1 2025:CGHC:5221-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2259 of 2023 Tribhuvan Kumar Gandharwa S/o Malikram Gandharwa, aged about 30 years (at present 32 years), R/o Mahuvar Khar, Kargi Road Kota, Police Station Kota, Twhsil Kota and District Bilaspur Chhattisgarh. ... Appellant versus State of Chhattisgarh Through Station House Officer, Police of Police Station City Kotwali, District : Bilaspur, Chhattisgarh ... Respondent (Cause Title taken from Case Information System) ________________________________________________________ For Appellant : Mr. Ashutosh Shukla, Advocate For Respondent/State : Mr. Nitansh Jaiswal, Panel Lawyer ________________________________________________________ Hon'ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 29.01.2025 1. Heard Mr. Ashutosh Shukla, learned counsel for the appellant as well as Mr. Nitansh Jaiswal, learned Panel Lawyer, appearing for the appellant. 2. It has been stated by learned State Counsel that notice has been served upon PW-2, father of the victim. 3. Today, though the matter is listed for hearing on I.A. No. 02 of 2023, which is an application for suspension of sentence and 2 grant of bail to the appellant, however, with the consent of learned counsel for the parties, the appeal is heard finally. 4. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 12.09.2023 passed by the Additional Sessions Judge, Second Fast Track Special Court, Bilaspur (C.G.) in Special Criminal Case (POCSO) No. 63/2021, whereby the learned 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 the IPC Rigorous imprisonment for 07 years and fine of Rs.1,000/-, in default of payment of fine, additional R.I. for 04 months. U/s 5(m) / 6 of the POCSO Act Rigorous imprisonment for 20 years and fine of Rs.3,000/-, in default of payment of fine, additional R.I. for 01 year. 5. The prosecution case in brief is that the complainant/ informant/ victim's father (PW-2) appeared at the City Kotwali, Bilaspur Police Station on 23.03.2021 at 17:15 hrs and lodged an oral report to the effect that he works as a waiter, he had gone to his work on 23.03.2021 at about 02:00 pm, his wife called him and told that a rickshaw puller has taken their daughter victim aged 8 years somewhere in his rickshaw by luring her to give Puttha (a type of cardboard). On receiving the information, he immediately went 3 home, then his sister-in-law’s son/victim's cousin (PW-4) told him that he and the victim were going to the old bus stand junk shop to sell Puttha, at about 02:00 pm when they reached near the cloth shop of Badsaiya Traders, at that time a rickshaw puller came there and lured them to get a Puttha near Jwali Nala, then the victim got tempted and sat in the rickshaw, and the rickshaw puller went away with her. Then they searched for the victim nearby but there was no trace of the victim. On the report of the applicant/victim's father (PW-2), a first information report (Ex.P-4) was registered against an unknown rickshaw driver in Police Station City Kotwali under Section 363 of the IPC under Crime No. 80/2021. 6. During the course of investigation, on 25.03.2021, spot map was prepared vide Ex.P-1. A letter (Ex.P9) was sent on 31.03.2021 to the concerned Tehsildar for preparing Patwari Map of the incident site, whereupon map of the incident site was prepared by the concerned Patwari vide Ex.P-6. After taking consent from mother of the victim vide Ex.P-7, the victim was sent to CIIMS hospital, Bilaspur for her medical examination vide Ex.P-10, wherein she was medically examined by Dr. Neelu Ahuja (PW-7) and report was given vide Ex.P-10A. Test identification of the accused was conducted vide Ex.P-3, wherein the victim has identified the accused and thereafter, he was arrested vide Ex.P-19 and information of his arrest was given to his family member vide Ex.P- 20. The accused was sent to CIIMS hospital, Bilaspur for his medical examination vide Ex.P-11, wherein he was medically 4 examined by Dr. Sunil Pendro (PW-8) and report was given vide Ex.P-11A. A yellow plastic bag, which had 'Cow Calf J.K. Animal Feed Raipur' written on it and a photo of a cow eating fodder has been seized vide Ex.P-13. A three-wheeled foot-driven rickshaw with Burman 12 number written on the back and an orange coloured cotton towel with Jai Shri Ram and Om written in red colour were seized at the instance of accused vide Ex.P-14. One register of AC Mark Stationery Company was seized vide Ex.P-15. Two sealed semen slides and one sealed panty of the victim was sezied vide Ex.P.-16. A blue coloured underwear of the accused with 'Sunny Gentleman' written on it in English was seized vide Ex.P. 17. In order to ascertain the age of the victim, a certified copy of dakhil kharij register (Ex.P-28C) was seized vide Ex.P-8. Memo was sent to concerned Judicial Magistrate First Class for recording statement of the victim under section 164 Cr.P.C. vide Ex.P-23. Articles seized vide Exs.P-16 & 17 were sent for chemical examination to Regional Forensic Science Laboratory, Bilaspur and receipt of the same was obtained vide Ex.P-24 and thereafter, FSL report was obtained vide Ex.P-25. Statements of the witnesses were recorded and after completion of investigation, when evidence of crime was found against the accused, the charge sheet has been presented before the Court of Additional Sessions Judge, Second Fast Track Special Court, Bilaspur for trial. 7. Charges were framed against the accused under Sections 363, 376AB of the IPC and Section 5(m)/6 of the Protection of Children 5 from Sexual Offences (POCSO) Act and were read out to the accused, who denied the charges and sought trial. 8. So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 18 witnesses and exhibited 28 documents in support of its case. Statement of the appellant under Section 313 CrPC was also recorded in which though he pleaded his innocence and false implication in the case, but did not give any defense evidence in his defence. 9. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 12.09.2023 convicted and sentenced the appellant in the manner mentioned in the opening paragraph 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. 10. 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 are highly unreliable. The age of the victim has not been proved and no ossification test for determining the age has been done which makes the whole case of prosecution doubtful. Hence, the conviction is liable to be set aside. 6 11. On the other hand, learned State counsel for the State/respondent submitted that the appellant, who is already a married person, has committed a heinous crime of rape against a minor girl aged about 9 years and 5 months and 25 days, forcibly without her consent abducting her and luring luring her to give Puttha (a type of cardboard) 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. 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 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? 14. 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. 15. In Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263, the Hon’ble Supreme Court laid down the guiding 7 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; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical 8 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.” 