1 2025:CGHC:52639-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1410 of 2021 Rathram Kenwat S/o Late Bhaiyaram Kenwat, aged about 30 years R/o Rainpur (Karra), Police Station Ratanpur, District Bilaspur, Chhattisgarh ... Appellant versus State of Chhattisgarh, through Police of Police Station Ratanpur, District Bilaspur, Chhattisgarh ... Respondent For Appellant : Mr. Shikhar Sharma, Advocate For Respondent/State : Mr. Saumya Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 29 . 10 .202 5 1. This criminal appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 24.09.2021 passed by the learned Additional Sessions Judge, Second Fast Track Special Court, Bilaspur, District – Bilaspur (C.G.) in Special Criminal (POCSO) Case No. 103 of 2018, by which the appellant has ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 been convicted and sentenced with the direction to run all the sentences concurrently in the following manner : CONVICTION SENTENCE Under Section 363 of IPC R.I. for 07 years and fine amount of Rs. 1000/-, in default of payment of fine amount, additional R.I. for 04 months. Under Section 366-A of IPC R.I. for 10 years and fine amount of Rs. 1000/-, in default of payment of fine amount, additional R.I. for 06 months. Under Section 376AB of IPC R.I. for Life which meant imprisonment to the rest of natural life of that person and fine amount of Rs. 2000/-, in default of payment of fine amount, additional R.I. for 06 months. 2. The prosecution's case, in brief, is that the complainant/ informant, the victim's mother, filed an oral report at the Ratanpur police station on 16.07.2018, stating that she lives in Rainpur village and is a farmer. Her daughter, the victim, is a 7-year-old student in Class 2. A pooja ceremony for the new house was held on 14.07.2018, in the evening. Invitations were extended to the villagers, and a neighbor, Rathram Kewat, alias Kotmiya, also attended. At approximately 5:00 p.m., he 3 forcibly took her daughter, the victim, on his TVS motorcycle. When his elder daughter, aged about 16 years, saw him being taken away her younger sister, she questioned him. Rathram Kewat remained silent and sped away by speeding his motorcycle. After the pooja, she was busy serving food to the guests. One Lateel Kewat from her village brought her daughter, the victim, home at around 07:30 in the evening and left her there. The next day on 15.07.2018 at 07:00 in the morning, Lateel Kewat came to his house and told that your daughter, the victim, was taken to Khutaghat Dam by Rathram Kewat and was raping her. When your daughter started crying, he was working in his garden and when he heard the crying sound, he called out, then Rathram left your daughter in the garden and ran away. Your daughter came to him and told him about the incident, then I brought your daughter home from there and left her in your house. When she saw her daughter's private parts, it was swollen. When she asked her daughter, the victim, she also told her about the incident. 3. Sub-Inspector B.N. Roy filed a First Information Report (FIR) against accused Rathram Kewat under Crime No. 243/2018, under sections 363, 366, and 376 of the Indian Penal Code and Sections 4 and 6 of the Protection of Children from Sexual Offences (POCSO) Act. Witnesses statements were recorded in the case. The accused was arrested after seizure proceedings and other procedures. Subsequently, after a thorough investigation, the charge sheet was presented to the Court of learned Additional Sessions Judge, Second Fast Track Special Court, Bilaspur, District – Bilaspur (C.G.) for trial on 25.09.2018. 4 4. After the charge sheet was read out and explained to him, the accused denied having committed the crime and claimed trial. In order to bring home the offence, the prosecution examined as many as 17 witnesses and exhibited 23 documents in support of its case. On admission of defence under Section 313 CrPC, the statement of the defence witness Smt. Beena Kewat was recorded by the accused in his defence and he has stated that he is innocent and has been falsely implicated. 5. The trial Court upon appreciation of oral and documentary evidence on record and considering that it is the appellant who had committed aforesaid offence, convicted and sentenced him in the aforementioned manner, against which the appeal under Section 374(2) of the Cr.P.C. has been preferred by the accused/appellant. 6. Learned counsel for appellant would submit that he is not pressing this appeal as far as it relates to conviction part of impugned judgment and is confining his argument to the quantum of sentence only. He submits at the time of incident, the appellant was aged about 30 years and the learned trial Court has awarded the sentence of life imprisonment, which would mean imprisonment for rest of the natural life which is too harsh, without assigning any cogent reason, therefore, considering the evidence available on record, the same may be converted to rigorous imprisonment for 20 years, which is minimum sentence. 7. On the other hand, learned State Counsel opposing the prayer of learned counsel for appellant, would submit that looking to the fact that the 5 appellant committed rape of the minor victim who was below age of 12 years at the time of incident, which has been duly proved by the prosecution, as such, leniency should not be shown to appellant herein. 8. 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. 