1 2025:CGHC:11365-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2252 of 2023 Chandrakant Gupta S/o Late Sukhdev Prasad, Aged About 46 Years R/o Mangla Chowk, Nehru Nagar, Janta Quarter, Thana Civil Line, District Bilaspur Chhattisgarh. (Address As Per Judgement Whereas In Affidavit Sworn By Appellant, Police Station - Mahila Thana Bilaspur Is Mentioned) ... Appellant(s) versus State Of Chhattisgarh Through Mahila Thana Bilaspur District Bilaspur Chhattisgarh. ... Respondent(s) For Appellant(s) : Mr. Alok Kumar Dewangan, Advocate For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Judgment on Board Per Ramesh Sinha, CJ 07.03.2025 1. This appeal arises out of the judgment of conviction and order of sentence dated 03.02.2023 passed by the learned Upper Sessions Judge, Second Fast Track Special Court, Bilaspur, MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.03.11 10:56:54 +0530 2 District- Bilaspur (C.G.) in Special Criminal Case (POCSO Act) No. 96/2022, whereby the appellant has been convicted as under:- Conviction under Section Sentence (Rigorous imprisonment) Fine In default of payment of fine add. imprisonment Section 363 of the IPC 7 years Rs. 1000/- 04 months Section 366 of the IPC 10 years Rs.1000/- 06 months Section 3 read with Section 4 of POCSO Act 20 years Rs. 2,000/- 1 year All sentences have been directed to run concurrently. 2. The prosecution story, in brief, is that the complainant /informant /victim aged 15 years appeared at the Women's Police Station Bilaspur on 24.06.2022 and submitted a written complaint application to the effect that about 1 year ago Chandrakant Uncle (accused) called her to give her chocolates, so she went to his house. In the afternoon there was no one in their house, at that time he took her to the upper room and took off her clothes and did wrong things with her. Chandrakant Uncle (accused) had inserted his main part in her main part. When she screamed, Uncle (accused) threatened her that he would speak ill about her everywhere, tell her mother, on which she got scared that her mother would beat her, that is why she did not go home and tell 3 her mother about Uncle (accused). Two-three days ago her mother saw Uncle calling her by gesturing, then when her mother asked her, she told everything with fear. She wants action. On the complaint of the applicant/victim, a First Information Report was registered against the accused in Women's Police Station Bilaspur under Crime No. 34/2022 under Sections 363, 376, 506 of the Code and Sections 3, 4 of the Protection Act. Statements of witnesses were recorded in the case. The accused was arrested after taking action for seizure etc. 3. The charge-sheet was prepared by the Court against the accused under Sections 363, 376, 506 of the Code and Sections 3, 4 of the Protection Act and was read out and explained to the accused, but the accused denied the charges and claimed trial. 4. In order to establish the charge against the appellant, the prosecution examined as many as 12 witnesses and exhibited the documents (Exs.P-1 to P-25). After completion of prosecution evidence in the case, the accused was examined under Section 313 of the Code of Criminal Procedure 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. 4 5. Mr. Alok Kumar Dewangan, learned counsel for the appellant submits that the impugned judgment, conviction and sentence dated 03.02.2023 awarded by the trial Court is bad in law, perverse, thus liable to be set aside. The conviction of the appellant is bad, illegal and improper because the learned trial Court has erred in considering the statements of the prosecutrix & her parents that there was previous enmity as such appellant had lodged complaint against their son. Thus, there is no reason to offer Chocolate and call the prosecutrix in his home if there was enmity among both the families. The prosecution had produced 12 witness, but no Independent witness was examined although the neighbors of both the families who knows the real fact as to how the appellant has been dragged in false and fabricated case only to take revenge, the finding of the trial court itself was perverse since there are many contradictions in the statement of the witnesses regarding incident and procedure adopted by the Police. Further, there is delay of one year in lodging the report and statement of doctor, FSL report etc. does not support the case of the prosecution, itself is proof that the actual story is something else and not as projected by the prosecution. The appellant had been falsely implicated in the concerned case. Moreover medical evidence is not supporting the case of the prosecution. There is no external injury in the private parts of the prosecutrix. In fact medical evidence did not support the case of the prosecution nor the doctor who examined the prosecutrix gave any opinion 5 regarding alleged commission of offence with her. The prosecution merely presented a perfunctory and tailored case to suit its game plan of somehow securing a conviction, resulting in grave miscarriage of justice. So far as the present case is concerned, it becomes necessary even at the threshold to find out whether the trial Court really endeavored to find out that each and every incriminating circumstance has been clearly established by reliable and clinching evidence. In the case like the one before us entirely resting on circumstantial evidence. The prosecution has also not proved the other circumstances. The story was doubtful looking to the evidence recorded. It is not reliable as itself consisting of so many impossible and hypothetical matters. So the impugned Judgment and conviction deserves to be set-aside. 