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 9 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 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, 10 that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.” 16. In the present case, the prosecution has presented copy of the Dakhil-Kharij register of the victim (Ex.P-28C), in which Sl.No. 1920 contains the name of the victim, her father and the date of birth of victim as 28.09.2011, which has been seized from Smt. Kanta Thawait (PW-14), Headmistress of Om Vidya Mandir who has also verified the same. 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 28.09.2011, hence, we are of the considered opinion that the trial Court has rightly held that the date of birth of the victim is 28.09.2011 and her age on the date of incident i.e. 23.03.2021 was 9 years and 5 months and 25 days, as such, we hereby affirm the said finding. 17. The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 363 of the IPC ? 18. The appellant has been convicted for offence under Section 363 of the IPC, which is punishable for kidnapping. Kidnapping has been defined under Section 359 of the IPC. According to Section 359 of the IPC, kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states as under:- 11 “361. Kidnapping from lawful guardianship.-Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.” 19. The object of Section 359 of the IPC is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients:- (1) Taking or enticing away a minor or a person of unsound mind. (2) Such minor must be under sixteen years of age, if a male, or under eighteen years or age, if a female. (3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind. (4) Such taking or enticing must be without the consent of such guardian. So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18 years of age; (ii) such minor was in the keeping of a lawful guardian, and (iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian. 20. The Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras1, took 1 AIR 1965 SC 942 12 the view that if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so and held that if evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian and held as under:- “It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.” 21. Reverting to the facts of the present case, in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra), it is evident that when the victim along with her cousin (PW-4) were going to the old bus stand junk shop to sell Puttha, at about 02:00 pm when they reached near the cloth shop of Badsaiya Traders, at that time the accused came there and lured them to get a Puttha near Jwali Nala, then the victim got tempted and sat in the 13 rickshaw, and the accused abducted her and committed forcible rape on her without her consent. As such, we are of the considered view that the trial Court is absolutely justified in convicting the appellant for offence under Section 363 of the IPC. 22. The next question for consideration before us is whether the appellant has committed rape on minor victim ? 23. The victim (PW-1), who is an important witness, has stated in her statement that on the date of incident while she was going with my elder brother who is 11 years old to sell buttocks, the accused met them at a sari shop and told them that he will get them Puttha. She agreed to go with him to get Puttha and her brother had gone home from there. The accused made her sit in his rickshaw and took her far away. Then she told him that she had to go to her home, upon which, the accused told her that he will drop her home ‘Keep quiet’. She further stated that the place where the accused took her had a lot of trees and plants and was like a forest. The accused asked her to remove her clothes. She got scared and removed her clothes and the accused also removed his clothes. The accused made her lie down and was touching her body here and there, the accused was putting his bathroom tool at the place where she use the bathroom due to which she was feeling pain, then she threw a stone at the accused and quickly wore her clothes and picked up 30 Rupees of the accused which had fallen there and ran towards the road and an auto was running there, so she sat in the auto, and asked the auto driver to 14 drop her at Old Bus Stand, Geetanjali Nagar, so he dropped her, she gave 10 Rupees to the auto driver and came back to her house. She further stated that after going a little further, she found her elder mother, she shouted her name and she went to her. Mummy Papa, Shiva uncle had come there, police vehicle was there, her mother asked where he had taken her, after that she took them half way and told them that she don't know the way ahead. She also stated that she did not tell anything at that time due to fear, later she told her mother about the incident. After that they went to the police station, there she told everything. She was also taken to the doctor and once before also she had come to the court to give a statement. She has stated that at the police station, the lady police had questioned her, then she told everything. 24. Dr. Neelu Ahuja (PW-7), who has medically examined the victim, has stated that on external examination victim, though no injury was found, but her hymen was torn and she has stated that no definite opinion can be given regarding sexual intercourse with the victim. No question has been asked in cross-examination. She has prepared two vaginal slides of victim. 25. As per FSL report (Ex.P-25), semen stains and human sperm were not found in the underwear of the victim as well as in the underwear of the accused. As such, we are of the considered opinion that the prosecution has failed to establish its case 15 beyond reasonable doubt that the appellant has committed rape on minor victim. 26. In the case of Ganesan v. State, (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. 27. In the case of State (NCT of Delhi) v. Pankaj Chaudhary, {(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. 28. In the case of Sham Singh v. State of Haryana, {(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 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 testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. 29. Applying the law laid down by the Supreme Court in the cases (supra) to the facts of the case on hand and as observed 16 hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the victim though no definite opinion regarding sexual intercourse has been given by doctor, who has medically examined the victim, but considering the statement given by the victim (PW-1), supported by MLC report, wherein it has stated that her hymen was found to be ruptured and by FSL report, whereby semen and human sperm has been found in the underwear of the victim, who was aged about 9½ years, it is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the victim can be sustained. 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, we are 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, 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. 32. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 17 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 12.09.2023. 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/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Chandra