9. In the instant case conviction of the accused/appellant is substantially based on the testimonies of the victim (PW-5), mother of the victim (PW-1), sister of the victim (PW-2), father of the victim (PW-3) and uncle of the victim (PW-12) and FSL Report (Ex.P-23). 10. The first question for consideration before this Court would be, whether the trial Court has rightly held that on the date of incident, the victim was minor? 11. 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 ingredient 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. 12. To substantiate the age of the victim, the prosecution witness, the victim (PW-5) has stated her age to be 08 years and the victim's mother (PW-1), the victim's sister (PW-2) and the victim's father (PW-3) have 6 stated that the victim's age was 07 years at the time of the incident, which remained unchallenged and unbroken in the cross-examination. Regarding the age of the victim (PW-5), the prosecution witness, Investigating Officer Shekhar Lal Kashyap (PW-15) has stated that regarding the age of the victim, he had seized the mutation register related to the victim from the headmaster of Government Primary School, Rainpur, as per seizure memo Ex.P. 12. This is being confirmed by the statement of teacher Dinesh Kumar Kashyap (PW-8) and the attested copy of the mutation register, Ex.P. 13 "C", which remained uncontroversial in the cross-examination. 13. In this regard, prosecution witness teacher Dinesh Kumar Kashyap (PW-8) has stated that the Station House Officer, Ratanpur, had given him a letter vide Ex.P.11 to provide the mutation register for the information regarding the date of birth of the victim and the mutation register was seized from him as per Ex.P-12. In the entry number 786 of the original mutation register, Ex.P-13, the date of birth of the victim is mentioned in words and figures as 01.01.2011. The witness has stated that Ex.P-13 "C" is the attested copy of the said register. On perusal of Ex.P-13 "C", the date of birth of the victim is mentioned as 01.01.2011. The defence has not presented any oral or documentary evidence to refuse the said date of birth, therefore, there is no reason to disbelieve the date of birth of the victim, as 01.01.2011 hence, we are of the considered opinion that the trial Court has rightly held that the date of birth of the victim is 01.01.2011 and on the date of incident i.e. 14.07.2018 she was minor and her age was 07 years, 08 months and 7 13 days. 14. The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 363 of the IPC ? 15. The appellant has been convicted for offence under Section 363 of the IPC, which is punishable for kidnapping. Kidnapping has been defined under Section 359 of the IPC. According to Section 359 of the IPC, kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states as under:- “361. Kidnapping from lawful guardianship.-Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.” 16. The object of Section 359 of the IPC is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients:- (1) Taking or enticing away a minor or a person of unsound mind. (2) Such minor must be under sixteen years of age, if a male, or under eighteen years or age, if a female. 8 (3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind. (4) Such taking or enticing must be without the consent of such guardian. 17. So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18 years of age; (ii) such minor was in the keeping of a lawful guardian, and (iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian. 18. The Supreme Court while considering the object of Section 361 of the IPC in the matter of S. Varadarajan v. State of Madras1, took the view that if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so and held that if evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian and held as under:- “It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place 1 AIR 1965 SC 942 9 to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.” 19. Reverting to the facts of the present case in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra), it is evident that on the date of incident i.e. on 14.07.2018 the victim (PW-5) was taken away by the accused on his TVS motorcycle, which was seen by her elder sister (PW-3) and when she asked the accused where he was taking away her younger sister, the accused remained silent and sped away by speeding his motorcycle. As such, we are of the considered view that the trial Court is absolutely justified in convicting the appellant for offence under Section 363 of the IPC. 20. The next question for consideration before us is whether the appellant has committed rape on minor victim? 21. Regarding the incident, the victim (PW-5) stated that she knew the accused Rathram. Upon being asked suggestive questions by the prosecution, the witness admitted that the accused Rathram had sexually assaulted her and that he had taken her there by lying about offering her pakodas. The accused had taken her to Khuntaghat, removed his clothes and hers, and inserted his urine container into her anus, causing bleeding. She had screamed when she saw a man; he was from her village. The man approached her and took her home on a 10 bicycle from the accused Rathram. In cross-examination, the witness denied the defense's suggestion that she had not been raped. She also denied the defense's suggestion that the accused had not taken her with him, and she also denied that the accused had not sexually assaulted her. 22. Prosecution witness Lateel Ram Kewat (PW-9) stated that he knew the accused and the victim. The incident occurred on 14.07.2019. He was working in his garden in the evening when he heard a child crying. Upon hearing the sound, he went there and saw Rathram hiding in the bushes with the child. He called out, "Why are you making the child cry? It's evening." Hearing this, the girl came out of the bushes and approached him. He then took the victim home and handed her over to her parents. 