1 CRA No.387/2016 2025:CGHC:42444 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 387 of 2016 Ankur Singh Thakur S/o Dharampal Singh Thakur Aged About 21 Years R/o Tripathi Colony, Pathalgaon, Police Station Pathalgaon, District Jashpur Chhattisgarh. , Chhattisgarh ... Appellant versus State of Chhattisgarh Through The Police Station Pathalgaon, District Jashpur Chhattisgarh. , Chhattisgarh ... Respondent For Appellant : Mr. Vinod Kumar Tekam, Advocate For Respondent/State : Ms. Isha Jajodiya, Panel Lawyer Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board 21.08.2025 This criminal appeal filed by the appellant 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 15/12/2015, passed by the learned Additional Sessions & Special Judge (under POCSO), Kunkuri District: Jashpur (C.G.) in Special Case No.18/2015, whereby the appellant/accused has been convicted for the offence and sentenced as under:- AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.08.26 14:44:53 +0530 2 CRA No.387/2016 Conviction Sentence Under Section 363 of the IPC R.I. for 7 years and fine of Rs.500/-, in default, additional S.I. for 30 days Under Section 342 of the IPC R.I. for 1 year Under Section 376 of the IPC R.I. for 10 years and fine of Rs.1000/-, in default, additional S.I. for 60 days Under Section 4 of the POCSO Act R.I. for 10 years and fine of Rs.1000/-, in default, additional S.I. for 60 days All the sentences were directed to run concurrently 1. Case of the prosecution, in brief, is that on 04.06.2013, complainant PW-6, father of the victim lodged a written complaint vide Ex.P-6 at Police Station Pathalgaon stating therein that his daughter/victim PW-7 used to visit the house of her friend Shreya Singh Thakur, and during that period, she became acquainted with the appellant. On 26.05.2013, the appellant sent a message to the victim on her mobile phone saying “I love you.” Subsequently, on 03.06.2013 when the wife of the complainant returned home from duty at about 3:30 p.m., she found that her daughter was not at home. She immediately informed the complainant over the phone. The complainant then returned from Kansabel at about 5:30 p.m. and searched in the neighborhood, but his daughter could not be found. On 04.06.2013 at about 8:00 3 CRA No.387/2016 p.m., the complainant along with his elder brother Gopal Prasad PW-8, went to the house of the appellant in search of his daughter, where they found the victim inside the house with the appellant. Thereafter, the complainant brought his daughter home and in the presence of his elder brother Gopal Prasad, his nephew Yogesh, and his wife, questioned her. The victim disclosed that the appellant had enticed her to go his house on 03.06.2013 at noon, kept her inside, and during the night, forcibly committed rape upon her three times. Thereafter, FIR vide Ex.P-7 was registered against the appellant. Panchnama was prepared vide Ex.P-4 and Spot map was prepared vide Ex.P-10. The appellant was arrested vide Ex.P-15 and after due investigation, final report was filed. 2. The trial court has framed charges against the appellant for the aforementioned offence and the appellant abjured his guilt and pleaded innocence. 3. In order to establish the charge against the appellant, the prosecution examined as many as 12 witnesses and exhibited 18 documents. The statement of the appellant under Section 313 of Cr.P.C. was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of 4 CRA No.387/2016 the judgment. Hence, this appeal. 4. Learned counsel for the appellant would submit that the trial Court has not properly appreciated the overall evidence available on record for holding the appellant guilty. He submits that as per medical report, the victim was habitual to sexual intercourse and there was no injury or sign found over the internal or external part of the body of victim, therefore, the victim was a consenting party. Medical report has not supported the case of prosecution. He would further submit that the learned trial Court erred in convicting the appellant on the basis of conjecture and surmises. The other prosecution witnesses does not inspire confidence and not reliable. The finding given by the learned trial Court against the appellant is perverse and contrary to evidence on record. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 5. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellant and submits that the prosecution has proved its case beyond reasonable doubt the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for. 6. I have heard the learned counsel for the parties and perused the record with utmost circumspection. 5 CRA No.387/2016 7. The first question arises for consideration in the present appeal is whether the age of victim was below 18 years at the time of incident. 8. Mallika Banerjee (PW-10), Investigating Officer, Sub-Inspector stated in her evidence that a copy of the birth certificate (Article A- 1) seized from the father of the victim , in which, the date of birth of the victim is recorded as 31.05.1999. The father of the prosecutrix,(PW-6), as well as the victim herself (PW-7) have both stated that her date of birth is 31.05.1999. This fact has not been denied or disputed on behalf of the appellant. Accordingly, the birth certificate of the prosecutrix (Article A-1), showing her date of birth as 31.05.1999, is found to be reliable and is accepted as proof that the prosecutrix was born on 31.05.1999 and on the date of incident is 03.06.2013, the victim was a minor which is below 18 years. 9. PW-7, victim stated in her evidence that on 03.06.2013, at about 12:00 noon, she was at home while her parents had gone to duty. At that time, her younger brother Upendra Pratap Patel was with her. Someone knocked on the door, and when her brother went to open it, she also went near the door. That person asked about the uncle who lived next to their house, to which they replied that they had no knowledge. At that moment, the appellant was standing a little distance away near their house and signaled her to come. She then went near him. The appellant told her that he had to 6 CRA No.387/2016 bring some items and asked her to accompany him. She sat on the scooty of accused scooter and went to his house. At that time, no one else was present in his house. There, the appellant committed sexual intercourse with her twice. When she objected, the appellant did not stop and struck her mouth with his hand. On the same day, in the evening at about 7:00 p.m., the appellant took her to another house situated next to his house, where again no one was present, and there the appellant again committed rape with her. The appellant detained her whole night and in the morning at about 4:00 a.m., the appellant took her back to his house and stayed whole day in his house. She further stated that before her father arrived, the appellant once again committed rape upon her. Later, at about 8:00 p.m., her father and elder uncle Gopal Prasad Patel came to the house of the appellant and she came home along with her father and Uncle. 10.PW-3, Dr. Shakuntala Nikunj, who has conducted the medical examination of victim and submitted a report, in which, she found following injuries: External Examination: The height of the victim was 62 inches, weight 45 kilograms. The total number of teeth was 28, and the secondary sexual characteristics were found to be developing. Internal Examination: In the genital region of the victim, a dried, whitish discharge resembling semen was present. The hymen of the victim was 7 CRA No.387/2016 found to be old and torn, and two fingers could be easily inserted. Two vaginal slides were prepared and sealed for chemical examination and handed over to the lady constable. 11.PW-6, father of the victim stated in his evidence that on the date of incident, some person came to their house and knocked on the door. His son opened the door, and his daughter also came near the door. That person asked both children about the school teacher who lived next to their house. Both children replied that they did not know. His daughter/victim further told him that at that very moment, the appellant was standing in front of their house and signaled her to come. Thereafter, she went to the appellant, who then lured her, made her sit on his scooty and took her to his house. When his wife returned home from duty at about 3:30 p.m., her daughter was not at home. He then returned from Kansabel at about 5:30 p.m. and tried to search for the victim but could not trace her. He then informed his elder brother Gopal Prasad on phone and on 04.06.2013, both of them went on a motorcycle to search for the victim, and while searching, they reached the house of the appellant, where they found the victim with the appellant. On seeing them, she came outside and returned her home. On being questioned, she narrated the entire incident, stating that the appellant, after consuming liquor at night, had committed raped her three times. 8 CRA No.387/2016 12. In the FSL report, human sperm and stains were found on the slide and undergarments of the victim. 13. The Supreme Court in the matter of Rai Sandeep alias Deenu v. State (NCT of Delhi), 2012 (8) SCC 21 held as under:- 14. “22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber 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 everyone 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 9 CRA No.387/2016 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 similar such tests to be applied, it can 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 recise, 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.” 15. Also, the Supreme Court in the matter of State of Maharashtra vs Chandraprakash Kewal Chand Jain, 1990 SCC 550 held as under:- “A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is 10 CRA No.387/2016 necessary is that the Court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or practice incorporated in the Indian Evidence Act, 1872 (in short ‘Evidence Act’) similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.” 16. In the matter of Alakh Alok Srivastava v. Union of India & Ors., (2018) 17 SCC 291, in paras 14 and 20, it is observed as under: “14. At the very outset, it has to be stated with authority that the Pocso Act is a gender legislation. This Act has been divided into various chapters and parts therein. Chapter II of the Act titled “Sexual 11 CRA No.387/2016 Offences Against Children” is segregated into five parts. Part A of the said Chapter contains two sections, namely, Section 3 and Section 4. Section 3 defines the offence of “Penetrative Sexual Assault” whereas Section 4 lays down the punishment for the said offence. Likewise, Part B of the said Chapter titled “Aggravated Penetrative Sexual Assault and Punishment therefor” contains two sections, namely, Section 5 and Section 6. The various subsections of Section 5 copiously deal with various situations, circumstances and categories of persons where the offence of penetrative sexual assault would take the character of the offence of aggravated penetrative sexual assault. Section 5(k), in particular, while laying emphasis on the mental stability of a child stipulates that where an offender commits penetrative sexual assault on a child, by taking advantage of the child's mental or physical disability, it shall amount to an offence of aggravated penetrative sexual assault.” “20. Speaking about the child, a three Judge Bench in M.C. Mehta v. State of T.N. (1996) 6 SCC 756 “1. … “child is the father of man”. To enable fathering of a valiant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned.” 17. The Supreme Court in the matter of Nawabuddin v. State of Uttarakhand (CRIMINAL APPEAL No.144 of 2022), decided on 8.2.2022 has held as under:- 12 CRA No.387/2016 “10. Keeping in mind the aforesaid objects and to achieve what has been provided under Article 15 and 39 of the Constitution to protect children from the offences of sexual assault, sexual harassment, the POCSO Act, 2012 has been enacted. Any act of sexual assault or sexual harassment to the children should be viewed very seriously and all such offences of sexual assault, sexual harassment on the children have to be dealt with in a stringent manner and no leniency should be shown to a person who has committed the offence under the POCSO Act. By awarding a suitable punishment commensurate with the act of sexual assault, sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children for pornographic purposes they shall be punished suitably and no leniency shall be shown to them. Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure. 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. 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 v. 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 13 CRA No.387/2016 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 under the POCSO Act, 2012 and particularly when the same is proved by adequate evidence before a court of law.” 18. The Supreme court in the matter of State of UP v. Sonu Kushwaha, (2023) 7 SCC 475 has held as under : “12. The POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8 and 10 of the POCSO Act for various categories of sexual assaults on children. Hence, Section 6,on its plain language, leaves no discretion to the Court and there is no option but to impose the minimum sentence as done by the Trial Court. When a penal provision uses the phraseology “shall not be less than….”, the Courts cannot do offence to the Section and impose a lesser sentence. The Courts are powerless to do that unless there is a specific statutory provision enabling the Court to impose a lesser sentence. However, we find no such provision in the POCSO Act. Therefore, notwithstanding the fact that the respondent may have moved ahead in life after undergoing the sentence as modified by the High Court, there is no question of showing any leniency to him. Apart from the fact that the law provides for a minimum sentence, the crime committed by the respondent is very gruesome which calls for very stringent punishment. The impact of the obnoxious act on the mind of the victim/child will be lifelong. The impact is bound to adversely affect the healthy growth of the victim. There is no dispute that the age of the victim was less than twelve years at the 14 CRA No.387/2016 time of the incident. Therefore, we have no option but to set aside the impugned judgment of the High Court and restore the judgment of the Trial Court.” 19. Reverting to the facts of the present case in light of above principles of law laid down by their Lordships of the Supreme Court, it is quite vivid from the statement of victim (PW-7) that when she was at home along with her younger brother, someone knocked on the door and when her brother went to open the door, a person asked about the uncle who lived next to their house, to which, they replied that they had no knowledge. At that moment, the appellant was standing a little distance away near their house and signaled her to come and when the victim went near the appellant, he told her that he had to bring some items and asked her to accompany him and then the appellant, by deceitful inducement, lured the victim and took her to his house and committed sexual intercourse with her twice. 20. In the result, taking into consideration the evidence of victim (PW- 7), evidence of birth certificate, evidence of PW-6 father of victim and medical examination of victim, I am of the considered opinion that the appellant had kidnapped the victim from the legal guardianship of victim without their consent and kept the victim in wrongful confinement and had committed sexual intercourse with the victim. Thus, the trial Court has rightly convicted the appellant for the aforesaid offence. The conviction and sentence as awarded by the trial court to the appellant is hereby upheld. 15 CRA No.387/2016 21. The present criminal appeal sans merit and is accordingly dismissed. 22. The conviction and sentence imposed by the trial Court the appellant is hereby maintained. He is reported to be on bail. His bail bond is cancelled and sureties discharged. He shall surrender forthwith before the concerned trial Court forthwith serving remaining sentence as awarded by the trial Court, failing which he shall be taken into custody by the trial Court. 23. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing the 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/- (Bibhu Datta Guru) Judge Gowri/Amardeep