1 2025:CGHC:34487-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No.1902 of 2019 1 - Sanjay Kumar Nishad @ Sheru S/o Late Shri Bhagwat Ram Aged About 34 Years, R/o Salihapara Bhanupratappur, P/S Bhanupratappur, District Uttar-Bastar Kanker, Chhattisgarh Appellant versus 1 - State Of Chhattisgarh Through Police Station Bhanupratappur, District Uttar-Bastar Kanker, Chhattisgarh Respondent(s) For Appellant (s) : Mr. Ajay Mishra, Advocate For Respondent(s) : Mr. Ankur Kashyap, PL Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Amitendra Kishore Prasad Judgment on Board 21.07.2025 Per Rajani Dubey J. 1. The present appeal is directed against the judgment of conviction and order of sentence dated 26.06.2019 passed by the learned Special Judge (POCSO Act), Bhanupratappur, District North Bastar Kanker (C.G.) in Special Criminal (POCSO Act) No.06/2018, whereby the appellant has been convicted Digitally signed by RAMAKANT NIRALA 2 under Sections 376 (2) and 506 Part-II of IPC and sentenced to undergo life improvement and RI for 5 years, respectively, with default stipulations. 2. The prosecution case, in brief, is that on 27.12.2017, the Child Welfare Committee received a letter regarding the sexual intercourse with the child. The prosecutrix appeared before the Court of Child Welfare Committee on 19.1.2018, and informed the Court that her father and mother left her and re-married and since then she is residing with her real maternal uncle (Mama). In the month of June 2016, she had gone to her father’s home, from where her father and her went to grandmother’s (nani) home, where the accused, her uncle and aunt (bua) reside. One day when all family members went outside for work, the prosecutrix was alone in the house, then the appellant forcefully committed sexual intercourse with her and again on very next day, the appellant committed sexual intercourse with her and she tried to stop him but he threatened her of life. Thereafter a case was registered against the accused and he was arrested. After investigation, charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellant, as mentioned in para 1 of the judgment. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material 3 available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. The accused is the close relative of the prosecutrix and always treated her like his daughter and has not committed the said offence. The father and mother of the prosecutrix have not supported the case of the prosecution and turned hostile, but the above said aspects of the matter have not been considered by the learned Trial Court and the appellant has wrongly been convicted and sentenced for the aforesaid offence. Therefore, the appeal deserves to be allowed. 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. He further submits that in similar case where the victim is same, the other accused was convicted by the learned Trial Court and the appeal filed by the said accused has been dismissed by this Court vide judgment dated 14.06.2023 passed in CRA No.1056/2021 in the matter of Tameshwar @ Shankar Yadav vs State of Chhattisgarh. Therefore, the present appeal is also liable to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 376 (2) (I), 4 506 Part-II of IPC and Sections 4 & 6 of POCSO Act and after appreciation of oral and documentary evidence available on record, the learned Trial Court convicted and sentenced the appellant, as mentioned in para 1 of the judgment. 7. It is clear from the statement of the prosecutrix that she used to call the accused/appellant as Sheru Mama. She stated that her mother and father got separated and her father was living at Bhanupratappur and in June, 2016, she came to her Sheru Mama’s house, where he committed forcible sexual intercourse with her and also threatened that if she would disclose the incident to anyone, she would be killed. 8. PW-10 Laxmi Naydu stated that she was posted at Balika Grah, Jagdalpur from 07.09.2015 as a counseller. The victim was brought in Balika Grah after she was abandoned and thrown out by her relatives. During routine counseling on 22.12.2017, the victim disclosed the incident to her. The victim revealed that the accused/appellant, who is her maternal uncle, committed rape with her and she had told this incident to her mother, but she did not believe her. After such disclosure, a report was lodged. The statement of PW-10 is corroborated by the statement of PW-4 Sarita Banjari, who was posted at Child Protection Officer at Mahila and Bal Vikas Vibhag, District Narayanpur since 2013. She stated that on 27.07.2017, the victim was brought by one aganbadi worker before Balika Kalyan Samiti where she was working as nodel officer. She stated that during such period, 5 other persons were also present and when enquiry was made, the victim told that mother and father of the victim abandoned her and her brother and they were living alone with their maternal uncle namely Santosh. The victim also disclosed the happening of the incident of sexual assault to her by the accused. Balika Grah Samiti had also enquired from the victim about the incident wherein she disclosed that in the year 2015-16 while she was residing with her maternal grandfather and maternal uncle, during that period, the accused, who is her maternal uncle, committed sexual intercourse with her. Upon such disclosure, the incident was informed to the SHO, Narayanpur by written complaint (Ex- P/4) and thereafter FIR was lodged (Ex-P/5). She admitted her signatures on A to A part of the same and also gave consent to internal examination of the prosecutrix vide Ex-P/6 and admitted her signature on A to A part of the same. It is clear from all these documents that at that relevant point of time of disclosure, the prosecutrix was in custody of Balika Grah Samiti. 