23. The prosecution witness (PW-1), the victim's mother, stated that on the day of the Rath Yatra, a Katha-Puja ceremony was held at her home, attended by her relatives and the accused. While she was busy attending to guests, and the victim was playing in the courtyard, the accused, under the pretex of feeding her, took her in his bike to Budanpara. Around 6 p.m., Lateel Ram, a resident of the same village, brought the victim and stated that he had brought her after hearing the girl's cries. The next day, Lateel stated that the accused had taken the victim to Budanpara and was sexually assaulting her. Hearing the girl's cries, he went to the scene where the accused was committing the crime. Her daughter cried all night. The next day, when questioned by others and by her, the victim confessed to the accused's sexual assault. 11 She also told Shanti Bai about the incident in the morning. While bathing the victim that night, blood was found in her panties. The next day, he applied medicine to her private parts. In cross-examination, though the witness accepted the defense's suggestion that she did not see her daughter being taken away on a motorcycle by the accused, but she stated voluntarily that her elder daughter saw it. The witness also refuted this defense suggestion in cross-examination that her daughter and Lateel Kewat did not tell her anything about the incident that night and the next day Lateel Kewat told her husband about the incident. In cross-examination, the witness has rejected the suggestion of the defence that her daughter the victim did not go to lodge a report and the companion has accepted the suggestion that on the night of the incident she had seen blood in the victim's panties and the witness has denied that on the date of the incident her daughter had voluntarily gone with the accused and the accused had not done any wrong to her daughter. 24. Prosecution witness (PW-3), the victim's father, stated that on the second day of the incident, Lateel Ram Kewat of the village came to his house and told him that yesterday, Ratharam Kewat of the village took the victim on his bike to the Khuntaghat dam and was raping her. When she shouted, "Who is there?", the victim ran crying and came running to him. When Lateel asked, the victim revealed that the rapist was Ratharam, her brother-in-law, and she insisted on going home with Lateel. Lateel then brought the victim home. He informed his wife and other guests about the incident. After the guests left, the victim told her mother and sister about what had happened. Upon being questioned by 12 the prosecution, the witness admitted that he had shared the details of the incident provided by Lateel Ram Kewat with his relatives. When asked by her mother and sister, the victim told them that the accused had raped her. The accused has committed a wrong act with her and threatened to kill her with a knife if she told anyone. In cross- examination, the witness has rejected the defence's suggestion that the accused has not committed any wrongdoing with his daughter, the victim, and that he has falsely implicated the accused only at the behest of Lateel. 25. The prosecution witness (PW-2), the sister of the victim, stated that on 14.07.2018, after the Katha was over at home, she went to graze the buffaloes in the old house at about 4:30-5:00 pm. At that time, she saw the accused taking her sister on his bike towards Karra village with her sitting on the pillion. She shouted, "Where are you going?" The accused sped away. After talking to her grandparents, she returned home at about 7:00 pm and saw her sister, the victim, sleeping on the cot. At about 8:00 pm, the victim woke up and started jumping on the cot, screaming and crying. She saw the victim's private parts, which were bloody, torn, and swollen. In cross-examination, the witness has rejected the suggestion of the defence that the victim had not told her anything and the witness has also denied that the accused has not committed any incident and she is giving the statement as told by Lateel. 26. The prosecution witness (PW-12), the victim's uncle, stated that the incident occurred in the year 2018. On the date of the incident, a 13 Satyanarayan Katha was being held at his home. Accused Ratharam Kevat was also present. During the Katha, accused Ratharam Kevat had taken her niece, the victim, to Khuntaghat. Later he came to know that his niece, the victim, had been raped by Rathram Kevat. Lateel Ram Kevat had brought his niece, the victim, home and then they took the victim to the police station to lodge a report. The report was lodged at the police station by his sister-in-law (bhabhi). In cross-examination the witness accepted the defence's suggestion that he had not seen the accused Rathram Kevat taking his niece, the victim, away and the witness accepted the suggestion that he was unaware of the incident till the night of the incident. 27. Dr. Poonam Singh (PW-4) stated that the victim was brought to her for examination by female constable Rupanjali Sonche. Upon external examination, she found a scratch on her right buttock, measuring 0.3 x 3 cm, approximately 3 to 4 days old. Upon internal examination, she found minor scratches and redness on the vaginal membrane at the 6 and 9 o'clock positions, and a small wound, approximately 0.2 x 0.3 cm, at the 6 o'clock position on the vaginal opening. Based on the injuries, she concluded that sexual intercourse had possibly been attempted on the victim. The injuries were approximately 2 to 3 days old. She did not provide a clear opinion on whether complete sexual intercourse had occurred. She prepared two slides and a swab from the vaginal fluid, sealed them, and handed them to the female constable for chemical analysis. The victim was referred to the District Hospital, Bilaspur, for age determination and expert opinion. 14 The medical report provided by her is Ex.P.7, which bears her signatures on parts a to c. The witness's statements remained unchallenged and uncontroversial during cross-examination. 28. Dr. C.M. Tiwari (PW-10) has stated that the victim was brought before her by lady constable No. 985 Rupanjali Sonche of Police Station Ratanpur for secondary examination and opinion regarding her treatment. After the examination, he agrees with the investigation report and conclusion of the first examining lady doctor Dr. Poonam Singh. As per the above, the medical evidence and report Ex.P. 7 confirms the presence of injuries on the body of the victim and in the vagina. According to the doctor, an attempt was probably made to have sexual intercourse with the victim, which will definitely be confirmed after the chemical examination. 29. In this regard, the prosecution witness, investigating officer B.N. Roy (PW-16) has stated that he had sent the seized material to the office of Regional Forensic Science Laboratory, Bilaspur for chemical test, the report of which is Ex.P-23, in which human sperm has been reported to be found in exhibit 'B'. According to the FSL report Ex.P-23, human sperm have been found in the alleged swab of the victim (PW-5) marked with 'A' and the alleged slide of the victim marked with 'B', which confirms that the victim (PW-5) was raped. 30. Prosecution witness Investigating Officer B.N. Roy (PW-16) has stated that he had filled up the examination form Ex.P-22 for the examination of the accused and sent him along with the constable to CHC Ratanpur, which is corroborated by the statement of Dr. A.K. 15 Srivastava (PW-17) and the examination report Ex.P-22-A. In this regard, Dr. A.K. Srivastava (PW-17) has stated that he examined the accused and had given report Ex.P-22-A and according to him, accused Rathram Kewat is capable of having sexual intercourse. 31. Thus, in this case, it is proved beyond reasonable doubt that the accused abducted the victim aged 07 years from the custody of her lawful guardian and abducted/kidnapped the victim with the intention of compelling or luring her for illicit sexual intercourse and committed rape by having sexual intercourse with the victim aged 07 years, who is a child below 12 years of age, at Khuntaghat Dam and committed aggravated penetrative sexual assault by having sexual intercourse with the victim aged 07 years, who is a child below 12 years of age. 32. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/convict. 33. Consequently, the conviction and sentence as awarded by the trial Court under Sections 363 and 366 of the IPC is hereby upheld. So far as the conviction under Section 376AB of the IPC Act is concerned, the same is also upheld. 34. As per the amended provisions of criminal law (by ordinance 2018) wherein Section 376AB was inserted after Section 376A which reads as under : 16 "376AB - Person committing an offence of rape on a woman under twelve years of age shall be sentenced with rigorous imprisonment of not less than 20 years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person's natural life and with fine or with death." 35. In our considered opinion in the instant case the alleged offence is not committed in barbaric and brutal manner, hence it does not fall within "rarest of rare" case to award maximum punishment as prescribed under the law particularly, when the learned trial Court without assigning any cogent reasons, has awarded maximum sentence under Section 376AB of IPC. 36. Thus, considering age of the accused at the time of incident and further considering the fact that the learned trial Court without assigning any cogent reasons, has awarded maximum sentence under Section 376AB of IPC, this Court is of the view that the sentence of life imprisonment which would mean imprisonment for rest of the natural life, is too harsh and as such, the sentence under Section 376AB of IPC is converted to rigorous imprisonment for 20 years (which is minimum sentence) instead to life imprisonment which would mean imprisonment for rest of the natural life. The imposition of fine amount and the default sentence is upheld. 37. The appellant is stated to be in jail since 16.07.2018 being the date of arrest. He is directed to serve out the sentence as modified above. 38. The criminal appeal is partly allowed to the extent indicated 17 hereinabove. 39. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also 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/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Chandra