1 2026:CGHC:5240-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1687 of 2023 1 - Ashish Bhujade S/o Deendayal Bhujade Aged About 27 Years At - Gondiya, Maharashtra, Present Address - Opposite Street Of Budhatalab, P.S. Kotwali, District - Raipur (C.G.) ... Appellant(s) versus 1 - State Of Chhattisgarh Through Sho P.S. Kotwali, Raipur (C.G.) ... Respondent(s) For Appellant(s) : Mr. Virendra Kashyap, Advocate. For Respondent/State : Mr. Shailendra Sharma, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice. 30/01/2026 1. The challenge in this appeal is the judgment of conviction and sentence dated 21.07.2023 passed by the learned Additional Sessions Judge, First Fast Track Special Court (POCSO) Raipur, ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2026.02.03 10:59:09 +0530 2 in Special Criminal Case (POCSO) No. 52/2021, whereby the appellant has been convicted and sentenced as below:- Conviction Sentence Section 377 and 376AB of IPC No Separate sentence has been awarded. Section 6 of Protection of Children from Sexual Offences Act, 2012. Life Imprisonment till the reminder of the accused natural life with a fine of Rs. 2000/-, in default of payment of fine 04 month additional RI 2. The brief facts of the case are that on 14.02.2021 the father of the victim lodged a written report Ex.P/4 against the accused with the allegation that at about 09:40 pm, his daughter was playing in Budha Garden and he was outside of the garden at the same time his wife called him through mobile phone inside the garden and informed the incident that her daughter informed her that the accused inserted his private part into her mouth forcefully the accused caught-hold on the spot and he disclosed his name. The police were also called to Budha Talab, and a report has been lodged. On the written complaint of the complainant, the FIR Ex.P/5 was registered against the accused for the offence under Section 376-AB of the IPC and Section 4 and 5 of the Protection of Children from Sexual Offences Act (in short 'POCSO Act'). The victim was sent for her medical examination to District Hospital, Raipur where she was medically examined by PW-6 Dr. Veena Patel, who found no injuries on the body of the victim and gave 3 her report Ex.P/15. Spot Map Ex.P/6 was prepared by the Police and Ex.P/17 was prepared by the Patwari. With respect to the age of the victim, the Police has seized the progress report card, and a copy of the birth certificate vide seizure memo Ex.P/7. In the progress report card and copy of the birth certificate of the victim, her date of birth is recorded as 29.04.2015. The school register Ex.P/10-C was also seized by the police from the school of the victim vide seizure memo Ex.P/12. The appellant was arrested on 15.02.2021 and he was also sent for his medical examination to District Hospital, Raipur where he was medically examined by Dr Ashutosh Gupta PW-5 who found no injury on the body of the accused and gave his report Ex.P/13. The underwear of the accused were sent for its chemical examination to FSL Raipur, from where report Ex.P/29 was received and semen and sperms were found on his underwear. Statement under Section 164 of the Cr.P.C. of the victim has been recorded, statement of the witnesses under Section 161 of the Cr.P.C. have also been recorded and after completion of the usual investigation charge- sheet was filed before the learned trial Court for the offence under Section 376-AB of the IPC and Section 6 of POCSO Act. 3. On 27.07.2021, when the charges under Section 376AB of IPC and Section 6 of the POCSO Act were framed, read out and explained to the accused, he denied the charges and claimed trial. To prove the charges against the accused, the prosecution 4 recorded evidence of a total of 09 prosecution witnesses and marked a total of 29 documents as exhibits. 4. When the statement of the accused was taken under Section 313 of the Code of Criminal Procedure, he denied the allegation that appears against him pleaded innocence and submitted that on the date of incident the mother of the victim was talking with him which was seen by her husband and raised quarrel with her and for this reason the accused has been falsely implicated in the offence. 5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 21.07.2023, finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant as mentioned in the opening paragraph, against which, this appeal has been filed. 6. Mr. Virendra Kashyap, learned counsel for the appellant submits that the allegations levelled against the appellant are false and baseless and it is a case of false implication. He further submits that the appellant, while used to talk to the mother of the victim regularly, was not liked by her husband. On the date of the incident also. When he was talking with the mother of the victim in the garden, they were seen by the father of the victim and he raised a quarrel with him. Thereafter, lodged a false report for the rape of his minor daughter. There are material omissions and contradictions in the evidence of the prosecution witnesses, and the prosecution has failed to prove its case beyond reasonable 5 doubt. There is no injury found on the body of the victim and the victim is a futured witnesses and her evidence cannot be relied upon to convict him in the alleged offence. Therefore, the appeal may be allowed and the appellant may be acquitted. 