1 2026:CGHC:5209-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 42 of 2022 Kamalnarayan Nirmalkar @ Kamal S/o Shri Ramji Nirmalkar, Aged About 24 Years Residence Of Village - Bharkapara, Teligundara, Police Station Ranitarai, District – Durg, Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh, Through, Police Station Ranitarai, District – Durg, Chhattisgarh. ... Respondent(s) For Appellant(s) : Mr. S.C. Verma, Sr. Adv along with Mr. Manharan Lal Sahu and Ms. Katyayni Vishu Priya, Advocates For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, CJ 30.01.2026 1. This appeal arises out of the judgment of conviction and order of sentence dated 29.10.2021 passed by the leaned Upper Sessions Judge, First (4th F.T.C.), Special Court Durg, District- Durg (C.G.). MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2026.01.31 17:35:08 +0530 2 in Special Sessions Case (POCSO) No. 57/2019, whereby the appellant has been convicted as under: Conviction Sentence Under Section 376(A) (B) of the IPC. Life imprisonment till natural death and fine of Rs.5000/-, in default of payment of fine amount, additional S.I. for 2 months. Under Section 506(ब) of the IPC. Rigorous imprisonment for one year and fine of Rs.500/-, in default of payment of fine amount, additional S.I. for 01 months. Both the sentences were directed to run concurrently 2. The prosecution case, in brief, is that the victim (PW-1) is a minor child, studying in Class I and residing with her parents at Village Teligundra. On 24.03.2019, while she was present at her house, her neighbour and friend Laxmi called her to play. Thereafter, both the children went to the house of Paras Patel, where Paras, his brother Kailash, and the accused Kamalnarayan were present. It is alleged that while the victim was playing outside the house with Laxmi and Kailash, the accused called her inside the house on the pretext of offering bread. When the victim went inside, the accused allegedly took her into a room, bolted the door from inside, gagged her mouth, removed her clothes, and committed sexual assault upon her. It is further alleged that the accused threatened the victim with dire consequences if she disclosed the incident to anyone. After the incident, the victim allegedly came 3 out of the room crying, informed her friend Laxmi, and returned to her house. Due to fear, she did not immediately disclose the incident and narrated the same to her mother (PW-2) on 27.03.2019. On 28.03.2019 at about 10:30a.m., the mother of the victim lodged a written report at Police Station Ranitarai, which was registered as First Information Report (Ex.P-04) by Inspector L.P. Jaiswal. During the course of investigation, the spot map (Ex.P-05) was prepared, statements of witnesses were recorded, and the undergarments of the victim were seized as per seizure memo. The victim was sent for medical examination to the Community Health Centre, Patan. The accused was arrested vide arrest memo (Ex.P-17) and was also medically examined at the Community Health Centre, Ranitarai. His undergarments were seized vide seizure memo (Ex.P-15), and sealed medical exhibits were seized vide Ex.P-18. 3. For the purpose of determination of age of the victim, a requisition was sent to the Headmaster of Government Primary School, Teligundra, and the relevant school record was seized vide Ex.P- 12. The Aadhaar card and birth certificate of the victim were also seized vide Ex.P-07. After completion of investigation, charge- sheet was filed before the Court of Fifth Additional Sessions Judge (FTC), Durg, and the case was thereafter transferred to the designated POCSO Court on 05.03.2020 for trial. 4 4. In order to establish the charge against the appellant, the prosecution examined as many as 13 witnesses and exhibited the documents (Exs.P-1 to P-19). The statement of the appellant under Section 313 of CrPC 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 opening para of the judgment. Hence, this appeal. 5. Learned Senior Advocate appearing for the appellant submits that the impugned judgment, conviction and sentence dated 29.10.2021 awarded by the Trial Court is bad in law, perverse, thus liable to be set aside. He further submits that the impugned judgment of conviction and sentence is illegal, perverse, and unsustainable in the eyes of law, as the learned trial Court has convicted the appellant without there being any cogent, reliable, or legally admissible evidence on record. It is contended that there is no direct evidence connecting the present appellant with the alleged offence and the conviction has been recorded merely on conjectures and surmises, drawing inferences from the nature of allegations without substantive proof. The prosecution has miserably failed to establish the essential and material ingredients of the alleged offence under Section 376 of the Indian Penal Code, and in absence thereof, the conviction could not have been sustained. It is further submitted that the medical evidence does 5 not support the prosecution case inasmuch as the medical examination