1 2025:CGHC:9662 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1748 of 2022 Hemdas S/o Lalludas Mahant Aged About 25 Years R/o Village Tendutoha, Police Station - Sakti, District : Janjgir-Champa, Chhattisgarh. ... Appellant versus State of Chhattisgarh Through Station House Officer, Police Station - Sakti, District : Janjgir-Champa, Chhattisgarh. ... Respondent For Appellant : Mr. Dhirendra Prasad Mishra, Advocate For Respondent/State : Ms. Smriti Shrivastava, Panel Lawyer Hon'ble Mr. Ramesh Sinha, Chief Justice Judgment on Board 25.02.2025 1. Today, though the present appeal has been listed for hearing on IA No.02 of 2022, which is application under Section 389 of the CrPC for suspension of sentence and grant of bail, but with the consent of learned counsel for the parties and considering the period of detention of the appellant, the appeal is being heard finally. 2. Accordingly, IA No. 02 of 2022 stands disposed of. RAHUL DEWANGAN Digitally signed by RAHUL DEWANGAN 2 3. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 26.04.2022 passed by the learned Special Judge (F.T.S.C.), Sakti, District – Janjgir-Champa (C.G.) in Special Criminal Case No. 22/2020, whereby the trial Court has convicted and sentenced the appellant with a direction to run all the sentences concurrently in the following manner : CONVICTION SENTENCE U/s 363 of IPC Rigorous imprisonment for 1 year with fine of Rs.500/-, in default of payment of fine additional R.I. for 1 month. U/s 366 of IPC Rigorous imprisonment for 3 year with fine of Rs.1,000/-, in default of payment of fine additional R.I. for 6 months. U/s 6 of POCSO Act Rigorous Imprisonment for 10 years with fine of Rs.5,000/-, in default of payment of fine additional R.I. for 6 months. 4. Case of the prosecution, in brief, is that the complainant/father of the victim (PW-4), went to the Police Station – Sakti and filed a written report alleging inter alia that on 27.11.2018 at 9 pm, everyone after having dinner slept in the room. On 28.11.2018, when the father of the victim (PW-3) woke up at 4 am, he found that his daughter, the victim girl, was not at home. He started searching for her among his relatives but could not find her. He suspects that someone has kidnapped the victim (PW-4), whose date of birth is 12.12.2003. On the said report of the complainant/father of the 3 victim (PW-3), a crime was registered against the unknown accused under Section 363 IPC and investigation was taken up. 5. During the Course of investigation, the victim (PW-4), who was lured and kidnapped by the accused/appellant Hemdas, was recovered and a recovery panchnama (Ex.P-02) was prepared. The Police statement of the victim, CWC and statement under Section 164 of the CrPC were recorded before the learned Judicial Magistrate, on the basis of which it was found that accused/appellant Hemdas, along with his partner Vijay Vishwakarma, used to kidnap the victim (PW-4) on a motorcycle by luring her to keep her as his wife and had made physical relations with her, due to which the victim was found to have given birth to a child, therefore, Sections 366-A, 376(2)(झ), 417, 506 and 34 of the IPC and Sections 4 and 6 of the POCSO Act were also added to the case. During the course of investigation, consent was obtained from the mother of the victim and the genitals examination of the victim was conducted. When evidence of crime was found against the accused/appellant under the said Sections, they were duly arrested. During the investigation in the case, a spot map (Ex.P-05) was prepared by the Investigating Officer and the Patwari. The seizure proceedings were carried out according to the seizure memo. The statements of the witnesses were also recorded, and after completion of investigation, charge-sheet was prepared and presented before the learned trial Court. Charges were framed against accused/appellant, Hemdas for the offence punishable 4 under Sections 363, 366, and Section 6 of POCSO Act, 2012, in the alternative, Section 376 Sub-section 2(झ) and 506 Part-II of the IPC and against the co-accused, Vijay, charges were framed under Section 363 of the IPC, for which the accused persons denied the charges and claimed for trial. 6. So as to prove the complicity of the accused/appellants in the crime in question, the prosecution has examined as many as 15 prosecution witnesses and exhibited 32 documents in support of its case. Statement of the accused/appellant under Section 313 CrPC was also recorded in which he pleaded his innocence and false implication in the case. The accused did not give any defense evidence in his defence. 7. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 26.04.2022 convicted and sentenced the appellant in the manner mentioned in paragraph No.3 of this judgment, against which this appeal under Section 374(2) of the CrPC has been preferred by them calling in question the impugned judgment. 8. Learned counsel for the appellant vehemently argued that the learned trial Court has failed to properly appreciate the evidence led by the prosecution and has wrongly convicted the appellant. The prosecution failed to prove the case against the appellant beyond reasonable doubt. The statement of the victim is full of conjectures and surmises and is highly unreliable. The age of the 5 victim has not been properly proved and the victim is a consenting and willing party. Hence, the conviction is liable to be set aside. 