7. On the other hand, Mr. Shailendra Sharma, learned Panel Lawyer, appearing for the State/respondent opposes the aforesaid submission and submits that the appellant has committed a heinous crime of rape against a minor girl aged about 06 years and in her statement under Section 164 CrPC as well as in Court statement, the victim has specifically stated that the appellant has committed the offence, forcibly inserted his penis into her mouth. There is no reason for her false implication, and the defence could not extract anything from her evidence that she is a tutored witness. The defence taken by the appellant is denied by her mother, PW-2. He further submits that the victim was less than 12 years of age on the date of the incident, and she was subjected to the aggravated penetrative sexual assault. As such, the trial Court has rightly convicted the appellant and his conviction is well- founded and well supported by the evidence and his appeal is liable to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 6 9. The first question for consideration before this Court would be, whether the trial Court is rightly held that on the date of incident, the victim was minor? 10. When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredients to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the "child" which means any person below the age of eighteen years. 11. In the matter of Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263, the Hon’ble Supreme Court laid down the guiding principles for determining the age of a child, which read as follows: “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 7 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 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 8 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, 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. 9 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.” 12. In the present case, in order to prove the fact that the victim was a minor girl below 12 years of age on the date of the incident, thel. prosecution has recorded the statement of Investigating Officer/Sub-Inspector P. R. Suryawanshi (PW-09) of Police Station City Kotwall, Raipur, who in para -9 of his examination-in-chief has stated that on 15.02.2021, he seized the progress report card of Class-PP-1and copy of the birth certificate of the victim vide seizure memo Ex. P/7. In para-14 of his examination-in-chief, he stated that he seized the school register from the school with respect to the date of birth of the victim on 09.03.2021 vide seizure memo Ex.P/12. The school register was proved by PW-4, the teacher of the school and proved the document Ex.P/10. In the documents, the date of birth of the victim is recorded as 29.04.2015. 13. Out of the witnesses examined by the prosecution to establish the victim's age, the victim (PW-1) stated her age as 6 years on the date of recording her statement l.e. on 07.10.2021. The victim's mother (PW-2), who is the best witness regarding the victim's age, stated in paragraph 1 of her examination-in-chief that her 10 daughter/victim's date of birth was likely 15.04.2015, and that the victim's current age was approximately 6 years. The oral evidence of the victim's mother and the victim regarding her age as 6 years remained unrebutted during cross-examination. Furthermore, the trial Court initiated evidence after examining the victim's competency based on her age being less than 12 years. The defense has also not made any such suggestion to the prosecution witnesses that the age of the victim was more than 12 years on the date of incident, therefore, there is no reason to disbelieve the date of birth of the victim, as 15.04.2015 hence, the trial Court has rightly held that the date of birth of the victim is 15.04.2015 and on the date of incident, she was minor below the age of 12 years. 14. The next question for consideration before us is whether the appellant has committed rape on minor victim? 15. In any rape case, the victim herself is the key witness in the prosecution's case, as the alleged crime is committed against her, and other witnesses are corroborative or formal witnesses. It is also noteworthy that the victim is an innocent girl of approximately 06 years of age. Therefore, in such a situation, a meticulous examination of the victim's statements, all evidence and documents, and the circumstances of the case are essential to reach a reasonable conclusion. 16. The victim of the case (PW-01) being an innocent girl of about 06 years of age, is an innocent child witness of less than 12 years of 11 age, therefore, firstly, in relation to the thoughtful answering of the victim (PW-01), the trial Court asked some general questions to the child witness-victim in the presence of the accused and his lawyer, in the presence of her legal guardian mother, which the victim was found to have answered after understanding, and the evidence of the said child witness was recorded in the presence of both the parties in camera proceedings without administering oath to the victim. While recording the evidence of the said child witness, the accused was kept behind the curtain, and the victim was not shown in front of the prosecution during the evidence. The victim, being a child witness of minor age was found to be a competent witness by the trial Court, and she was examined and cross-examined before the Court itself. 