1 2025:CGHC:6404 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 162 of 2020 1 - Aditya Bhagat S/o Harihar Bhagat Aged About 19 Years R/o Village- Prosecutrix, Village, Thana- Jashpur, District Jashpur, Chhattisgarh., District : Jashpur, Chhattisgarh ... Appellant(s) versus 1 - State of Chhattisgarh Through Police Station Jashpur, District Jashpur, Chhattisgarh., District : Jashpur, Chhattisgarh ... Respondent(s) For Appellant(s) : Ms. Sharmila Singhai, Senior Advocate, along with Mr. Sanjay Agrawal, Advocate. For Respondent/State : Mr. Atanu Ghosh, Dy. Govt. Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 04/02/2025 1. The present criminal appeal has been filed by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’) against the impugned judgment of conviction and sentence dated 08.01.2020 passed by learned Special Judge (Protection of Children from Sexual Offences Act, 2012) Jashpur, in Special Criminal Case under the POCSO Act No. 14/2019, whereby the appellant has been convicted for the offence under Section 376(2)(i) of the IPC and sentenced for RI for 10 years with fine of Rs.1000/- 2 in default of payment of fine further RI for 03 months. The appellant has also been convicted for the offence under Section 4 of POCSO Act, however, no separate sentence has been awarded to him in view of Section 42 of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO’ Act). 2. The brief facts of the case are that on 27.02.2019, the victim PW-1 lodged a report to the police against the appellant and another co-accused, who was a juvenile in conflict with the law, with the allegation that on 24.02.2019 at about 09:00 – 10:00 a.m., she had gone to the field for agricultural work. At about 05:00 p.m., she met with her two cousin brothers and on their request, she accompanied them. Near the village Podi, the present appellant and his two friends met them and informed that her mother is searching for her. Then she left the company of her cousin brothers and accompanied the present appellant and his friends. When they reached near river, the present appellant and the juvenile in conflict with law started outraging her modesty, they took her in a hutment near river and then the appellant committed rape upon her and the juvenile in conflict with law caught hold her. By the act of rape, she went in unconsciousness and they left her there. In the morning, she came back to her house and informed the incident to her mother. Due to her ill health, she could not lodge the report immediately. On the report made by the victim, the unnumbered FIR Ex.P/1 has been registered against the appellant and the juvenile in conflict with the law for the offence under Section 376(2)(g) of the IPC and Sections 4 and 5(g) of the POCSO Act. The victim was sent for medical examination to the Community Health Centre, Lodaam, where she was medically examined by PW-6 Dr. Suman Prabha Tirki. While medically examining the victim, the doctor has noticed the following injuries on her body:- • Two linear bruises, dark blue and purpleish in colour, app. Size of 8x2 cm each, present obliquely over the inner aspect of the 3 right thigh. The approximate age of the injury is more than 72 hours. • Two small abrasions with dark brown scabs present over the right side of the upper back (scapular right region). • Multiple linear abrasions, with dark brown scab present over the right lower limb below the knee. Approximately time since the injury is more than 72 hours. • Bluish discolouration of the left intraorbital region, approximately the time of injury is more than 72 hours. • On internal examination, her hymen margin was found red and inflamed at 05:00 o’clock and 07:00 o’clock positions. Rupture is also present at the same position. 3. After medically examining the victim, the doctor has opined that, according to the above clinical examination findings, sexual intercourse has been done. Smear of vaginal discharge is made and sent for chemical examination to FSL, seal packed and handed over to police. The victim was also referred for radiological opinion for age estimation, and her report is Ex.P/9. 4. Spot map Ex.P/2 was prepared by the police. The numbered FIR Ex.P/24 was registered on 28.02.2019 at Police Station, Jashpur. With respect to the age and date of birth of the victim, the police have seized the school register from Saraswati Shishu Mandir, Lodaam vide seizure memo Ex.P/13 and after retaining its attested true copy Ex.P/12-C, the original school register was returned to the school. A certificate of the date of birth of the victim was also obtained by the police from the Headmistress of the Saraswati Shishu Mandir, Lodaam, which is Ex.P/15, and the progress report card of the victim has also been seized vide seizure memo Ex.P/3. The appellant was arrested on 01.03.2019, and he too was set for his medical examination at the Community Health Centre, Lodaam, where PW-3 Dr. Ashutosh Triki medically examined him and gave his report Ex.P/6 and Ex.P/7 and found the appellant capable of performing coital act. The vaginal slide of the victim was sent for his chemical examination to regional FSL, Ambikapur, District Surguja from where report Ex.P/20 was received and semen and sperms were found present on the vaginal slide of the victim. 4 5. Statement of the witnesses under Section 161 of Cr.P.C. and statement of the victim under Section 164 of Cr.P.C. have been recorded and after completion of usual investigation charge-sheet was filed before the learned trial Court for the offence under Section 376(D), 506 of IPC and Section 4, 5(g) of the POCSO Act against the appellant. The charge-sheet against the co-accused, who was a juvenile in conflict with the law, has been filed before the learned Juvenile Justice Board, Jashpur. 