1 CRA No.1180/2023 2025:CGHC:56289-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1180 of 2023 Amarlal Shrivas S/o Resham Lal Shrivas Aged About 23 Years Chote Mudapar Police Station Kharsiya District Raigarh Chhattisgarh ... Appellant versus State of Chhattisgarh Through District Magistrate Raigarh Chhattisgarh ... Respondent For Appellant : Mr. Nikhil Wadhwani, Advocate on behalf of Mr. Awadh Tripathi, Advocate For Respondent/State : Mr. Nitansh Jaiswal, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Bibhu Datta Guru, Judge 19.11.2025 This criminal appeal filed by the appellant under Section 374 of the Code of Criminal Procedure is directed against the impugned judgment of conviction and order of sentence dated 03/05/2023, passed by the learned Court of Fast Track Special Court, Raigarh, C.G. in Special POCSO Case No.15/2022, whereby the appellant/accused has been convicted for the offence and sentenced as under:- AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.11.20 18:16:49 +0530 2 CRA No.1180/2023 Conviction Sentence Under Section 6 of POCSO Act R.I. for 20 years and fine of Rs.5000/- with default stipulation Under Section 363 of IPC R.I. for 3 years and fine of Rs.500/- with default stipulation Under Section 366 of IPC R.I. for 5 years and fine of Rs.500/- with default stipulation All the sentences are directed to run concurrently 1. Facts of the case, in brief, is that the mother of victim lodged a written complaint at Kharsia Police Station, that on March 24, 2022, at 9:00 a.m. her 8-years-old daughter, a student of Class III, went to the school by road with her friends PW-5 and PW-6. After closing of school at 4:00 p.m., the victim and her friends were returning home from the fields behind the school. They had reached about 100 meters from the school, at that time, the appellant/accused told her that he would give her money and asked her to come with him. When the victim refused to go with him, the accused forcibly grabbed the victim's hand and dragged her about 100 meters towards the village drain, upon which her friends fled. The accused took the victim to the bottom of the village drain and forcibly committed oral sex (by putting his pennis in mouth) with her. At around 4.30 pm, when the victim did not return home, mother of victim started searching her and upon seeing her mother, the appellant fled away. Thereafter, FIR vide Ex.P-5 was registered against the appellant. During the 3 CRA No.1180/2023 investigation, spot map was prepared vide Ex.P-2. Medical examination of victim was conducted vide Ex.P-28. Appellant was arrested vide Ex.P-34. To ascertain the age of victim, copy of Dakhil-kharij register vide Ex.P-13/C was seized. After due investigation, charge-sheet 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 16 witnesses and exhibited 42 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, 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 the judgment. Hence, this appeal. 4. Learned counsel for the appellant submits that the trial Court has not properly appreciated the overall evidence available on record for holding the appellant guilty. Learned counsel submits that as per medical examination report, there is no external or internal injury on the body of the victim. He submits that there is previous dispute between the family members of the victim and the appellant, for which, the appellant has been implicated in the 4 CRA No.1180/2023 false case. In the FSL report, human sperm was not found in the vaginal slides, knickers and tunic of the victim. Learned counsel submits that the learned trial Court erred in convicting the appellant only on the basis of assumption and presumption. 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. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 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. PW-3, mother and PW-9, father of victim stated in their evidence that the age of her daughter is 12/01/2014. PW-4, Headmaster of the school where the victim was studying, stated in his evidence that in the dakhil-kharij register, the names of the victim and her parents are mentioned in the Sr. No.268 and also the date of birth 5 CRA No.1180/2023 of the victim is mentioned as 12/01/2014. Seizure copy of dakhil kharij register is Ex.P-13/C. Accordingly, in view of the evidence of Headmaster (PW-4) and on the basis of Dakhil Kharij register, it is proved that the age of victim at the time of incident was 8 years 2 months 12 days, which is less than 18 years. 9. Now the second question which arises for consideration is whether the alleged offence has been committed by the appellant or not? 10. Victim (PW-1) stated in her evidence that on the date of incident, when she was returning home from school at 4:00 PM along with her friends, the accused met them on the way. He gave her ₹10 and gave ₹20 each to her friends, and asked the victim to go with him. At that moment, her friends ran away from there. After that, the accused held her hand; took her towards the drain (nala); and committed oral sex with her. Thereafter, her mother came along with her grandparents near the drain while searching for her, then the accused ran away from there. 11. Mother of the victim (PW-3) stated in her evidence that she and her relatives had gone towards the drain. The accused was running away after leaving the victim there, and the victim was crying. Upon being asked, the victim told her that the accused had removed her clothes and committed oral sex with her. 12. The testimony of the victim (PW-1) is supported by her friends i.e. PW-5 and PW-6, who themselves are child witnesses. They 6 CRA No.1180/2023 stated that after closing of school at 4:00 PM, they along with victim were returning home. On the way, the accused met them and gave ₹20 and ₹10 each. They further stated that the appellant/accused then caught the victim’s hand and pulled her towards the drain (nala). Out of fear, they ran back home. 13. The Supreme Court in the matter of Rai Sandeep alias Deenu v. State (NCT of Delhi), 2012 (8) SCC 21 held as under:- “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 7 CRA No.1180/2023 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 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.” 14. 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 8 CRA No.1180/2023 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 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.” 15. 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: 9 CRA No.1180/2023 “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 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.” 10 CRA No.1180/2023 16. 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:- “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 11 CRA No.1180/2023 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 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.” 17. 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 12 CRA No.1180/2023 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 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.” 18. 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 that from the statement of victim (PW-1), that when she was returning from school with her friends PW-5 and PW-6, the appellant stopped them on the way and gave them money, thereafter, he asked the victim to come with him, due to 13 CRA No.1180/2023 which, friends of victim ran back towards home. Thereafter, the appellant caught hold the hands of victim and took her near the drain, and after removing the clothes, the committed oral sex with her. The said fact has been supported by PW-5 and PW-6, who are the friends of victim. From the statement of her mother PW-3, she stated that while searching her daughter near the drain, the accused saw them, left the victim and fled from the spot. Looking to the copy of dakhil-kharij register Ex.P-13/C, the age of victim was mentioned as 12/01/2014, which is below 18 years. In the FSL report, human sperm was found in the Article-D i.e. undergarment of appellant. 19. In the result, taking into consideration the evidence of victim (PW- 1), evidence of PW-3, mother of victim and the evidences of PW- 5 and PW-6, who are friends of victim, we are of the considered opinion that the appellant had committed oral sex with the victim, who was aged about 8 years at the time of incident. 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. 20. The present criminal appeal sans merit and is accordingly dismissed. 21. The appellant is stated to be in jail and he shall serve out the remaining period of jail sentence as awarded to him by the learned trial Court. Registry is directed to send a copy of this judgment to 14 CRA No.1180/2023 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. 22. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance. SD/- SD/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Gowri/Amardeep