6. 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 prosecutrix (PW-1) has clearly deposed the conduct of the appellant in her statement recorded under Section 164 CrPC and in the Court statement and the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for. 7. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 6 8. The issue that arises for consideration in the present appeal is whether the testimony of the victim/prosecutrix deserves acceptance and whether the prosecution has established the case of the appellant beyond reasonable doubt. 9. It is pertinent to observe that the question 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. 10. The next issue that arises for consideration in the present appeal is whether the age of the victim on the date of commission of the offence concerned, was below 18 years of age. 11. According to the provision mentioned in Section 94 (2) (1) of the Juvenile Justice (Care and Protection of Children) Act (hereinafter referred to as Juvenile Justice Act), the birth certificate obtained from the school is sufficient evidence regarding the age of the child and it will be presumed that the age of the child is correctly mentioned in the said document. For the above reason, the procedure prescribed for determining the age of the victim (child) under the provision mentioned in Section 94 of the Juvenile Justice Act will be considered. In this regard, the 7 victim (PW-1) has stated her age to be 14 years at the time of the incident and the victim's mother (PW-6) has also stated the victim's age to be 14 years at the time of the incident. The victim's father (PW-4) has stated the victim's age to be 16 years at the time of the incident. 12. Regarding the age of the victim, the investigating officer sub- inspector Sarita Tiwari (PW-10) states that on 30.06.2022, she sent letter (Ex.P-13) to the Principal of the school related to the victim regarding providing the Dakhil Kharij register related to the victim and on the Principal presenting it, the Dakhil Kharij register related to the victim was seized as per seizure sheet Ex.P-14, which is being confirmed by the statement of Principal Sister Nutan Ekka (PW-4) and the document of the certified copy of the Dakhil Kharij register (Ex.P-15C). 13. In this regard, Principal Sister Nutan Ekka (PW-4) has stated that she had received letter (Ex.P-13) regarding the demand of a certified copy of the Dakhil Kharij register related to the date of birth of the victim in the case of Crime No. 34/2022 of Mahila Thana Bilaspur under Sections 363, 376, 506 IPC and Sections 3, 4 POCSO Act and the seizure of the Dakhil Kharij register from her was done as per seizures memo (Ex.P-4). In the serial No.1138 of the Dakhil Kharij register, the name of the victim and her parents and the victim's date of birth 24.06.2007, admission date 01.06.2018 of class VI are mentioned. 8 14. On perusal of the attested copy of the Dakhal Kharij register (Ex.P-15C), the date of birth of the victim (PW-1) is mentioned as 24.06.2007. The date of incident is between 24.06.2021 to 24.06.2022. The victim has been admitted in the concerned school in class VI on 01.06.2018 and the entry related to the victim has been made in the year 2018 on the basis of her previous class document / mark sheet / transfer certificate. 15. As per above, the date of birth of the victim (PW-1) is mentioned as 24.06.2007 in the certified copy of the Dakhal Kharij register (Ex.P-15C). On the date of incident 24.06.2021, the age of the victim (PW-1) was 14 years as per her date of birth i.e. 24.06.2007 and on the date of incident 24.06.2022, the age of the victim (PW-1) was 15 years as per her date of birth 24.06.2007, was less than 18 years. 16. Under the provision mentioned in Section 94 (2) (1) of the Juvenile Justice Act, the date of birth of the victim is mentioned as 24.06.2007 in the certified copy of the Dakhal Kharij register (Ex.P-15C), which will be considered correct. The above documents are documents maintained in the normal course by the school where the victim (PW-1) studied and there is no reason to disbelieve them. Hence, it is proved by oral and documentary evidence that the victim (PW-1) was a minor girl at the time of the incident i.e. between 24.06.2021 and 24.06.2022, she falls under the category of child as defined under the Protection Act. 9 17. The defence has not challenged the oral and documentary evidence produced by the prosecution in cross-examination and in the statement recorded under section 313 regarding the date of birth of the victim as 24.06.2007. Thus, in the present case, the Dakhil Kharij Register (Ex.P-15C) of the victim has been certified by the prosecution. 