duly corroborated by the evidence of brother of the victim (PW-3). Thus, the prosecution has proved the case against the appellant beyond reasonable doubt, therefore, conviction of the appellant is well founded and well supported by the evidence leading to the inference that the appellant has committed the aforesaid offence, as such, the trial Court has rightly convicted the appellant for the aforesaid offences in question. He would further submit that apparently the victim was less than 12 years of age on the date of incident and in that view of the matter, the sentence awarded by the trial Court is absolutely justified and it be maintained by dismissing the instant appeal. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The first question for consideration before this Court would be, whether the trial Court is rightly held that on the date of incident, the victim was minor? 10. When a person is charged for offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredients to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 7 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years. 11. In the present case, the prosecution has seized and presented the vaccination card related to the birth of the victim and the Aadhar card of the victim, on which her date of birth is mentioned as 27.11.2013 and since defence has not challenged the documentary and oral evidence presented by the prosecution regarding the victim's date of birth being 27.11.2013, it is established that the age of the victim on the date of incident i.e. 15.02.2019 is around 05 years. Thus, at the time of the incident, the victim is a minor girl below 12 years of age. 12. The next question for consideration before us is whether the appellant has committed rape on minor victim ? 13. Rape has been defined in Section 375 of the IPC as follows : “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, 8 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 descriptions: First. Against her will. 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. 9 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.” 14. The victim (PW-1) in her statement has specifically stated that she know the accused present in the Court. The accused lives near her house. At the time of incident she was alone at home. The accused came near her gate and called her to take chocolate, so she went to his house. The house of the accused / Bhuru Bhaijya is next to her house, when she went to his house, the accused removed her panties, put his finger on her urinary tract and then removed his clothes, at that time his brother came there. On a question being made by the trial Court that did the accused keep the door of the incident spot closed or not? She replied that when 10 the accused took her inside his house and inserted his finger in her urinary tract, he did not close the door of the house, he only put up the curtain. This witness further stated that when her brother came there, the accused had put his pants back on and ran away from there. His brother came home and told everything to his father and she came and told everything to her mother. Then she went to the police station with her mother on the same day after the incident and her mother made a complaint against the accused at the police station. The police officer questioned her about the incident. The police officer took her statement. They also took her to the doctor. In her cross-examination, she denied the suggestion that she has stated as per what her mother had told to her. 15. PW-2, the mother of the victim has stated that on the date of incident she had gone to work in a wedding party. She returned at about 9:00 P.M. On returning, her husband told her that accused Bhuru was removing the panties of their daughter/victim and was inserting his finger in her urination area. After which he was opening the zip of his pants. At that time their son could reach there, after which accused/Bhuru ran away from there. In her cross-examination, though she has admitted that there was monetary transaction between them and the accused, she herself says that there was transaction of vegetables, food, drinks and everything between the accused and her family, but denied the suggestion that since they had a dispute with the accused 11 regarding the demand of loan amount and due to that they have implicated the accused in false allegations. 16. PW-3, brother of the victim has specifically stated in his statement that while the accused was inserting his finger in the urinary tract of the victim / her younger sister, he reached there and on his reaching, the accused ran away from there. He had told his father about the incident after which they went to the police station and lodged a report. 17. The father of the victim (PW-4) in his statement has stated that at the time of incident he was sleeping at home and his son came and told him that the accused has pulled his daughter/victim's panties and was putting his finger in her urination area and he woke up, the accused was running away from there by increasing his chain. His wife works as a labourer. After returning from work, they told his wife about the incident and then lodged a report at the police station. In cross-examination, this witness has denied the suggestion that when his came, he consulted with his wife and filed a false report and got this false case registered. 18. In the instant case, it was significantly established by the prosecution that the victim is minor girl and the accused has removed the panties of the victim and put his finger on her urinary tract and then removed his clothes, and at the same time when brother of the victim came there, the accused / appellant fled away from the spot. Thus, this case falls under clause (b) of Section 375 of the IPC. 12 19. In the present case, although the medical examination report does not corroborate the statement of the victim, yet after the incident, during the investigation, her statement was recorded under Section 161 of the CrPC, in which she has specifically stated that the accused has removed her panties, put his finger on her urinary tract and then removed his clothes, at that time when his brother came there, the accused fled away from the spot. Subsequently, the victim has narrated the same version in the statement under Section 164 CrPC. The same statement was also given in the Court. In her Court statement, the victim has stated that the accused has removed her panties, put his finger on her urinary tract and then removed his clothes, at that time when his brother came there, the accused fled away from the spot. Therefore, there is no reason to doubt the above statement made by the victim against the accused. The statement of the victim has also been supported by the brother of the victim, who had also specifically stated that while the accused was inserting his finger in the urinary tract of the victim / her younger sister, he reached there and on his reaching, the accused ran away from there. In the above situation, the argument made by learned counsel for the accused that they have been implicated in a false case without any basis, finds no force. 20. Section 6 of the POCSO Act reads as under: “6. Punishment for aggravated penetrative sexual assault.-- (1) Whoever commits aggravated penetrative 13 sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. (2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.” 21. Section 376AB of the IPC reads as under: “376AB. Punishment for rape on woman under twelve years of age.-- Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.” 22. Thus, in our considered opinion, the above chain of circumstances is complete and leads only to one conclusion that it was the accused/appellant who committed the aforesaid crime. The view taken by learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record. Thus, we are of the opinion that in the present case, the only view possible was the one taken by the trial Court. Since the 14 victim was below the age of 12 years on the date of incident, hence, offence under Section 376AB of the IPC and Section 6 of the POCSO Act is fully proved against the appellant. 23. Section 42 of the POCSO Act, 2012 reads as under: "42. Alternate punishment.- Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 3540, 370, 370A, 375, 376, 376A, 376C, 3760, 376E or section 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree. 42A. Act not in derogation of any other law. - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency." 24. The learned trial Court has rightly sentenced the appellant under Section 376AB of the IPC in light of Section 42 of the POCSO Act as the sentence provided under Section 376AB of the IPC is of a greater degree. No leniency can be shown towards the appellant as he has sexually assaulted the prosecutrix aged below 12 years of age. 25. From the above analysis, we are of the considered opinion that 15 the prosecution has been successful in proving its case beyond reasonable doubt and 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. 26. Accordingly, the criminal appeal being devoid of merit is liable to be and is hereby dismissed. 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 and order dated 27.09.2021. 28. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their 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, if so advised, with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- Sd/- Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Bablu