17. The victim (PW-01) has stated in paragraph 1 of her examination that she knows the accused, on the date of the incident, she had gone to the garden and when she was playing. the accused inserted his penis into her mouth forcefully. Her mother was sitting near the sliding floor. She informed her mother about the incident and her mother scolded him. Her father was being called and slapped the accused. In cross-examination, she firmly denied the suggestion of the defence that the accused had not committed any offence and stuck in saying that the appellant had inserted his penis into her mouth forcefully. The accused was caught-hold on the spot. She also firmly denied that she stated on the instance of her mother or that she is a tutored witness. Nothing in her 12 evidence which makes it doubtful. Thus, the victim's evidence regarding the incident is sufficient to hold the conviction of the appellant for the alleged offence. 18. The mother of the victim (PW-02) has stated in paragraph 1 of her examination-in-chief that she knows the accused after the incident. On the date of the incident, her daughter was playing in sliding slope, and she was sitting nearby. At that time, her daughter informed her about the incident in which the accused inserted his penis on her mouth. She showed the accused that he committed the offence who was standing near the sliding slope. She called her husband and then the accused was caught on the spot, and he was taken to the police station. In cross-examination, the defence has given suggestion that she knew the accused prior to the date of the incident, as they visited the relative of the accused and she regularly talk with him, which was not liking by her husband but she denied all these suggestions. Nothing substantial could be extracted by the defence from her evidence, also to disbelieve her evidence that the accused has not committed any offence. Her evidence is duly corroborated the evidence for the victim PW-1. 19. PW-3, is the father of the victim has also supported the prosecution's case and stated in her evidence that on the date of the incident, he along with his wife and daughter had gone to the garden. They were inside the garden and he came outside of the garden to drink tea. When he was drinking tea, his wife called him 13 and when he went inside the garden his wife informed him about the incident, and then he slapped the accused twice. The other persons were also gathered and they caught-hold the accused and took him to the police station. He too, has firm in his cross- examination that the appellant has committed the offence. 20. Thus, the victim (PW-01) and the victim's mother (PW-02) and victim's father (PW-3) in their respective Court testimonies have alleged rape and aggravated penetrative sexual assault by the accused by inserting his penis into the mouth of the victim. 21. The victim was sent for her medical examination, who has been medically examined by PW-6 Dr. Veena Patel, who found no injuries on the body of the victim. Since there is no vaginal intercourse, and the accused committed the offence of inserting his penis into the mouth of the victim, the absence of injuries on the body of the victim is quite natural and it does not affect the prosecution's case. 22. The prosecution has also produced the Forensic Science Laboratory report (Ex.P-29) in the case. A perusal of the said FSL report Ex.P- 29 shows that Article-A (accused's underwear) were sent to the Forensic Science Laboratory for testing. After testing, semen stains and human sperm were found in Article-A (accused's underwear). 23. Although the defence argues that prior to the incident, he had regular talk with the mother of the victim and on the date of incident, also when he was talking with her mother, it was seen by 14 her father, who was not like their talk but the witnesses have denied the said suggestion given by the defence. The prosecution has firmly and beyond reasonable doubt proved the allegation against the appellant that on the date of the incident he committed the offence of rape and aggravated penetrative sexual assault upon the victim who is 6 year old minor girl. 24. In the present case, as per the provisions of Section 29 read with Section 30 of the POCSO Act, the Court is legally empowered to presume the commission of certain offences against the accused and to presume the existence of a culpable mental state in respect of the offence defined under Section 5 of the POCSO Act. In this case, the accused was given sufficient opportunity by the Court to present his defence evidence. The evidence of prosecution witnesses duly established that the accused committed the offence with a criminal mental state. 25. Thus, from the analysis of the facts, circumstances, documents and sworn evidence of the case, it is clear that the prosecution has been able to prove beyond a reasonable doubt the charges under Section 376 AB of the IPC and Section 6 of the POCSO Act against the accused. But, since punishment under Section 376AB of the IPC is similar degree as the punishment under Section 6 of the POCSO Act, in view of the provisions of Section 42 of the POCSO Act, the learned trial Court has sentenced the appellant only for the offence under Section 6 of the POCSO Act. 15 26. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond a 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. 27. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 28. The appellant is reported to be in jail since 15.02.2021. He shall serve the entire sentence awarded by the learned trial Court vide its judgment dated 21.07.2023. 29. 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. 30. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok