1 2025:CGHC:18677 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 900 of 2019 1 - Chetan Das Hatile S/o Garibdas Hatile Aged About 19 Years (Presently Aged About 24 Years), R/o Ravidas Nagar Near Ravidas Temple, Police Station Supela District Durg Chhattisgarh., District : Durg, Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Supela, District Durg Chhattisgarh., District : Durg, Chhattisgarh ... Respondent(s) For Appellant(s) : Ms. Sameeksha Gupta, Advocate For Respondent(s) : Mr. Rishabh Deo Singh, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 24/04/2025 1. The appellant has filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence 2 dated 24.05.2019 passed in Special Sessions Trial No. 134/2013 by the learned 5th Additional Sessions Judge (POCSO Act)/ Special Judge Durg, District- Durg (C.G.) has convicted and sentenced the appellant as under :- Conviction Sentence U/s 363 of IPC R.I. for 3 years and fine of Rs. 500/-, in default of payment of fine, additional S.I. for 2 months. U/s 366 of IPC R.I. for 3 years and fine of Rs. 500/-, in default of payment of fine, additional S.I. for 2 months. U/s 376(2)(I) of IPC R.I. for 10 years and fine of Rs. 500/-, in default of payment of fine, additional S.I. for 2 months. U/s 5(M)/6 of POCSO Act R.I. for 10 years and fine of Rs. 500/- and in default of payment of fine additional S.I. for 2 months. 2. Case of the prosecution in brief is that the mother of prosecutrix has lodged the FIR on 16.12.2012 wherein she stated that the appellant committed sexual assault with her daughter on 13.12.2012 and she also stated that she was out of home due to her job and her daughter narrated the whole story. During investigation, the concerned police arrested the appellant and after completion of the investigation the charge sheet was filed. 3. After hearing learned counsel for the parties and appreciating evidence available on record, the trial Court vide judgment dated 24.05.2019 convicted and sentenced the appellant/accused for 3 the offence punishable under Sections 363, 366, 376(2)(I) of IPC and under Sections 5(M) and 6 of POCSO Act in the manner as described above of this judgment. Hence, this appeal. 4. In order to prove the charges against the appellant, prosecution examined as many as 11 witnesses. Statement of appellant was also recorded under Section 313 of CrPC in which he pleaded innocence and false implication. However, no defence witness was examined by the appellant. 5. Learned counsel appearing for the appellant contended that there is no conclusive proof of the offence of sexual assault as per the report of PW-5 Babita Saxena who clearly stated that there is no any definite opinion of sexual assault. The learned court below has convicted the appellant only on the basis of statement of prosecutrix. She further contended that there were previous enmity by and between the parties. 6. On the other hand, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits that the prosecution has successfully proved the commission of offense by the appellant beyond reasonable doubt and the appellant has been rightly convicted and sentenced by the trial Court, therefore, there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference. 7. In the present case regarding the age of the victim, the victim (PW 4 1) has stated in her statement that the incident is of the year 2016, her date of birth is of the year 2006. The victim's mother (PW 2) has stated in her main examination regarding the age of the victim that her daughter's date of birth is 13 August 2006. The incident took place 5-6 years ago. At that time her daughter was about 6 years old and was studying in the second or third class. The father of the victim has presented the birth certificate issued by the Government of Chhattisgarh in relation to the birth of the victim, whose book number is 3999, serial number 09, which contains the name of the victim of the present case, date of birth - 13.08.2006, birthplace, name of parents, registration number 6922, registration date 29.11.2006. The said certificate has been issued by the Sub- Registrar Birth-Death Municipal Corporation Bhilai District Durg. The birth certificate of the victim certified by the father of the victim is Ex.P. 14/C. Therefore, on the basis of oral and documentary evidence presented by the prosecution, the date of birth of the victim is established to be 13.08.2006. The incident is of 13.12.2012. Thus, on the basis of the said date of birth, the age of the victim on the date of the incident is established by the prosecution evidence to be 06 years 04 months. 8. The victim (PW-1) has stated in her statement regarding the incident that on the date of incident she was playing in the vacant space behind the house of the accused. The accused's cousin sister, whose name is Simran, had taken her to play and they had dressed up her aunt's daughter Muskaan like a bride and were 5 playing there. The accused came there and was standing. Meanwhile, the victim felt thirsty and went to her aunt's house to drink water and was returning from there. By that time all her friends who were playing with her had left. Then the accused caught her and took her inside the bathroom of his house and did dirty things there. The accused took off half of his jeans which he was wearing and also took off her underwear and made her naked from below, after which the accused did some dirty work by inserting his private part in her private part, due to which she felt burning sensations