2025:CGHC:8758 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 371 of 2020 Chunnu @ Harish Yadav Son Of Manglu Yadav Aged About 16 Years Present 18 Years, Resident Of Village - Somni, Thana Purani Bhilai, District - Durg Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station - Purani Bhilai, District - Durg Chhattisgarh ... Respondent (Cause title is taken from the CIS) ------------------------------------------------------------------------------------------------------------------ For Appellant : Shri Vikas Pandey, Advocate For Respondent/State : Shri Atanu Ghosh, Dy GA ------------------------------------------------------------------------------------------------------------------ Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 19.02.2025 1. This Criminal appeal has been filed by the appellant under Section 374(2) of the CrPC 1973 against the impugned judgment dated 31.01.2020 (Annexure A1) passed by the learned Additional Sessions Judge,FTC, and Juvenile Court Durg, District- Durg (CG) in Special Session Case-122 of 2017, whereby the appellant has been convicted and sentenced as under : Conviction Sentence Under Section 365 of the IPC RI for 7 years and fine of Rs.1,000/- Under Section 376(2) of the IPC RI for 10 years and fine of Rs.1,000/- Digitally signed by V PADMAVATHI Date: 2025.05.08 11:06:51 +0530 Cra 371 of 2020 2 2. Brief facts of the case are that, mother of the victim PW2 lodged a written complaint Ex.P3 to the Police on 06.07.2017 with the allegation that at about 1.30 pm her minor daughter was playing in front of her house. At that time, present appellant took the victim to her uncle in- laws house, and committed rape upon her. At about 2.15 pm, victim came back to her house crying, and she was not able to say anything. When her mother saw her private part, she saw bleeding from there. She convinced her, and then, at about 5 pm, victim disclosed the incident about the rape by the appellant. On the basis of her written report Ex.P3, FIR Ex.P4 was registered by the Police against the appellant for the offence under Section 376, 377, 365 of the IPC, and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). The victim was sent for her medical examination to the District Hospital, Durg, where she was being medically examined by Dr Vineeta Dhurve PW6, who after her medical examination, gave report Ex.P10. While medically examining the victim, she found uncooperative, and not permitted the doctor to get her examination. Then, the doctor shifted the victim to the Operation Theatre (OT), and called the Gynecology surgeon. After giving sedation by Dr Lal Mohd Sir, when the victim was being examined by the Gynecologist, Dr Dewangan Madam, she found injuries on her private part, redness present in vaginal introitus, small abrasion present near anus, and tenderness present, and the victim was advised for USG of the abdomen, and Pelvic region. Spot Map Ex.P5 was prepared by the Police. Underwear of the victim was seized vide Seizure Cra 371 of 2020 3 memo Ex.P7, and it was sent fo its query report to the doctor, from where, query report Ex.PA1 was received, and it was sent for its chemical examination. With respect to age of the victim, School Register Ex.P19 has been seized from the Morning Star Academy School, Durg. Appellant was arrested on 07.07.2017, he too was sent for his medical examination to the Government Hospital, Bhilai, where he was being medically examined by Dr PM Singh PW7, who after the examination, gave report Ex.P12, and found the appellant capable to perform sexual intercourse. The vaginal slides, underwear of the victim and underwear of the appellant were sent for their chemical examination to the State FSL, Raipur from where report Ex.P22 was received, and according to the FSL report, no semen or sperms were found on the articles sent . 3. Statement of the witnesses under Section 161 of the CrPC, and statement of the victim under Section 164 of the CrPC have been recorded and after completion of usual investigation, Charge-sheet was filed before the learned Juvenile Justice Board, Durg (for short, ‘the Juvenile Board’) for the offence under Sections 376, 377, 365 of the IPC, and Section 4 of the POCSO Act, showing the age of appellant as 16 years, and was a Juvenile. 4. With respect to age of the appellant, the Police has seized the School Register, from the Government Primary School, Somni, vide seizure Memo Ex.P18, in which date of birth of the appellant is recorded as 15.03.2001. Cra 371 of 2020 4 5. On 05.08.2017, when the charge-sheet was filed before the learned Juvenile Board, preliminary enquiry was directed by the learned Juvenile Board, as provided under Section 15 of the Juvenile Justice Court, Care and Protection of the Children Act, 2015. After conducting the enquiry, the report has been submitted before it and the learned Juvenile Board has passed its order on 17.08.2017, holding the appellant aged more than 16 years, and less than 18 years of age, and transferred the case to the Children’s court for its trial, as provided under Section 18(3) of the Juvenile Justice (Care and Protection of the Children) Act, 2015 (for short, ‘Act of 2015’). 6. The case was committed to the learned trial Court /Juvenile Court on 29.08.2017 for its trial. The learned trial Court has framed charge against the appellant for offence under Sections 365, 376 and 377 of the IPC, and Section 4 of the POCSO Act. Vide order dated 31.01.2020, the charge of the offence under Section 4 of the POCSO Act has been amended, and instead thereof, charge under Section 6 of the POCSO Act has been substituted. The opportunity to re-examine, and/or re-cross- examine the witnesses, who have already been examined, was given to the parties, but they have refused to examine, cross-examine, or re- cross-examine the witnesses, whose evidence has already been recorded. The appellant denied the charge, and claimed trial. 