6. The learned trial Court has framed charge against the appellant for the offence under Section 376(D) of the IPC and Section 4 of the POCSO Act. After recording evidence of the prosecution witnesses, vide order dated 08.01.2020, the charge of Section 4 of the POCSO Act was amended and in place thereof, the charge of Section 6 was substituted. The opportunity to re- examine and re-cross-examine the witnesses with respect to the amended charge was provided to the parties, but they did not re-examine or re-cross- examine the witnesses. 7. In order to prove the charge against the appellant, the prosecution has examined as many as 14 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances that appear against him, pleaded innocence and submitted that he has been falsely implicated in the offence. 8. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of this judgment. Hence, this appeal. 9. 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, which cannot be the basis to convict the appellant for the offence in question. There is no legally admissible evidence with respect to the age of the victim that 5 she was a minor on the date of the incident. The school record is not proved in accordance with the law. The FIR was lodged about 03 days after the incident, and there is no explanation for the delay in lodging the FIR. The other witnesses who allegedly were present on the spot or met with the victim at the time of the incident, and even her cousin brothers, have not been examined by the prosecution. The victim was having a love affair with another person, and the present appellant had seen her in a compromising position, and only to create pressure upon the appellant not to inform her affair to her family members, she made an allegation against the appellant. The conduct of the victim itself is doubtful, as she was roaming throughout the night along with persons whom she did not know. In the absence of any cogent and clinching evidence against the appellant, he cannot be convicted and is entitled to an acquittal. 10. On the other hand, learned counsel appearing for the State opposes in his submissions made by learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. But her minor omissions or contradictions, the evidence of prosecution witnesses is fully reliable and sufficient to hold conviction of the appellant. Sufficient explanation has been given for the delay of 03 days in lodging the report. The evidence of the victim does not require any corroboration, and her evidence itself is sufficient to convict the appellant for the offence in question. The allegation of the victim is supported by the evidence of doctor who found injuries on the body of the victim and further the FSL report confirms the presence of semen and sperm in the vaginal slide of the victim which corroborates the act of rape upon her. The age of the victim has been proved by the school records and evidence of PW-7, who is the headmaster of the school. There are overwhelming evidence against the appellant that on the alleged date and time he committed rape upon the victim and the learned 6 trial Court has rightly appreciated the evidence available on record and convicted the appellant which needs no interference. 11. I have heard learned counsel for the parties and perused the record of the trial Court. 12. The first and foremost question that arises for consideration would be the age of the victim as to whether, on the date of the incident, she was a minor or not. 13. The prosecution has mainly relied on the school register Ex.P/12-C, which is seized vide seizure memo Ex.P/13, and proved by PW-7, who is the headmaster of the school. 14. PW-7 has stated in his evidence that he has been working as Headmaster at Saraswati Shishu Mandir, Lodaam, since 1997. The police have seized the school register with respect to the date of birth of the victim vide seizure memo Ex.P/13, and after retaining the attested true copy of the school register Ex.P/12-C, the original register was returned to the school. According to the school register, she was admitted on 19.06.2013 in Class-I in the school, and the date of birth of the victim is 14.11.2006. he also issued a certificate with respect to her date of birth on the basis of the school register, which is Ex.P/15. In cross-examination he admitted that who has taken her for admission in the school he could not remember. The prescribed age of the child for admission in Class-I is 6 years. He did not know whether the victim was studying up to Class-II at Primary School, Putri Chaura or not. From the evidence of this witness, the school register proved that the date of birth of the victim is 14.11.2006, and she got admitted to the school in Class-I on 19.06.2013. No substantive cross-examination has been done of this witness to rebut the entries made in the school register. Even, no suggestion has been given to this witness in his cross-examination that he is not the author of the school register, or incorrect date of birth of the victim has been 7 recorded in the same. There is no cross-examination with respect to the certificate Ex.P/15 issued by him. 15. The admissibility and evidentiary value of the school register have been considered by the Hon‘ble Supreme Court in the matter of “Jarnail Singh v. State of Haryana” 2013 (7) SCC 263, the Hon'ble Supreme Court in Para 22 to 24 held that:- “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under : “12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In 8 case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW- PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, 9 would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion. 24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW - PW6 could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied upto class 3 only, and thereafter, had left her school and had started to do household work. The prosecution in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW-PW6, on the next available basis, in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW4), to prove the age of the prosecutrix VW – PW6. Satpal (PW4) was the Head Master of the Government High School, Jathlana, where the prosecutrix VW - PW6 had studied upto class 3. Satpal (PW4) had proved the certificate Exhibit-PG, as having been made on the basis of the school records indicating, that the prosecutrix VW - PW6, was born on 15.5.1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are therefore of the view, that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW – PW6. It would also be relevant to mention, that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High Court to rely on any other material including the ossification test, for determining the age of the prosecutrix VW-PW6. The deposition of Satpal-PW4 has not been contested. Therefore, the date of birth of the prosecutrix VW - PW6 (indicated in Exhibit P.G., as 15.7.1977) assumes finality. Accordingly it is clear, that the prosecutrix VW-PW6, was less than 15 years old on the date of occurrence, i.e., on 25.3.1993. In the said view of the matter, there is no room for any doubt that the prosecutrix VW - PW6 was a minor on the date of occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court, that even if the prosecutrix VW-PW6 had accompanied 10 the accused-appellant Jarnail Singh of her own free will, and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor.” 16. PW-1, the victim, had disclosed her age as 13 years when her evidence was recorded. She stated that her date of birth is 14.11.2006. In cross- examination, she admitted that she disclosed her date of birth, as recorded in her school record. She admitted that she could not tell what date of her birth is recorded in Anganbadi. She also admitted that her colleagues and in the higher class. She explained that she took admission in the nursery class and her colleagues have taken admission directly in Class-I. She admitted that there is no nursery class in Saraswati Shishu Mandir, but she voluntarily explained that there was an Arun and Udai Class at Saraswati Shishu Mandir in which she studied. She also stated that she studied at Primary School Putri Chaura up to Class-II, but due to her age, she was admitted to Saraswati Shishu Mandir. 17. PW-2, the father of the victim, has stated that the age of the victim is 13 years. In cross-examination, he admitted that his daughter studied at Primary School Putri Chaura up to Class-II, and thereafter she was admitted to Saraswati Shishu Mandir. He could not remember the date of birth of his children. But he recorded the age of the victim in the school at the time of her admission as 06 years. The employee of Anganbadi has recorded her date of birth on their own, and the same date of birth is recorded in her school record. PW-5, the mother of the victim, did not disclose any facts about her age or date of birth. 18. PW-6, Dr. Suman Prabha Tirki, who medically examined the victim, has stated in her evidence that on 28.02.2019, the victim, aged about 12 years, was brought before her for her medical examination. In cross-examination, she admitted that the victim had disclosed her age as 12 years. Along with the victim, her mother also came. She has not been cross-examined in detail with respect to the age of the victim. 11 19. After considering the evidence led by the prosecution with respect to the age of the victim as well as in view the law laid by Hon’ble Supreme Court in Jarnail Singh (supra) the learned trial Court has concluded that on the date of incident the victim was aged about 12 years 03 months and 10 days which, in the opinion of this Court cannot be said to be perverse or contrary to the evidence available on record. 20. So far as the offence of rape upon the victim is concerned, I again examine the evidence available on record. 21. PW-1, the victim has stated in her evidence that on 25.02.2019, she had gone to her field. At that time, her two cousin brothers met her and asked her to accompany them. When she accompanied them and went to the village Podi, on the way, the present appellant and his two friends met them. They informed them that her parents had sent them to search for her and asked her cousin brother they take care of the victim. She too has assured her cousin brothers that she is well-acquainted with the appellant and his two friends, as they are also from her village and had accompanied them. When they reached near the river, the appellant committed rape upon her and the other accused who was juvenile in conflict with law, caught-hold her. When they came to their house after the incident, it started raining, and then they took shelter in a hutment. The appellant again committed rape upon her there. They stayed there for the whole night, and in the morning, she returned to her house and informed the incident to her mother. On the third day, she lodged the report to the police, which is Ex.P/1. 