and pain in her private part. After that the accused took her to the nearby public toilet and did similar dirty things with her. Meanwhile, the accused's sister Nisha came there. The accused left her when he saw his sister Nisha. After that she went home. 9. The mother of the victim (P.W. 2) and father (PW-3) have proved the identity of the accused in their examination and have told that he is the son of their nephew and lives in their locality. Thus, it is also clear from the evidence of the mother of the victim that the accused is also her relative. The mother of the victim has also told that the incident took place 5-6 years ago. At that time the victim was only 6 years old girl who was studying in second or third class. The mother of the victim has told that when she came back home from her work in the evening, her daughter/victim told her that she was having pain at the place where she urinates. Then she asked what happened, then the victim told that Chetan from 6 the neighbourhood took her to the bathroom of his house and there the accused removed her underwear and also removed his clothes and made her sit on the lap and did bad things with her. On being told this, she saw her daughter's private parts. Her daughter was saying that she was having pain and burning in her private parts. On seeing this, redness was visible on both sides inside the victim's private parts. Then she immediately called her husband and told him about the incident committed by the accused with the victim. 10. Dr. Babita Saxena (PW 5) who medically examined the victim gave her report (Ex. P/7) wherein she found that the identification mark of the victim was a black mole on her right neck, her pulse was 110 per minute, her height was 3 feet 4 inches, weight was 11 kg, number of teeth was 12 each on the upper and lower sides. There were no external injury marks on her body. On examination, it was found that there were no external injury marks on her private parts, the hymen was intact, there was no injury, redness or pain on pressing near the hymen, there was no bleeding or discharge, two slides were prepared from her vagina. She referred the victim to a radiologist for determining her age. After examination, he found in his opinion that after examining the victim, he could not give a definite opinion regarding rape because there was no penetration. 11.However, Dr. Babita has not given any definite opinion and in her 7 opinion after examining the victim regarding rape the victim was not penetrated, her hymen was intact and there was no injury, redness or pain on pressing the private parts either externally or internally. In the cross-examination also, doctor has admitted that on medical examination of the victim, she did not find any injury, redness or abrasion marks on the external and internal organs of the victim's body. The medical witness has clearly stated in her examination that she had examined the victim on the evening of 16.12.2012 whereas the mother of the victim and the victim have clarified in their examination that two days after the incident, when the victim felt burning sensation in her private parts, the victim told her mother about the incident. The mother of the victim lodged the FIR on 15.12.2012 and in the evening of 16.12.2012 the prosecutrix was medically examined. 12. Therefore, after considering the facts and circumstances of the case, statements of witness, opinion of doctor and the medical report (Ex. P-7), this Court is of the opinion that the appellant kidnapped the victim who was a minor girl aged about 6 years on the date of incident, by luring her away from the protection of her lawful guardian, in order to compel her to have illicit sexual intercourse and committed sexual assault with the victim. 13. However, the medical report (Ex. P/7) given by Dr. Babita Saxena (PW-6) reveals that there was no penetration and hymen of the victim is intact and there was no injury, redness or pain on 8 pressing the private parts either externally or internally. In the cross-examination also, doctor has admitted that on medical examination of the victim, she did not find any injury, redness or abrasion marks on the external and internal organs of the victim's body. As per memo (Ex. P/22), the innerwear and slide of the victim as well as accused were sent for FSL test. The FSL report is Ex. P/24 and the FSL report is negative. Therefore, it is crystal clear that there is no sign of rape with the victim as per MLC report (Ex. P/7) and FSL report (Ex. P/24). However, from the evidence of the prosecutrix and her mother, it is crystal clear that the appellant kidnapped the victim who was minor girl aged about 6 years. In order to compel her to have illicit sexual intercourse and tried to commit sexual assault with the victim. Therefore as per Section 5 of the POCSO Act, 2012 the aggravated penetrative sexual assault has not been made out. Therefore, this Court is convicting the present appellant under Section 376(2)(i) read with Section 511 of IPC and read with Section 6 of POCSO Act, 2012 and sentencing him to undergo R.I. for 7 years. However, fine imposed by trial Court is maintained. 14. The appellant is in jail and he shall serve out the sentence as modified above. 15. With the aforesaid observations, the criminal appeal is partly allowed. 16. Let a copy of this order and the original records be transmitted to 9 the trial court concerned forthwith for necessary information and compliance. Sd/- (Arvind Kumar Verma) JUDGE Madhurima