7. In order to establish the charge against the appellant, prosecution examined as many as 09 witnesses. Statement under Section 313 of the Cra 371 of 2020 5 CrPC of the appellant has also been recorded in which he denied the circumstances appearing against him, pleaded innocence and submitted that he has been falsely implicated in the offence. In his defense, he would submit that he is a cattle grazer, and on the allegation that the appellant destroyed his crop by grazing his cattle, and therefore, he falsely implicated the appellant by the father of the victim. 8. After appreciation of oral and documentary evidence on record, trial Court has passed the order of conviction and sentenced as mentioned in earlier part of the judgment. Hence the appeal by the appellant. 9. Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the case. No offence has been made out against the appellant as the prosecution failed to establish the case beyond any reasonable doubt. There is no legally admissible evidence produced by the prosecution with respect to the age of the victim. There are material omissions, and contradictions in the evidence of prosecution witnesses, which cannot be made basis to convict the appellant for the offence in question. Victim is a four years old girl, and is a tutored witness, who stated on the instance of her parents. Her evidence is not sufficient to hold the conviction of the appellant. In absence of any cogent, and clinching evidence, appellant cannot be convicted and he is entitled for acquittal. 10. On the other hand, learned counsel for the State opposes and submitted that but for minor omissions, and contradictions, all the Cra 371 of 2020 6 prosecution witnesses are fully reliable, and sufficient to hold guilty of the appellant. The victim PW1 has duly supported her case that she was subjected to rape by the appellant. The allegation against the appellant is medically supported by the evidence of PW6, Dr Vineeta Dhurve, who found injuries on the private part of the victim. Immediately report has been lodged in which the appellant has been named, and therefore, there is no reason to dis-believe the evidence of prosecution witnesses, and there is no reason for his false implication. There is overwhelming evidence available on record against the appellant to hold his conviction, and the learned trial Court has rightly appreciated the evidence available on record, and has convicted, and sentenced him which needs no interference. 11. Heard learned counsel for the parties and perused the record. 12. Victim is aged about 4 years on the date of incident, which has not been challenged by the appellant. From the evidence of victim PW1, her parents PW2 and PW3, and also from the evidence of PW6, Dr Vineeta Dhurve, who medically examined the victim, there is no dispute regarding age of the victim. 13. The victim PW1 has stated in her evidence that she was subjected to rape by the appellant. When she was being confronted with the appellant, after seeing him, she scared. She identified the appellant, and stated that the appellant came to the place where the victim was playing, took her with him, and got her laid on the cot, and thereafter, committed Cra 371 of 2020 7 rape upon her. The victim demonstrated the act of rape with the help of a doll, and disclosed the entire incident, which she suffered by the act of the appellant. She further stated that when she came back to her house, she disclosed her mother about the incident, blood was coming out from her private part. In her cross-examination, victim has stated that she was playing with her cousin sister. Appellant is a cattle grazer, and when she was playing with her cousin sister, appellant came back to his house after grazing his cattle. She firmly stated in her cross-examination also either by expressing words, or by gesture that the appellant committed rape upon her. In such a tender age of four years when she firmly stated about the act of the appellant, that he committed rape upon her, the appellant could not extract any material from her in cross-examination, so that she could be dis-believed. From her entire evidence, the act of the appellant has duly been proved that she is the victim of rape by the appellant. 14. PW6 Dr Vineeta Dhurve, who medically examined the victim has stated in her evidence that the victim was not cooperative, when she was brought before her for medical examination. She was four years of age at the time when she was brought before her for medical examination. After sedation by Dr Lal Mohd Sir, she was shifted to the OT, and she was medically examined by the Gynecologist Dr Dewangan Madam, who found injuries on her private part, and abrasion near the Anus, Cra 371 of 2020 8 tenderness was also present there. Despite having the opportunity of cross-examination, no question has been asked from the doctor, and thus, the injuries found on the body of the victim on her private part have also been duly proved by the prosecution that on 07.07.2017, when the victim was medically examined, injuries were found on her private part. 15. PW2, mother of the victim stated in her evidence that on the date of incident, her daughter was playing along with her friends, in front of her house. After some time, she came back to the house by crying, her jean pant was in her hand, and started deep crying. She saw blood stains on her underwear, and bleeding from her anus. She also saw the injury on her private part, and when she asked from her, her daughter disclosed about the incident that the appellant committed rape upon her. In the evening when her husband came back to the house, they took her to the doctor at Dev Baloda, but the doctor refused to treat her, and asked them to lodge report first. On their insisting the doctor treated her, and then, they have lodged the report. In cross-examination, she denied that her daughter had received injury by a piece of wood, while she was playing with her friends. She further stated that when she saw her daughter came back to her house, she was crying, and disclosed the incident. But for minor omissions, and contradictions, she remained firm in saying that when her daughter came back to the house, she was crying, and she disclosed about the incident Cra 371 of 2020 9 that the appellant has committed rape upon her. She also saw the injuries on her private part, and bleeding from there. 