9. On the other hand, learned State counsel submitted that the appellant has committed a heinous crime of rape against minor girl, aged about 14 years 11 months and the same has been duly proved by the prosecution beyond reasonable doubt. As such, the judgment of conviction and sentence awarded by the learned trial Court is just and proper warranting no interference. 10. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 11. The first question for consideration before this Court would be, whether the trial Court has rightly held that on the date of incident, the victims were minor? 12. When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredient 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 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years. 13. In Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263, the Hon’ble Supreme Court laid down the guiding 6 principles for determining the age of a child, which read as follows : “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under : “12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; 7 (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 8 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW- PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material 9 whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.” 14. In the present case, the prosecution has presented original and certified copy of Dakhil Kharij Register (Ex.P-10 & Ex.P-10C) of the victim, presented through Mrs. Basanti Patel, Head Mistress (PW-06). In the said documents, the date of birth of victim is mentioned as 12.12.2003. The defence has not presented any oral or documentary evidence to refuse the said date of birth, therefore, there is no reason to disbelieve the date of birth of the victim, as 12.12.2003, hence, we are of the considered opinion that the trial Court has rightly held that the date of birth of the victim is 12.12.2003 and her age on the date of incident i.e. 28.11.2018 was 14 years and 11 months. 15. The next question for consideration is whether the appellant has committed rape on minor victim ? 16. In this regard, the statement of the victim (PW-4) is of much importance. The victim (PW-4) in her statement has stated that in the year 2018, Hemdas and his accomplice Vijay took her away on a motorcycle at 4 am and threatened to kill her parents if she did not go with them, at the same time, her parents were away attending a musical event, and no one was home. The appellant, Hemdas, kept her at Manoj Satnami's house in village Barekela 10 for a month and had established physical relations with her, on account of which she became pregnant and gave birth to a child on 17.03.2020. Moreover, in cross-examination, victim (PW-04) had also admitted that Vijay Vishwakarma did not do anything to her and did not take her away. However, she maintained that appellant, Hemdas took her away and had forcefully made physical relations with her. From the testimony of victim (PW-04), it is clear that it was accused/appellant, Hemdas, who took her away from her home and had forcefully made physical relations with her by threatening to kill her parents, which resulted the pregnancy of the victim. 17. The father of the victim (PW-3), has stated in his evidence that the accused/appellant, Hemdas took his daughter away from her house at 4 am. They searched a lot in the vicinity and after being failed to find her, he went to the Police Station and reported the matter, after about 2 years, his daughter came home alone and at the same time she was pregnant. She told that the appellant, Hemdas had beaten her, and therefore, she came back to home, and the father of the victim (PW-03) has also put his signature in the First Information Report (Ex.P-4). He has further stated in his statement that his daughter/victim had told him that the accused/appellant, Hemdas, has abducted his daughter and committed bad things (rape) with her. There has been no substantial refutation of the statements of the witness in his cross- examination. 11 18. In support of the statement of the victim’s father (PW-03), M.P. Tandon, Retd. Inspector (PW-9) has stated that he was posted as SHO in Police Station – Sakti, and during his posting, on 03.12.2018, complainant Bhaiyalal/victim’s father came to Police Station – Sakti and lodged the FIR (Ex.P-4) regarding the kidnapping of his daughter/victim girl, and he has also signed in the FIR. The statement of M.P. Tandon (PW-09) is also uncontested in cross-examination. From perusal of the FIR, it is confirmed that the father of the complainant (PW-03) had lodged a report on 03.12.2018 that his daughter/victim was kidnapped by some unknown person, on which the FIR has been registered. 19. Thus, the statement of the victim is also confirmed by the statement of the victim’s father (PW-3), and the statement of the father of the victim (PW-3) also corroborates with the statements of mother of the victim (PW-2). The First Information Report (Ex.P-4) also confirms the above statements of the victim, victim's father, as well as the mother of the victim. 20. Dr. Seema Nandini Choudhary, Medical Officer (PW-01), stated that on 03.05.2020, she had medically examined the victim (PW- 4) and found injuries on her face and private parts. She also stated that the complainant had given birth to a child on 17.03.2020, and that the child was born as a result of physical relations with Hemdas. Thereafter, the sexual intercourse had taken place on 03.04.2020. She has also stated that the injury marks of the vagina were of normal nature two to three days ago 12 and there were marks of delivery on the stomach. On internal examination, pubic hair was present. Labia majora were separate, labia minora were visible, vaginal orifice was not visible. There was no external injury present in the genitals. She has also stated that she had cut the pubic hair of the victim and prepared two slides of vaginal discharge, sealed them and handed them over to the lady constable, advising her for chemical tests. 