18. On the basis of oral and documentary evidence presented, the date of birth of the victim is proved to be 24.06.2007, according to the prosecution story, the date of incident is between 24.06.2021 and 24.06.2022. Therefore, at the time of the incident, the victim was a minor girl, below 18 years, as proved by the prosecution evidence. 19. The main issue that arises for consideration in the present appeal is whether; (i) The accused, being a relative (uncle) of the minor complainant under the age of 18 years, have forced sexual intercourse with her and committed rape on her between 24.06.2021 and 24.06.2022? (ii) Did the accused, on the said date, time and place, took advantage of the complainant and caused bodily harm and damage by forcibly having sexual intercourse with her more than once, thus committing rape and aggravated 10 penetrative sexual assault? 20. With regard to this question, statement of victim (PW-1), statement of Dr. Rohot Gahwani (PW-2), statement of Dr. Kamla Patnayak (PW-3), statement of mother of the victim (PW-06), statement of father of victim (PW-8), statement of Dr. K. Mittal (PW-12), statement of Sarita Tiwari (PW-10) sub-inspector is taken into consideration. 21. Sub-Inspector Sarita Tiwari (PW-10) stated that on 24.06.2022, the victim appeared at the Mahila Police Station and lodged a complaint against the accused Chandrakant Gupta (Ex.P-1), on the basis of which, he had lodged the First Information Report, (Ex.P-.2) on which parts B to B are stated by the witness to have his signature. In this regard, the victim (PW-1) has stated that she had made a written complaint to the police, she had written the application herself, on the basis of which the police had lodged the First Information Report. 22. From the perusal of the written complaint application (Ex.P-1), the First Information Report (Ex.P-2), it is shown that the victim's father had lodged a report against the accused a year ago regarding calling her to give her chocolates and having sexual relations with her and threatening to speak ill about her everywhere when she screamed. Thus, the statements of the above witnesses confirm that the prosecutrix/victim (PW-1) had 11 lodged a named report against the accused in connection with the incident. 23. Regarding the incident, the victim (PW-1) has stated that she knows the accused. The incident took place about six months ago. The accused used to call her to his house on the pretext of giving her chocolates. On the day of the incident, in the afternoon, the accused called her to his house to give her chocolates, then she went to his house. The accused had called her to the upper room of his house. The accused used to touch her body here and there and press her chest and threatened to kill her if she told anyone. The accused did the same thing on the same day and put his hand on the lower part of her body and touched it. One day her mother saw the accused calling her by gesture and asked her, then she told them everything and her mother reported the matter to the police station. The police got her medical treatment done, for which she gave her consent. On being asked indicative questions by the prosecution, the witness accepted that she used to call the accused uncle and when she went to the accused's house, there was no one at home and the accused took her to the upper room of the house and after removing her clothes, inserted his urinating part (part), which she has written as main part in her written complaint (Ex.P-1), in her urinating place (organ) and on her screaming, he threatened to spread it everywhere and tell her mother. The witness said that she did not tell the above thing in the main examination due to fear. 12 24. Thus, from the statement of this witness, the fact has been obtained that the accused called her to his house to give her chocolates, took off her clothes and inserted his private part (urinating part) in her private part (urinating part). 25. Mother of the victim (PW-6), who is also the complainant in the case, states that she knows the accused. The victim is her daughter. The incident took place on 24.06.2022. On the date of the incident, when she went to the roof of her house, she saw that the accused Chandrakant Gupta was gesturing to her daughter victim from the roof of his house. Then she asked her daughter victim why he was gesturing, then her daughter victim told her that the accused Chandrakant Gupta calls her to his room and removes her clothes and rapes her and threatens to spread false rumours about her if she tells her parents. Then she took the victim to the police station and lodged a report against the accused. 