1 2025:CGHC:10641 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1027 of 2018 Ravi @ Titalu S/o Dilip Kumar Baniya Aged About 28 Years R/o Subhash Chowk, Ward No. 19, Dallirajhara, P. S. Rajhara District Balod Chhattisgarh, District : Balod, Chhattisgarh ... Appellant versus The State Of Chhattisgarh Through P. S. Rajhara District Balod Chhattisgarh, District : Balod, Chhattisgarh ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Sanjeev Verma, Advocate For Respondent/State : Ms. Isha Jajodia, Panel Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 04/03/2025 1. The present criminal appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 24.04.2018, passed by learned Sessions Judge (In-charge FTC), Balod, District Balod, in VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.05.06 10:49:59 +0530 2 Special Criminal Case (POCSO) No. 15 of 2017, whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentence U/s. 363 of IPC R.I. for 06 months and fine of Rs. 1000/-, in default of payment of fine further R.I. for 01 month. U/s. 377 of IPC and 5(m)/6 of Protection of Children from Sexual Offences Act, 2012 R.I. for 10 years and fine of Rs. 5000/-, in default of payment of fine further R.I. for 01 month. Both the sentences are directed to be run concurrently 2. The brief facts of the case are that on 21.12.2016, at about 8:30 PM, when the victim, who was aged about 10 years, was returning back from the house of his friend and reached near Girder Bridge, the appellant came there, took the victim towards hilly area by lifting him and in an isolated place, he asked him to take his private part in his mouth and forcefully entered his private part into his mouth, by which he vomits and thereafter, he forcefully committed unnatural carnal intercourse with him and also get his penis shaken from the victim. Somehow, she could run away from the place and came back to his house and informed the incident to his mother. On 23.12.2016, when his father came back to his house, he informed the incident to him also and then the FIR (exhibit P-1) was lodged at Rajhara police station by the victim on 23.12.2016. The offence under Sections 363 and 377 of IPC and Sections 4, 5 (e), 6 and 8 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’). The 3 victim was sent for his medical examination to Primary Health Centre, Chikhlakasa, where he was being medically examined by PW-8/Dr. Kalyan Kumar Singha, who gave his report (exhibit P-11). While medically examining the victim, the doctor has found pain on both lower thigh and back and hip region and no sign of abrasion on perineal region or anal region. 3. Spot map (exhibit P-3) was prepared by the police and exhibit P-4 was prepared by the Patwari. With respect to the age of the victim, the progress report card of the victim has been seized vide seizure memo (exhibit P-5). The birth certificate of the victim has also been seized vide seizure memo (exhibit P-6). The school register from Maa Bhawani High School, Dallirajhara has also been seized vide seizure memo (exhibit P-8) and after retaining its attested true copy, Article C-1, the original register was returned back to the school. The appellant was arrested on 24.12.2016 and he too was sent for his medical examination to Govt. Hospital, Chikhlakasa, where he was medically examined by PW-6/Dr. P. Dhanendra, who gave his report (exhibit P-10). While examining the appellant, the doctor has not found any external injuries on his body and opined that the appellant is able to perform sexual intercourse. The pubic hairs of the appellant have been seized vide seizure memo (exhibit P-13) and the same was sent for its chemical examination to FSL Raipur, from where report (exhibit P-22) was received and according to the FSL report, no semen or sperm were found on the pubic hairs of the appellant. Statement of the witnesses under Section 161 of CRPC have been 4 recorded and statement of the victim under Section 164 of CRPC has also been recorded and after completion of usual investigation charge sheet was filed before the learned trial Court against the appellant for the offence under Sections 363 and 377 of IPC and Sections 4, 5 (e), 6 and 8 of POCSO Act. 4. The learned trial Court has framed charge against the appellant for the offence under Sections 363 and 377 of IPC and Sections 5(m)/6 of POCSO Act. The appellant denied the charge and claimed trial. 5. In order to prove the charge against the appellant, the prosecution has examined as many as 10 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 6. After appreciating the oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence, this appeal. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. There is no legally admissible evidence with respect to age of the victim. The evidence of the victim suffered by exaggeration and total improbable story has been developed by the prosecution. The FIR has been lodged belatedly. No visible injuries 5 have been found on the private part of the victim. He being the tutored witness and made instrumental by his parents, cannot rely for holding conviction of the appellant. There is no cogent and clinching evidence, which proves the offence beyond reasonable doubt and therefore, the appellant is entitled for acquittal. 8. On the other hand, learned counsel for the State opposes and has submitted that the prosecution has proved its case beyond reasonable doubt, but for minor omissions or contradictions, which are trivial in nature, the evidence of the prosecution witnesses are fully reliable and conviction can be made on the basis of the evidence led by the prosecution. The evidence of the victim is fully reliable, which need not any corroboration. She would further submit that even if no injuries have been found on the body of the victim, looking to the nature of the offence and the manner in which he was subjected to sexual intercourse by the appellant, injuries may not have been possible to receive by the victim. She would further submit that the doctor, who medically examined the victim, has clearly opined that the victim was complaining pain on both thighs and hip region, which corroborated the evidence of the victim that he suffered the incident. The evidence of the victim has been supported by the other evidences and the delay in lodging the report has also been explained as his father was not there in the house and when he came back on 23.12.2016, immediately the report has been lodged and thus there is overwhelming evidence against the appellant and 6 his conviction and sentence has rightly been held by the learned trial Court, which needs no interference. 9. I have heard learned counsel for the parties and perused the record of the trial Court. 10. The victim in the present case is a 10 years old boy. His age has been proved by the prosecution by the birth certificate (article B-1) and the school register (article C-1). Further, the age of the victim that he was 10 years old boy has not been specifically challenged by the defence in the cross-examination. The birth certificate of the victim (article B-1) has been proved by PW-2/mother of the victim. She stated in her evidence that the victim is her younger son, who is aged about 10 years. The police have seized the progress report card of class-3rd and birth certificate of the victim, which are article A and B respectively and its attested true copy are article A-1 and B-1. He has not been cross-examined on the age of the victim and the defence has not challenged the same. The school register (article C- 1) is proved by PW-5/Assistant Teacher of the school, who stated in his evidence that the police has seized the school register with respect to the date of birth of the victim vide seizure memo (exhibit P- 8). As per the school register, the date of birth of the victim is 21.11.2007 and the said school register is Article-C and its attested true copy is Article C-1. As per the school register, he issued the date of birth certificate, which is exhibit P-9. He denied that the entries in the school register are not in his handwriting. In his evidence, he duly proved the entries made in the school register. Further, in absence of 7 any specific challenge, he cannot be disbelieved or it cannot be said that the victim was not aged about 10 years at the time of incident. From the birth certificate, progress report card and school register, there is no doubt in holding that the victim was 10 years old boy at the time of incident. 11. So far as the allegation of kidnapping and unnatural carnal intercourse by the appellant with the victim is concerned, I again examined the evidence of the prosecution witnesses. PW-1, the victim has stated in his evidence that he is well acquainted with the appellant, who is residing in his vicinity. On 21st December when he was returning from the house of his friend, near Girder Bridge, the appellant came there, kidnapped him by lifting him and took him near hilly area and in an isolated place, he inserted his penis on his mouth. By the act of the appellant, he vomits and thereafter the appellant committed unnatural carnal intercourse with him. When he was feeling pain, the appellant asked him to shake his penis and used force for doing so. Somehow, he could run away from the place, came back to his house and informed the incident to his mother. His father returned back to his house on 22nd, but due to fear, they could not lodge the report on that day and on the next day, they lodged report to the police. He was being medically examined by the doctor. In cross-examination, he remained firm in his allegation made against the appellant that, he committed unnatural carnal intercourse with him and stuck in saying the entire incident, which he suffered. His evidence is almost similar to that of his FIR and there is no 8 contradiction in the said allegation. He also denied that he is being tutored by his mother. There is no reason for him that he would falsely implicate the appellant in the offence in question. This witness can be put in the category of sterling witness and can be relied upon without any corroboration. 12. PW-2 is the mother of the victim, has stated in her evidence that on 21.12.2016, at about 8:30 PM, her son had accompanied his friend up to his house and when he was returning back, near Girder Bridge, the appellant came there, kidnapped her son towards hilly area and committed unnatural carnal intercourse with him. When her son came back to the house, he informed the incident to her. Her husband was out of the Dallirajhara at that time, and when he came back on the next day, they informed the incident to him and thereafter on second next day of the incident, they lodged the report to the police. In cross-examination, though she admitted that prior to the present incident, there was a quarrel between her and mother of the appellant, but that itself is not sufficient to hold that the mother of the victim has reason to falsely implicate the appellant. When the earlier incident was occurred and for what reason, the quarrel took place between them, has not been asked from her. Nothing substantial could be extracted from the evidence of this witness by the defence to disbelieve her evidence. She being the mother of the victim, stated the incident, which her son had suffered and informed by him. The delay in lodging the report has also been explained that when her husband came on the next day, he informed the incident to him and 9 thereafter, they lodged the report. Her evidence has duly supported the evidence of victim/PW-1. 13. PW-3 is the friend of the victim, who stated in his evidence that on the date of incident, the victim has accompanied him up to his house and went back to his house. In the school he disclosed about the incident that, the appellant committed unnatural carnal intercourse with him. Though at some places, there is some contradiction in his evidence, but considering the entire evidence, it appears that the victim has informed the incident to his friend in the school, when they met, which is a normal course and quite natural. 14. PW-8, Dr. Kalyan Kumar Singha, who medically examined the victim has proved the MLC report (exhibit P-11). He stated in his evidence that on 23.12.2016, when he medically examined the victim, he complained about pain on both thighs, back and hip regions. In cross-examination, though he admitted that the injuries found on the body of the victim could have been caused by falling on any hard surface, but the suggestion has not been given to the victim or his mother that the victim had fallen on the road, by which he received injuries. No benefit could be extended by the suggestion given to the doctor about possibility of the injuries found on the body of the victim. 15. From these evidences, it has unerringly proved by the prosecution that on 21.12.2016, when the victim was returning from the house of his friend, near Girder Bridge, he was kidnapped by the appellant, he took him towards hilly area by lifted him and in an isolated place, he 10 committed unnatural carnal intercourse with the victim and also committed unnatural carnal intercourse by inserting penis into the mouth of the victim and forced to shake his penis. After adverting the entire facts and circumstances of the case and the evidence available on record, the learned trial Court has passed the judgment of conviction and sentence, in which I do not find any illegality or perversity, and therefore, this Court is of the opinion that there is no substance in the appeal filed by the appellant. 16. In the result, the appeal fails and hereby dismissed. The appellant is reported to be in jail since 24.12.2016. He shall serve the entire sentence as awarded by the learned trial Court. 17. 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. 18. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved