1 / 10 2025:CGHC:18248 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 648 of 2018 Abhishek Raj S/o Shri Rajendra Kumar Aathwani Aged About 25 Years Bonafide R/o Ward No. 21, Tirhut Colony Madhubani P. S. Madhubani Bihar Presently Residing At House Of Aashish Pathak Anant Vihar Colony, Pandri P. S. Pandri, District Raipur Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through P. S. Pandri, District Raipur Chhattisgarh ... Respondent For Appellant : Mr. Jitendra Nath Nande, Advocate For State : Mr. Rishabh Singh Deo, Panel Lawyer Hon’ble Shri Arvind Kumar Verma, Judge Judgment on Board 22/04/2025 1. This criminal appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) against the impugned judgment of conviction and order of sentence dated 10.04.2018 passed by Seventh Additional Session Judge, Raipur, Chhattisgarh in Speical Criminal Case No. 77 of 2017, by which the appellant has been convicted and sentenced as under:- 2 / 10 Conviction Sentence Under Section 04 of the Protection of Children from Sexual Offences Act, 2012 R.I. for 07 Years and fine of Rs.5,000/-, in default of payment of fine amount further R.I. for 03 months 2. Case of the prosecution, in brief, is that on 16.02.2017 when the victim was playing hide and seek in the house of the accused appellant, at that time the accused appellant took her in a room removed her undergarments and started licking and kissing her private parts. Upon which the victim ran away and stated everything to her mother and father. Thereafter, on the written report of the victim, a crime was registered against the accused for the offence punishable under Section 376(2)(I)(J) of the Indian Penal Code and Section 07 and 08 of POCSO Act and investigation was carried out. 3. During the investigation, the victim's statement was recorded by the judicial magistrate under section 164 Cr.P.C. The victim was medically examined. The site map was prepared. The statements of the victim and witnesses were recorded and as per their statements seizure proceedings were carried out. The accused was arrested in front of witnesses and an arrest panchnama was prepared. After necessary investigation against the accused, a charge-sheet was filed against the appellant. 4. On the basis of the facts and circumstances involved in the present case and the attached documents, charges were framed against the accused and when the charges were read out and explained 3 / 10 to him, the accused denied the charges and claimed to be tried. 5. During the examination of the accused under Section-313 (1-b) Cr.P.C.on the basis of evidence presented by the prosecution, the accused denied the allegations leveled by the prosecution evidence and stated that he was innocent and he has been falsely implicated and Umesh Kumar Rajdev and Smt. Drishti Raj were made to state as defence witness. 6. Learned trial Court framed charges read over and explained to the accused, who abjured his guilt. In order to bring home the offence, the prosecution examined 11 witnesses. 7. The trial Court upon appreciation of oral and documentary evidence on record and considering that it is the appellant who have committed aforesaid offence, convicted and sentenced him as mentioned in para one, against which the appeal under Section 374(2) of the Cr.P.C. has been preferred by the accused/appellant. 8. Learned counsel for the appellant submits that the conviction and sentence recorded by the learned Trial Court is contrary to the facts and circumstances of the case. The FIR was lodged on 18.02.2017 and the alleged incident occurred on 16.02.2017 at 7:30 PM. It is notable here that the father of the prosecutrix PW-07 admitted in his cross examination that he is running a Security Agency wherein 100 to 125 persons are working as Security Guard and the said security agency is within territorial jurisdiction of Police Station Pandri and he has to go to the Police Station for the verification of security guards. Hence the 4 / 10 genuineness of the prosecution story is highly improbable. He further contended that the learned trial court has not considered the material, contradictions and omissions in the evidence of the prosecution witnesses which shows that the case against the appellant has been concoted when the the appellant has demanded his money return back which was given to the complainant for recruitment in govt. job then the complainant lodged false report against the appellant. He would lastly contend that in such circumstances, the appeal deserves to be allowed and the impugned judgment deserves to be set aside. 9. On the other hand, learned State counsel opposes the submissions made by the learned counsel for the appellant and submits that the trial Court has rightly convicted and sentenced the appellant, in which no interference is called for by this Court. 10. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the learned trial Court with utmost circumspection and carefully as well. 11. The mother of the prosecutrix has been examined as PW-8 and she stated that the victim is her daughter. The date of birth of her daughter/victim is 04.06.2010 and she is approximately seven years. The incident is dated 16.02.2017. On the date of the incident, her daughter and her son were playing in the house of the accused appellant with his son. After sometime the victim/daughter came to her 5 / 10 crying, upon which she asked what happened and thereafter she narrated that the accused appellant grabbed her and she saw that the underwear of her daughter was below. The victim told her that when she was playing the accused appellant took her inside the room and removed her underwear. Thereafter he started kissing and licking the private parts of her daughter. Moreover he tried to penetrate his penis inside the mouth of