22. In cross-examination she admitted that at the time when she met with her cousin brothers, her friend (xxx) was also there with her. She denied that she along with her cousin brother, her friend (xxx) were enjoying the music in the speaker. She also denied that the appellant came there after hearing the noise of the music. She voluntarily stated that when they were going, the appellant and his friends met on the way. She also denied that she along with 12 her cousin brother and her friend (xxx) were in objectionable condition and when the appellant and his friends came there they started running from there. She also denied that she was running along with her cousin brother (ABC) and her friend (xxx) running along with her another cousin brother (DEF). She admitted that after coming the appellant and his two friends, her friend (xxx) started running from there. She further stated her two cousin brothers were on a scooty and since all three could not go by the scooty, they were going by walking by pushing the scooty. She denied the telephonic conversation with her mother from the mobile phone of the appellant. She also denied that the appellant and his two friends had seen her in an objectionable condition, and they said that they would report the incident to her parents, therefore, she fled away from the place. She also denied that she had been fleeing for the whole of the night, and the appellant and his two friends were searching for her. She also denied that in the morning they had caught her near the river and taken her to her house. The appellant and his two friends left her near her field. She denied that when she came back to her house in the morning, her parents had brutally beaten her, for which she fell ailment for about 3 days. She voluntarily stated that her parents have scolded her. She also denied that to cover her fault and to escape from the allegation of objectionable condition with her cousin brothers. She lodged a false report against the appellant. 23. From the entire evidence of this witness, she stuck in saying that on the date of the incident, she had gone to her field where she met with her two cousin brothers. When she was going with them to the village Podi. On the way, she met with the appellant and his two friends. On being asked that they are searching her, she accompanied the appellant and his two friends and returned to her village. Near the river, the appellant committed rape upon her. The next morning, she returned to her house and informed the incident to her mother and ultimately lodged the report against the appellant and another co- 13 accused, who is a juvenile in conflict with the law. There is nothing in her cross-examination that makes her evidence doubtful. From the evidence of the victim, she could be put in the sterling witness as has been held by the Hon’ble Supreme Court in the case of Santosh Prasad alias Santosh Kumar vs. State of Bihar 2020 (3) SCC 443. In para 5.4.2, the Hon’ble Supreme Court has held that: 5.4.2. In Rai Sandeep, this Court had an occasion to consider who can be f said to be a "sterling witness". In para 22, it is observed and held as under: (SCC p. 29) "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 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." 14 24. The evidence of the victim has been supported by the evidence of PW-6 Dr. Suman Prabha Tirki, who medically examined the victim. While medically examining the victim, the doctor has noticed various external and internal injuries on her body and opined that she has undergone sexual intercourse. In her cross-examination, she remained firm in saying that she had undergone the sexual intercourse. The internal injuries found on the body of the victim could have been inflicted during forceful sexual intercourse. Further in the vaginal side of the victim, the semen and sperm were found present as per the FSL report Ex.P/20 and the appellant could not given any explanation in his 313 Cr.P.C. statement. 25. PW-2, the father of the victim who stated in his evidence that on the date of the incident, when he returned from Lodaam market, his daughter was not found in the house. She had gone to his field but could not return in the evening he sent the appellant and his friend for her search in the next morning his daughter came back and informed that the appellant and his friend outrage her modesty and the present appellant committed rape upon her twice. His daughter has lodged a report to the police. In the cross- examination, he admitted that the incident was disclosed by the victim to her mother, and her mother had informed him about the incident. He denied the suggestion given by the defence that his wife has informed him that the cousin brothers of the victim have committed rape upon her. He admitted that he, along with his family members, had discussed about what to do in the matter and then they lodged the report. He denied that the cousin brothers of the victim had done any wrong to her, therefore, no report has been lodged against them. He also denied the suggestion that his daughter was being seen in an objectionable condition with her cousin brothers. He admitted that the other accused who is juvenile in conflict with law is the brother of the friend of the victim (xxx). He also admitted that along with the appellant and his friend, another person (XYZ) was also there with them, who is his 15 relative. He also admitted that in the morning his wife had inquired from the appellant and his friends, but he denied that his wife had informed him that his daughter was found in an objectionable condition with her cousin brother, which had been informed by the appellant and his two friends. He denied that he had assaulted the victim with a danda in the next morning. He voluntarily stated that to convince her, he slapped her gently. 