26. Thus, this witness has supported the victim's statement that the accused called her to his house, took off her clothes and raped her. 27. father of the victim (PW-8), has stated that he knows the accused. The victim is his daughter. On the day of the incident, the accused had called his daughter victim from the roof to a room in the house. The accused used to sexually exploit his daughter victim. On being asked suggestive questions by the prosecution, 13 the witness has accepted that the accused lives in his neighbourhood and had called his daughter a year before the incident to give her chocolates and took his daughter victim to the upper room, took off her clothes and raped her and when the victim screamed, the accused threatened her to tell her parents and spread false rumours everywhere due to which his daughter victim did not tell him and his wife anything. 28. Thus, this witness has also supported the statement of the victim by stating that the accused had physically exploited her. 29. Investigating Officer Sarita Tiwari (PW-10) has stated that she had sent the victim for examination to District Hospital Bilaspur by filling up the examination form (Ex.P-12), which has been supported by the victim and her mother and which is confirmed by the statement of Dr. Kamla Patnaik (PW-3) and the examination report (Ex.P-12) given by her. 30. Dr. Kamala Patnaik (PW-3), Medical Officer has stated that on 26.06.2022, the victim was presented before her for physical examination by lady constable No.39 Geeta Sahu of Mahila Thana. During the examination, she found that the hymen of the victim was not torn and there was no swelling or redness in the vagina. Therefore, she advised a gynecologist to examine her for a clear opinion regarding sexual assault. She sealed two vaginal slides of the victim and the undergarment of the victim and handed them over to the lady constable. 14 31. Gynecologist Dr. K. Mittal (PW-12) has stated that on 27.06.2022 at 07:30 pm, the victim was presented before her by lady constable Geeta Sahu No. 39 for physical examination/expert opinion along with the examination report of Dr. Kamla Patnaik. She completely agreed with the external examination report of Dr. Kamla Patnaik and on examination of the victim, her hymen was intact and elastic and two fingers were easily entering her vagina. A definite opinion cannot be given regarding rape of the victim. Thus, the medical evidence has proved that the victim's hymen was intact and elastic and two fingers could easily enter her vagina. 32. Dr. Rohit Gahwai (PW-2) states that accused Chandrakant Gupta was brought before him for physical examination by constable No. 1219 Awadhesh Singh Kashyap. He examined the accused and gave the report (Ex.P-11). According to him, on the basis of the examination conducted by him, it cannot be said that the accused is not capable of having sexual intercourse. He sealed the underwear of the accused and handed it over to the constable for chemical examination. Thus, the medical evidence confirms that the accused is capable of having sexual intercourse. 33. Investigating officer Sarita Tiwari (PW-10) stated that she had sent the seized material in the case for FSL examination to the Forensic Science Laboratory, Bilaspur. In the FSL report (Ex.P- 15 25), it is mentioned that semen stains and human sperm were found in Exhibit C, which is Exhibit P-25. According to the FSL report (Ex.P-25), the alleged slide of the victim which is marked as Exhibit A, the alleged underwear of the victim which is marked as Exhibit B and the alleged underwear/Bermuda (half chadda) of the accused which is marked as Exhibit C, in which semen stains and human sperm were found in Exhibit C. 34. It is also worth mentioning here that it is a well-established principle of law that in a rape case, if the statement of the victim is otherwise proved to be reliable, then her statement will not be termed unreliable merely on the ground that her statement is not fully supported by medical evidence. The report given by the doctor is his own opinion which comes in the category of corroborative evidence and not in the category of conclusive evidence. 35. 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 16 would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the 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 17 offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 36. 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 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. … 18 “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.” 37. 