21. Ramendra Kumar Marawi, Sub Inspector (PW-8) has also stated in his statement that on 27.05.2020 he had written a letter (Ex.P- 23) to the learned Special Judge FTSC, Sakti, regarding getting DNA test of the child born from the womb of the victim done, in Crime No. 687/2018 registered at Police Station – Sakti. He has also stated that he had written a letter to SDM, Sakti (Ex.P-24) regarding permission to take blood sample of the child born from the womb of victim girl for getting DNA test done. Similarly, on 11.06.2020 he had written a letter to Block Medical Officer, CHC (Ex.P-25) regarding collecting and preserving blood samples for DNA test of accused, victim and her child. Similarly, on 18.06.2020, he had written a letter to the Jail Superintendent, Sub Jail Sakti (Ex.P-26) regarding cooperation in collecting blood samples of accused/appellant for DNA test. He had taken consent from the mother of the victim (Ex.P-8) for taking blood samples of the victim and her child for DNA test. Similarly, he had also taken consent from accused/appellant (Ex.P.-27) regarding taking his blood sample for DNA test. 13 22. It is also clear from the DNA test reports (Ex.C-2) that the accused and the victim are the biological parents of the child born from the womb of the victim which has been accepted by the accused in his examination. This confirms the statement of the victim that the child was born from the womb of the victim on account of the physical relationships established by the accused/appellant with the victim. This leads to the conclusion that the accused had committed rape/grave penetrative sexual assault on the victim girl. 23. The victim girl and the witnesses have not revealed any circumstances related to the accused being falsely implicated during the evidence, nor has the accused said anything in his statement under Section 313 Cr.P.C. regarding being falsely implicated. In such a situation, there is no reason to disbelieve the said statements of the prosecution witnesses. 24. According to the above stated evidence presented by the prosecution, the statement of the victim girl, who was 14 years of age at the time of the incident, was not challenged by the defence that the accused had abducted the victim girl from her house on the date of the incident by luring her, and he had attempted to have committed forcefully sexual intercourse with her, due to which the complainant gave birth to a son. Therefore, there is sufficient basis to draw a presumption against the accused in relation to the said crime and the accused has completely failed to refute the said presumption. 14 25. In the case of Ganesan v. State, reported in (2020) 10 SCC 573, the Supreme Court observed and held that that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. 26. In the case of State (NCT of Delhi) v. Pankaj Chaudhary, reported in (2019) 11 SCC 575, it was observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. 27. In the case of Sham Singh v. State of Haryana, reported in (2018) 18 SCC 34, the Supreme Court observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her/his statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her/his testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her/his statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. 28. Applying the law laid down by the Supreme Court in the cases (supra) to the facts of the case on hand and as observed hereinabove, I see no reason to doubt the credibility and/or 15 trustworthiness of the victim and also considering the statement given by the victim (PW-4), supported by the statement of other prosecution witnesses, wherein it has stated that the accused/appellant by luring the victim girl for keeping her as his wife, abducted her and forcefully committed sexual intercourse with the victim, on account of which she gave birth to the child also, and the same is also supported by the medical examination and the DNA reports of the accused/appellant, victim and her child. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the victim can be sustained. 29. Thus, it is found proved that on 28.11.2018, the accused Hemdas committed the offense of kidnapping the victim from her residence without the consent of her lawful guardians, by taking her away on a motorcycle. Subsequently, the accused Hemdas committed the offense of aggravated penetrative sexual assault upon the victim, which resulted the birth of a child. 30. The view taken by the learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record and as such, I am of the opinion that in the present case, the only view possible was the one taken by the learned trial Court. 31. From the above analysis, I am of the considered opinion that the prosecution has been successful in proving its case beyond 16 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. 32. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 33. 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 26.04.2022. 34. 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 appellant is undergoing his jail sentence 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. Sd/- (Ramesh Sinha) Chief Justice Rajshekhar/Rahul