26. PW-4 is the relative of the victim who also accompanied the appellant and the other accused, who is a juvenile in conflict with the law. He stated in his evidence that on the date of the incident, the mother of the victim asked him and the accused persons to search her daughter and then during the search, they found the victim near the river. At that time, she was with her friend (xxx) and three boys of village Podi. After seeing them the victim flee along with her cousin brother and her friend (xxx) also flee towards her house. He had not seen them fleeing, but he was informed by her cousin brothers. When they were in search of the victim, her cousin brothers met them at village Podi, they concealed her somewhere and informed that the victim had returned to her house. When they again reached there after some time, they found the victim who was along with her cousin brothers. When they were taking the victim to her house, it started raining, and then they took shelter in a hutment and went to sleep. When he woke up, he did not find the victim there. Then he again searched her, but she could not be found. The next morning, when they were returning to the house, they found the victim near the river, and then they took her to her house. At this stage, he has been declared hostile and cross-examined by the prosecution. She stated that when the victim met at the village Podi, she accompanied the appellant, the juvenile in conflict with the law and him. The appellant asked them to go via river side. He denied that the appellant has outrage the modesty of the victim or he committed rape upon her. He admitted that the appellant and the juvenile in conflict with the law are his relatives. In cross-examination he 16 admitted that when they reached near village Bhadra in search of the victim, they found the victim, her friend (xxx) and cousin brothers of the victim and they were enjoying music in mobile phone. He denied that they were in an objectionable condition. 27. PW-5 is the mother of the victim who stated in her evidence that on the date of the incident, her daughter had gone to the field but could not return in the evening. She sent the appellant and his two friends on her search. The next morning, they came back and informed that she could not be found. After some time, her daughter returned, and when she inquired, she disclosed that when she was going along with her cousin brothers to the village Podi, on the way, the appellant and his two friends met them and informed her that her mother is calling her, and then she accompanied the accused persons. They kept her in the jungle side for whole of the night and the appellant committed rape upon her. Her daughter has lodged the report with the police. In cross- examination she stated that along with her daughter, her friend (xxx) was also there with her but the juvenile in conflict with law sent her back. She stated that in the morning, the appellant and his friend informed that they saw the victim along with her cousin brothers near the river. She denied that the victim has informed her that her cousin brothers have committed rape upon her. She also denied that to save the cousin brothers of the victim, they discussed it in the family, and then the report was lodged after three days. She voluntarily stated that the family members of the appellant were of the view to settle the issue in the village itself, and for about 2 - 3 days, when they did nothing, they lodged the report. 28. PW-12 is the cousin of the victim with whom she was there on the date of the incident. Though he was declared hostile but he stated in his evidence that on the date of the incident, he along with the victim and her another cousin brother were coming to his house, on the way the appellant and his two friends met them and on their say that her mother is searching her, she 17 accompanied them. In cross-examination he denied that he along with the another cousin brother of the victim committed rape upon her. He admitted in his cross-examination that the appellant and his two friends met them near the village Podi. He also admitted that uptill 07:00 p.m., the victim was with them. Since they did not have the mobile numbers of her family members, they could not inform them. He also denied that the appellant and his two friends had seen them in an objectionable condition with the victim, and therefore, to save themselves, they asked the victim to lodge a report against the accused persons. 29. From the evidence of the prosecution witnesses, it is quite vivid them on the date of incident the victim had gone to his agricultural field from where she was going to her relative house along with her cousin brother on the way they met with the accused persons including the appellant and on being asked, she accompanied the accused persons. On the way it was started raining and they took shelter in the hutment near the river and in the night the appellant committed rape upon her. The next morning, she returned to her house and reported the incident to her mother. Thereafter, she lodged the report on 27.02.2019. The substantive allegation of offence of rape against the appellant could not be rebutted by the defence in the cross-examination of the witnesses rather the presence of the appellant along with the victim at the relevant date and time is proved by the evidence. The allegation of rape upon the victim is further supported by the medical report of the victim Ex.P/9 in which external and internal injuries have been found on the body of the victim and the FSL report Ex.P/20, semen and sperm were found on the vaginal slides of the victim. 30. Another submission made by learned counsel for the appellant is that the FIR has been lodged after about three days, and there is no explanation for the delay in lodging the report. 18 31. The alleged is occurred in the intervening night of 24.02.2019 and 25.02.2019, and on the second next day, i.e. on 27.02.2019, the report was lodged by the victim. The father of the victim, PW-2, has stated that they discussed with their family members what to do in the matter, and then the report was lodged. The mother of the victim PW-5 has stated that when they had a talk with the family members of the appellant, they were in the view to settle the dispute in the village itself, but they did nothing for about 2 days, and then they lodged the report. She also stated that the family members of the appellant assured them that they would pay the compensation, but the same has not been paid, and then they lodged the report. 32. From perusal of the evidence available on record, it is found that there is no inordinate delay in lodging the report, but the report has been lodged on the second next day after the date of the incident, and there is an explanation for the delay of two days in lodging the report. 33. In the matter of State of Punjab vs. Ramdev Singh, 2004 (1) SCC 421, it has been held by the Hon’ble Supreme Court that delay in lodging the FIR would not be fatal to the prosecution case if the same is explained to the satisfaction of the Court. In para 9, the Hon’ble Supreme Court has held that: "9. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground c of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in the prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the d satisfaction of the court, the same cannot by itself be a ground for disbelieving and discarding the entire prosecution version, as was done by the High Court in the present case." 34. In the matter of Deepak vs. State of Haryana reported in 2015(4) SCC 762, in para 14 and 15, the Hon’ble Supreme Court has held that: "14. Coming to the first submission relating to the lodging of the FIR for the commission of the offence is concerned, in our considered opinion, there 19 was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but also considering the facts and circumstances of the case, it was natural. 15. The courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such e cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by the victim or by any member of her family. Indeed, this has been the consistent view of this Court as has been held in State of Punjab v. Gurmit Singh." 35. Therefore, in view of the evidence available on record and also the law laid by the Hon’ble Supreme Court in this regard, this Court is of the opinion that the delay of two days in lodging the report has been sufficiently explained and the prosecution case cannot be thrown out on that ground alone. 36. The Hon’ble Supreme Court in the matter of “Prahlad and Another vs. State of Haryana”, 2015 (8) SCC 688 has considered the dignity and bodily integrity of an individual, which is recognized, assured and affirmed by the very essence of Article 21 of the Constitution of India. In para 17, it has been held by the Hon’ble Supreme Court that: "17. It has to be borne in mind that an offence of rape is basically an b 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 civilised 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 c indulges in a crime of such nature not only does he violate the penal provision of IPC but also the 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 d framework, its ethos and philosophy, subject to certain limitations. Dignity of every citizen flows from the fundamental precepts of 20 the equality clause engrafted under Article 14 and right to life under Article 21 of the Constitution, for they are the "fons juris" of our Constitution. The said rights are constitutionally secured." 37. In the present case, the appellant has been convicted for the offence under Section 376(2)(i) of the IPC and Section 4 of the POCSO Act. So far as the conviction of the appellant under Section 376(2)(i) is concerned, the same cannot be upheld for the reason that the provisions of Section 376(2)(i) is omitted by the Amendment Act, 22 of 2018, with effect from 21.04.2018. The present offence is alleged to have been committed in the intervening night of 24.02.2019 and 25.02.2019, which is after the omission of Section 376(2)(i) of IPC with effect from 21.04.2018. On the date of the alleged incident, the provision of Section 376(2)(i) was not in existence and therefore he cannot be convicted and sentenced for that offence. 38. The appellant is also convicted under Section 4 of the POCSO Act, but no separate sentence has been awarded to him as the sentence under Section 376(2)(i) has been awarded in view of the provision of Section 42 of the POCSO Act. When the conviction and sentence of the appellant under Section 376(2)(i) is found unsustainable, he can be convicted and sentenced for the offence under Section 4 of the POCSO Act. 39. The Section of the POCSO Act has also been amended by the Act of 25 of 2019 with effect from 16.08.2019. Before its amendment, the provisions of Section 4 were as below: "4. Punishment for penetrative sexual assault - Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life. and shall also be liable to fine." 40. In the present case the date of incident is in the intervening night of 24.02.2019 and 25.02.2019 which is prior to the amendment of Section 4 of the POCSO Act, and therefore, the appellant can be sentenced for the offence under Section 4 of the POCSO Act, as per the existing provisions on 21 24/25.02.2019 which provides the minimum sentence of 7 years imprisonment. 41. Therefore, from the consideration, the conviction and sentence awarded to the appellant for the offence under Section 376(2)(i) of IPC, is hereby set aside and the conviction of the appellant for the offence under Section 4 of the POCSO Act is hereby affirmed, and he has been sentenced for RI for 07 years with a fine of Rs. 1,000/- in default of payment of fine, further RI for 01 month. Accordingly, the appeal filed by the appellant is partly allowed. 42. The appellant is reported to have been in jail since 01.03.2019, he is entitled to set-off of his undergone period during the trial as well as during the present appeal. 43. 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. 44. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.06.09 18:24:03 +0530