16. PW3, father of the victim has also supported the prosecution case, and stated that when he came back to his house, his wife informed about the incident, and thereafter, they took the victim to the doctor, and lodged the report. 17. PW4, Grandmother of the victim stated in her evidence that on the date of incident, she was informed by her daughter-in-law that the victim was crying and coming from the house of the appellant. When she had gone to the house of the appellant, children were playing and the appellant was present in the house. When she asked from the appellant as to why he beaten the victim, then, he disclosed that she received injuries from datun (nature’s herbal tooth brush). In the night Police came to her house, and then, she came to know that the victim was subjected to rape by the appellant. In cross-examination, though she deviated from her police statement Ex.P8, but it is proved that at the alleged date and time, appellant was present in his house, where the victim was playing, and the access of the appellant is proved. 18. PW5 is the neighbour, who has stated that the victim was playing with his daughter, and the appellant was playing with them. After some time, mother of the victim came to her house, and asked reason for Cra 371 of 2020 10 crying of the victim, then, the appellant replied that her daughter has beaten the victim, therefore, she was crying. In the night, she came to know that the appellant committed rape upon her. 19. From the evidence of above witnesses, it is unerringly, proved by the prosecution that the victim, who is aged about four years, suffered by the act of rape by the appellant, and her allegation is proved by the medical evidence as injuries have been found on the body of the victim. 20. Quality of the evidence of the victim is suffice to put her in sterling witness as observed by the Hon’ble Supreme Court in the case of Santosh Prasad @ Santosh Kumar Vs State of Bihar, (2020) 3 SCC 443, wherein at para 5.4.2 of its judgment, it has been observed that: “5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it is observed and held as under: “22 In our considered opinion, the “sterling witness” should be of a very high quality and calibre 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 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 Cra 371 of 2020 11 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 every one 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 such similar tests to be applied, can it 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 offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” Cra 371 of 2020 12 21. In the matter of Parhlad and another Vs State of Haryana, (2015) 8 SCC 688 in paras 17 and 18, Hon’ble Supreme Court has held that: “17. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilized society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of the IPC but also right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Articles 14 and right to life under Article 21 of the Constitution, for they are the “fon juris” of our Constitution. The said rights are constitutionally secured. 18. Therefore, regard being had to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. The perpetrators of the crime must realize that when they indulge in such an offence, the really create a concavity in the dignity and bodily integrity of an individual which is Cra 371 of 2020 13 recognized, assured and affirmed by the very essence of Article 21 of the Constitution.” 22. The entire evidence produced by the prosecution revolve the guilt of the appellant for the alleged offence that the victim is being sexually assaulted by the appellant, and she suffered the heinous crime of the offence of rape, for which the evidence available on record has rightly been appreciated by the learned trial Court, holding conviction of the appellant under Section 365, 376 and 377 of the IPC, and Section 6 of the POCSO Act. 23. While sentencing the appellant, the learned trial Court has observed in its judgment that the provisions of Section 376(2) of the IPC are provided serious punishment than the punishment provided under Section 6 of the POCSO Act. Likewise, Section 376(2) of the IPC provides more severe punishment than the offence of Section 376, 377 and Section 6 of the POCSO Act, and therefore, while invoking the provisions under Section 42 of the POCSO Act, the learned trial Court has sentenced the appellant for the offence under Section 376(2) and 365 of the IPC, and sentenced him as mentioned in the earlier part of the judgment, which, in the opinion of this court, does not suffer from any perversity or illegality. 24. Further, in Para-67 of its judgment, learned trial Court has also considered age of the appellant, and in view of Section 19(3) of the Act 2015, appellant was directed to be kept in ‘place of safety’ up to the age Cra 371 of 2020 14 of 21 years, and thereafter, he shall be transferred to the jail to undergo his remaining sentence. It is also directed that during his stay at ‘place of safety’, his welfare could be taken care of, and he be engaged in the work of his skill development. The welfare of the appellant has also been taken care of by the learned trial court while observing the same in para- 67 and 68 of its judgment in which I do not find any perversity, or illegality which warrants interference. 25. For the foregoing considerations, I do not find any sufficient ground to interfere with the impugned judgment of conviction, and sentence. 26. In the result, appeal filed by the appellant stands dismissed. 27. Record of the trial court be sent back immediately to the trial Court concerned along with copy of this judgment for compliance and necessary action. 28. Registry is directed to 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/- (Ravindra Kumar Agrawal) JUDGE padma