9. Dr. Shakun Markam (PW-15) had examined the victim on 28.01.2018 and according to him, she was about 12 years of age at that point of time and her hymen was ruptured and on enquiry she also disclosed that before the incident also, she was subjected to sexual intercourse. She gave her report (Ex-P/28) and admitted her signatures on A to A part and B to B part of the same. 10. The age of the victim is further corroborated by dakhil kharij 6 register (Ex-P/3), wherein the date of birth of the victim is shown as 01.05.2007. Dakhil kharij register is proved by PW-2 Smt. Shashikala Patle, headmaster of the school. She deposed that the date of birth of the victim was 01.05.2007 and she was admitted to Class-1 as per register (Ex-P/3), which was seized by the Investigating Officer by seizure memo (Ex-P/2). She admitted her signatures on A to A part of the same. Though PW-2 was not the author of such document, but when the statement of her is read along with the statement of PW-15 Dr. Shakun Markam who examined the victim on 28.01.2018 and found her of 12 years of age, it is very much clear that the prosecutrix was minor at the time of incident. The evidence of doctor and dakhil kharij register (Ex-P/3) also corroborates the age of the victim and in the cross- examination nothing came out to negate the age of the victim and the same established this fact that she was a child at the time of incident, therefore, the evidence brought before the Court would show that on the date of examination of the victim, she was minor and aged about 12 years in the year 2018. The date of incident was stated to be of the year 2015-16, therefore, the sexual assault would relate to 2-3 years back and cumulative examination would lead to show that on the date of sexual assault, the victim was child much below 18 years of age. 11. The prosecutrix (PW-6) clearly stated against the appellant and all these disclosures she made before aganbadi madam and she stated that for the first time on 22.10.2017 during counseling, the 7 victim disclosed the incident to madam Laxmi Naydu. She also stated that apart from the accused, the other persons namely Shankar, Cheeku, Akash and Santosh also committed sexual intercourse with her in the year 2015. In the cross-examination of all these witnesses, the suggestion was given that as to why she has not disclosed the incident of sexual assault to her family members, but the victim clearly stated that had she told the incident to her family members, they would not have believed on her. It is also clear from her statement that she disclosed the incident to her mother, but she did not believe on her. It is also stated by the prosecutrix that threat was extended by the accused that if she discloses the incident to anyone, then he would kill her. In the cross-examination, she remained firm to her statement about the sexual assault committed by the appellant. 12. Learned counsel for the appellant strongly objected on the delay point but in similar matter where the accused was tried where the victim is same, the learned Trial Court convicted the accused and this Court also dismissed the appeal filed by the said accused in CRA No.1056/2021 vide judgment dated 14.06.2023 in between Tameshwar Alias Shankar Yada vs State of Chhattisgarh and observed in para 12 as under:- “12. So far as the delay in FIR is concerned, the circumstance would show that the victim and her brother were abandoned by her mother and father, therefore they were living with her maternal uncle (ekek) at Narayanpur. During stay at Narayanpur the victim was sexually assaulted when the accused/appellant had stayed in the same house for a 8 temporary period while he was running a ring shop in the village Fair. Subsequently, the statement would show that the victim and her brother were pushed out of the house thereafter they took shelter in the Balika Grah, wherein during the counseling on two different dates she disclosed this fact to PW-2 (Laxmi Naidu). It is obvious, looking to the background of the victim and circumstances with prevailed and further considering her age it is obvious that when she felt little bit secured and safe, during her stay at Balika Grah, Jagdalpur, she revealed those facts of sexual assault. The statement made by the victim when evaluated with the circumstances of child, who were abandoned by their parents and living at mercy of some relative when after further abandonment came under safe shelter during counseling the sexual assault was disclosed. So the delay in FIR was reasonable. Therefore, we are of the view that the prosecution was able to prove the facts of sexual assault by the accused with the girl, a child who was aged about 8-9 years at the time of incident.” 13. In light of the above, in the present case also, the victim is same, as she was also victim in CRA No.1056/2021, where accused has been convicted by the Trial Court and the appeal filed by the accused has also been dismissed. The prosecution witnesses Laxmi Nayudu (PW-10), Sarita Banjari (PW-4) and Dr. Shakun Markam (PW-15) were also the prosecution witnesses in that case and were examined before the learned Trial Court and based on their testimony, the accused Shankar was convicted by the learned Trial Court. In the present case also, all these witnesses have been examined and based on their statements and other evidence available on record, it is clear that the prosecution has been able to prove its case against the present appellant beyond reasonable doubt. The learned Trial Court also minutely appreciated the oral and documentary evidence and 9 rightly convicted the appellant. 14. Thus, having considered all the facts and circumstances of the case, we are of the view that the finding recorded by the learned Trial Court is based on the material available on record, which is neither perverse nor contrary to the record and the same does not call for any interference by this Court. 15. The appeal is without any merit and is liable to be and is hereby dismissed accordingly. 16. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- Rajani Dubey Amitendra Kishore Prasad Judge Judge Nirala