her daughter. However after sometime when the brother of the victim did not find her sister started shouting her name, then her daughter ran away from there and narrated everything to her. 12. The victim has been examined as PW-9 and on being asked what the Conductor has done with her she has replied that when she and her brother was playing in the house of appellant, appellant came and said that he will play along with you all. Thereafter the appellant took her inside the room and started kissing and licking on her private parts. Appellant tried to put his penis inside her mouth. She stated that when her brother opened the room in which the appellant took her, the appellant left her. Thereafter she ran towards her home and her underwear was slightly below the knee. She also stated that she was under fear that the appellant may again grab her and therefore she did not told anything to her mother but when her brother told her mother about the grabbing by the appellant she started crying and narrated everything. 13. The father of the victim has been examined as PW-7 he has stated that the victim is his daughter. The date of birth of his 6 / 10 daughter/victim is 04.07.2010. At present his daughter/victim is 7 years old. On the date of the incident, he was in Urla for some work and when he came back in the evening her daughter came to him and started crying and stated that the accused appellant is a bad uncle, he grabbed her and tried to insert his penis in her mouth. He confirmed about this to his wife and on the very next day he along with her daughter told all this to the landlord. 14. Dr. P. Maheshwar, PW-10, who examined the prosecutrix, stated that he is working as a Medical Officer in District Hospital Raipur since January, 2015. On 18.02.2017, the victim, aged about 06 years, was brought by police constable for medical examination. When he examined the victim he found that there was no external injury. There was no injury on her private parts. There was no bleeding or discharge found on the private parts of the body. Also no force of sexual assault can be seen on her. 15. On perusal of impugned judgment and the statements of the above witnesses, it reflects that there is no dispute as to the age of the victim and the date of birth of the victim is 04.06.2010 which has been duly proved on record and, as such, the findings of the learned Trial Court that victim was aged about 7 years on the basis of school records and the said fact has not been called in question by the appellant, therefore, the aspect of age of the prosecutrix requires no interference. 16. The principle is well settled that the Court can base conviction on the testimony of a child victim, if the same is credible and truthful. 7 / 10 Corroboration is not a must on record but is a rule of prudence. The precaution which the Court should bear in mind while relying upon the testimony of a child victim is that the witness must be reliable, consistent and there is no likelihood of being tutored or under an influence. The version put forth has to be unassailable, trustworthy and of sterling quality, capable of holding appellant guilty on the basis of solitary evidence. 17. When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredients to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years. 18. Section 29 of POCSO Act provides that Court shall presume that the accused has committed the offence for which he is charged with, until contrary is proved. However, the presumption would operate only when the prosecution proves the foundational facts in the context of allegation against the accused beyond reasonable doubt. After the prosecution establishes the foundational facts, the presumption raised against the accused can be rebutted by discrediting the prosecution witnesses through cross-examination and demonstrating the gaps in prosecution version or improbability of the incident or lead defence evidence in order to rebut the presumption by way of preponderance of 8 / 10 probability. 19. It has to be borne in mind that “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.” 20. 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 Vs. 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 9 / 10 under the POCSO Act, 2012 and particularly when the same is proved by adequate evidence before a court of law. 21. As per the statement of the victim (PW-9), she has stated that she know the accused present in the Court. The accused person took her inside the room when she was playing with her brother and his son. He kissed and licked her private parts and tried to penetrate his penis in her mouth. 22. Considering the aforesaid facts and circumstances of the case, particularly the evidences of the victim (PW-9) who has specifically stated the act of the appellant, evidences of her mother (PW-8) and her father (PW-7) and the statement of Dr. PW-8 the medical officer who has examined the victim, it is quite clear from the documentary and oral evidence presented by the prosecution on record and its analysis that the accused has taken her inside the room and tried to assault her sexually, therefore, the prosecution has also been successful in proving beyond reasonable doubt that on the date of the incident, the victim was minor i.e. below the age of 12 years i.e. 07 years and the accused on the said date, time and place, has tried to assault her. Thus, 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 sentenced as awarded by the trial Court is hereby upheld. The present appeal lacks merit and is accordingly dismissed. 23. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 10 / 10 24. 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. 25. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. sd/- (Arvind Kumar Verma) Judge alfiz@