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 19 innocent children are not spared in pursuit of such debased sexual pleasure. Children are precious human resources of our country; they are the country’s future. The hope of tomorrow rests on them. But unfortunately, in our country, a girl child is in a very vulnerable position. There are different modes of her exploitation, including sexual assault and/or sexual abuse. In our view, exploitation of children in such a manner is a crime against humanity and the society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas. As observed and held by this Court in the case of State of Rajasthan v. Om Prakash, (2002) 5 SCC 745, children need special care and protection and, in such cases, responsibility on the shoulders of the Courts is more onerous so as to provide proper legal protection to these children. In the case of Nipun Saxena v. Union of India, (2019) 2 SCC 703, it is observed by this Court that a minor who is subjected to sexual abuse needs to be protected even more than a major victim because a major victim being an adult may still be able to withstand the social ostracization and mental harassment meted out by society, but a minor victim will find it difficult to do so. Most crimes against minor victims are not even reported as very often, the perpetrator of the crime is a member of the family of the victim or a close friend. Therefore, the child needs extra protection. Therefore, no leniency can be shown to an accused who has committed the offences under the POCSO Act, 2012 and particularly when the same is proved by adequate evidence before a court of law.” 20 38. When considering the evidence of a victim subjected to a sexual offence, the Court does not necessarily demand an almost accurate account of the incident. Instead, the emphasis is on allowing the victim to provide her version based on her recollection of events, to the extent reasonably possible for her to recollect. If the Court deems such evidence credible and free from doubt, there is hardly any insistence on corroboration of that version. In State of H.P. v. Shree Kant Shekar (2004) 8 SCC 153 the Hon‟ble Supreme Court held as follows:“ “21. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. However, if the court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration, as understood in the context of an accomplice, would suffice.” 39. On these lines, the Hon’ble Supreme Court in Shivasharanappa and Others v. State of Karnataka, (2013) 5 SCC 705 observed as follows: 21 “17. Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable.” 40. 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 22 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.” 41. On the basis of analysis of evidence presented by the prosecution, it is evident that at the time of the incident, the victim was a minor girl below 18 years of age. It is proved that the victim is a girl child and that the accused, knowing that the victim was a girl child below 18 years of age at the time of the incident, committed the crime of rape, forcible penetration, sexual assault and rape on the girl/victim below 18 years of age. Thus, the said crime of rape, penetrative sexual assault on a minor girl below 18 years of age by the accused falls under the category of aggravated penetrative sexual assault. 42. Lastly, considering the statement of the victim (PW No. 1), the accused called the victim to his house, took her to the upstairs 23 room, removed her clothes and entered into her private parts. The fact of inserting his urinary organ has been found and the statements of the victim have been supported by the victim's mother (PW-6) and the victim's father (PW-8). There is no such contradiction or discrepancy in the cross-examination of the said witnesses which shows their statements regarding the incident to be unreliable or doubtful. The victim has stated that she was medically examined, which has been supported by the victim's mother and which is confirmed by the statements of Dr. Kamla Patnaik (PW-3) and Dr. K. Mittal (PW-12) and examination report (Ex.P-12). The medical examiner of the victim, gynaecologist Dr. K. Mittal (PW-12), has stated that two fingers easily entered the vagina of the victim. Thus, the statement of the witnesses confirms that the accused abducted the victim from the custody of her lawful guardian by taking her with him without the permission of her lawful guardian and that he kidnapped the victim in order to compel or allure her into illicit sexual intercourse against her will and committed rape and penetrative sexual assault on her. 43. Hence observing the above stated facts and in light of the principle of law laid down by the Supreme Court in the above- stated judgments, we are of the considered opinion that the learned Special Judge has rightly convicted the appellant for offence under Sections 363, 366 of the IPC and Sections 3 read with Section 4 of the POCSO Act. We do not find any illegality and irregularity in the findings recorded by the trial Court. 24 44. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentence as awarded by the trial court to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 45. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 46. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellant is undergoing the 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 High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Manpreet