of the prosecutrix revealed no internal or external injuries on her person and the medical officer did not render any definite opinion with regard to sexual assault or the age of the prosecutrix. The learned trial Court, while recording conviction, has ignored these vital infirmities and material contradictions. Furthermore, there are several material contradictions, omissions, and inconsistencies in the statements of the prosecution witnesses, which go to the root of the case and seriously affect the credibility of the prosecution version, yet the same have been completely overlooked. It is lastly contended that the learned trial Court failed to extend the benefit of doubt to the appellant, despite glaring lacunae in the prosecution case, thereby committing a grave error of law and fact, and hence, the impugned judgment of conviction and sentence deserves to be set aside. Learned counsel for the appellant also relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Dinesh Kumar Jaldhari Vs. State of Chhattisgarh, reported in 2025 SCC OnLine SC 2439 and in the matter of Laxman Jangde Vs. State of Chhattisgarh Through the Station House Officer arising out of SLP (Crl.) No. 10377 of 2025. 6. 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 and the victim (PW-1) has clearly deposed the 6 conduct of the appellant in her statement recorded under Section 164 CrPC and in the Court statement and 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. 7. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 8. The issue that arises for consideration in the present appeal is whether the testimony of the victim/prosecutrix deserves acceptance and whether the prosecution has established the case of the appellant beyond reasonable doubt. 9. It is pertinent to observe that the question whether conviction of the accused can be based on the sole testimony of the victim in cases of sexual assault/rape is no longer res integra. The Hon’ble Supreme Court has dealt with the issue in a catena of judgments and has held that the sole testimony of the prosecutrix if found reliable can be the sole ground for convicting the accused and that the creditworthy testimony of the victim in cases of such nature deserves acceptance. 10. The next issue that arises for consideration in the present appeal is whether the age of the victim on the date of commission of the offence concerned, was below 12 years of age. 7 11. Regarding the age of the victim, the victim (PW-1), in her examination-in-chief, has categorically stated that at the time of the incident she was about 7 years of age and was studying in Class II. Her mother (PW-2), who is a natural guardian and the best possible witness on the question of age, has specifically deposed that the date of birth of the victim is 14.06.2012 and that she was studying in Class II at the relevant time. PW-2 further stated that the Aadhaar card and photocopy of the birth certificate of the victim were produced before the police and seized vide seizure memo Ex.P-7. The testimony of PW-1 and PW-2 on the aspect of age has remained unchallenged and unimpeached during cross-examination. 12. Further corroboration is found from the evidence of Headmaster Daneshvar Kumar Verma (PW-6), who deposed that upon requisition by Police Station Ranitarai, he produced the Dakhil Kharij (Mutation) Register, which was seized vide Ex.P-12. The certified copy of the said register is Ex.P-13C. As per serial number 2734 of the register, the date of birth of the victim is recorded as 14.06.2012. Though in cross-examination the witness admitted that the date of birth was entered on the basis of documents furnished by the parents of the victim, he clarified that the entry was made on the basis of the birth certificate produced before the school at the time of admission. Notably, the defence has neither disputed the genuineness of Ex.P-13C nor led any 8 evidence to establish that the said entry is false, fabricated, or incorrect. 13. Apart from documentary evidence, the prosecution has also examined Radiologist Dr. S.K. Sahu (PW-12), who conducted the radiological examination of the victim and issued report Ex.P-1. According to his opinion, the age of the victim at the time of examination was between 10 and 12 years. His testimony has also remained unshaken in cross-examination and lends further assurance to the prosecution case regarding minority of the victim. 14. Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides the statutory mechanism for age determination, wherein primacy is to be given to the date of birth certificate from the school or the birth certificate issued by the competent authority, and medical opinion is to be resorted to only in the absence of such documents. In the present case, the prosecution has produced reliable school records in the form of Ex.P-13C, prepared in the normal course of official duty, which is also relevant under Section 35 of the Indian Evidence Act. There being no credible challenge to the said document by the defence, the same inspires full confidence. 15. From the aforesaid evidence, it stands conclusively established that the date of birth of the victim is 14.06.2012. Consequently, on the date of the incident i.e. 24.03.2019, the victim was aged about 9 6 years, 9 months, and 10 days, and was thus below 12 years as well as below 18 years of age. Therefore, the victim was clearly a “child” within the meaning of Section 2(d) of the POCSO Act, and the provisions of the said Act are fully attracted in the present case. 16. The next question for consideration is whether the accused, on the date and place of incident, committed aggravated penetrative sexual assault upon the minor victim (PW-01) and, in the course thereof, criminally intimidated her by threatening to kill her? 17. The most important witness in the incident, the victim (PW1), stated in her examination-in-chief that she knew the accused. Her evidence is that on the date of the incident, her friend Lakshmi called her to play and took her to the house of her brothers, Paras and Kailash, where the accused was sitting with his mobile phone, and Paras was watching TV. At the time of the incident, she, her friend Lakshmi, and Kailash were playing outside the house when the accused called her and Lakshmi inside to eat some bread. She and Lakshmi went inside, and after a while, Lakshmi also left the house. The accused then took her by the hand into the room, closed the door, made her lie down on the floor, removed his jeans and underwear, and also removed her leggings and underwear. He then committed indecent acts with her. 18. She left the room crying, told her friend Lakshmi about the incident, and then ran home. She also testified that she did not 10 immediately report the incident to her family due to fear, but told her mother about it three days later. She underwent a medical examination. Her statement before the magistrate was recorded as Ex.P.2. 19. Eyewitnesses to the incident, the victim’s friend Lakshmi (PW-4) and Paras Patel (PW-5), at whose house the victim had gone to play, also corroborated the evidence of the victim (PW-1), stating that on the date of the incident, the accused dragged the victim inside the house and closed the door. After a short while, the victim opened the door while dressing herself, and ran away to her home. These witnesses also testified that while returning home, the victim (PW-1) told them that the accused had sexually assaulted her. This evidence was also completely irrefutable during cross-examination. The evidence of these witnesses is relevant under Sections 156 and 157 of the Cr.P.C., as it corroborates the incident. It has also been shown from the evidence available in the case that the accused gave roti to the said witness Lakshmi (PW-4) and the victim (PW-1) to eat, which both of them threw away. continued. After some time, the victim (PW-1) opened the door while dressing, and both of them ran away. This witness has confirmed the incident. 20. Another eyewitness to the incident, Paras (PW-5), corroborated the above evidence, stating that he was watching television when the accused took the victim (PW-1) and Laxmi (PW-4) to eat 11 bread. Afterward, Laxmi (PW-4) and the victim (PW-1) came to his house, and the accused followed them, took the victim inside and locked the door. She cried out, but the accused had locked the door from inside and kept the key. The victim was crying. Then, as Laxmi (PW-4) and the victim began to leave, she told him that the accused had done something dirty to her. She also testified that when she asked the accused to open the door, he threatened her, saying, if she opens the door, he will cur her. The said witness is also an eyewitness and there is no reason on record to disbelieve this witness. Thus, the evidence of the victim (PW-1) is considered inadmissible. This is also corroborated by the evidence of eyewitnesses Laxmi (PW- 4) and Paras Patel (PW-5). 21. The mother of the prosecutrix (PW-2) also gave her statement corroborating the evidence of the daughter/victim (PW-1), it has been stated that the incident occurred on March 24, 2019. After the incident, the victim (PW-1) was very frightened and was experiencing body pain. Her grandfather, Netram Patel, brought her medicine. When he returned in the evening, the victim complained of severe headaches. He then administered the remaining medicine to her, and her elder brother, Netram Patel, was discharged. The boy, Nemish Patel, said that something had happened to the victim. The victim (PW1) would not tell him anything even when asked, as she was very frightened. 12 22. But on the fourth day of the incident, she told that on 24.03.2019, at 2-3 pm, when she was playing outside Paras's house, the accused caught her hand and took her into the room and after removing her panties/leggings, forcibly did dirty work with her, that is, put his genitals in the bathroom, then she started crying and while crying, opened the door, came out and came home. 23. Subsequently, she filed a FIR (Ex.P-4) regarding the incident. The witness's evidence was also completely irrefutable during cross- examination. Although she was not present at the scene, her evidence is relevant under Sections 156 and 157 of the Criminal Procedure Code (CrPC) as it corroborates the incident. Furthermore, the witness's evidence is also relevant under Section 157 of the Criminal Procedure Code (CrPC) because, immediately after the incident, the victim (PW-1) ran to her home but, out of fear, told the witness about the incident on the fourth day. She then went to Ranitarai Police Station with her daughter/victim to file a report on the same date. There is no reason on record to disbelieve this witness's evidence. 24. Mamta Nirmalkar (PW-7) stated in his evidence that the mother of the prosecutrix (PW-2) had come to his house and told him that the accused had attempted to rape her daughter. She had advised her to report the matter to the police station and he had also informed the Ranitarai police station. She came and questioned the victim and her mother. It is noteworthy that, at the 13 suggestion of the defense, the witness admitted in paragraph 2 of his cross-examination that the victim and her mother had told him that the accused had attempted to rape her. Thus, this witness's evidence corroborates the evidence of the victim (PW1). 25. Thus, the evidence of the victim (PW-1), her mother (PW-2), eyewitnesses to the incident, Laxmi (PW-4) and Paras Patel (PW- 5), along with the independent witness in the case, Mamta Nirmalkar (PW-7), is clear on the point of physical relationship. 26. Now if the investigative evidence in this regard is considered, then it is revealed from the evidence of the investigating officer L.P. Jaiswal (PW-13) that during the investigation, on the production of the victim, he had seized the underwear worn by the victim as per seizure memo (Ex.P.05) and sent memo (Ex.P.10) to CHC Patan for getting the victim medically examined. Memo (Ex.P.16) was sent to CHC Ranitarai for getting the accused medically examined. On production of the accused, an underwear was seized in front of the witnesses as per seizure memo (Ex.P.15). When lady constable Tripti Verma brought it from the hospital and produced it, a sealed packet was seized in front of the witnesses as per seizure memo (Ex.P.18) and a draft was sent to the State Forensic Science Laboratory, Raipur through the Superintendent of Police, Durg for getting the seized properties chemically tested. 27. In the case, the medical witness Dr. Charni Singh (PW-3) has stated that after the incident, on 28.03.2019, the medical 14 examination of the victim (PW-1) was conducted as per Ex.P.10 and the result of the examination revealed that the hymen was not torn, but there was an abrasion of 1 cm x 0.2 mm on the right side of the labia minora, which was of normal nature and was more than 24 hours old. The facts remained unchallenged in the cross- examination, and the evidence of the victim (PW-1) is corroborated by the medical evidence. 28. Similarly, according to the FSL report dated 13/05/2019 received from the State Forensic Science Laboratory, Raipur (C.G.), semen stains and human sperm were found in the seized underwear article "A" of the victim (PW-1) and the seized underwear article "C" of the accused. 29. It is also noteworthy that penetrative sexual assault is defined as "penetrating the vagina, mouth, urethra, or anus of a child with one's penis to any extent." In such a situation, merely because the hymen of the victim was not torn or human sperm was not found in the slide made from her private parts, it cannot be said that the accused has not committed any crime against the victim under the said Act. Whereas, as per the FSL report, there were semen stains and presence of human sperm on the panties worn by the victim (PW-1) at the time of the incident and on the underwear of the accused, the above evidence is irrefutable and reliable evidence of the positive category. 15 30. The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of 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 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 16 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 precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 31. 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 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 17 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.” 32. 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 18 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 because a major victim 19 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.” 33. When considering the evidence of a victim subjected to a sexual offence, the Court does not necessarily demand an almost accurate account of the incident. Instead, the emphasis is on allowing the victim to provide her version based on her recollection of events, to the extent reasonably possible for her to recollect. If the Court deems such evidence credible and free from doubt, there is hardly any insistence on corroboration of that version. In State of H.P. v. Shree Kant Shekar (2004) 8 SCC 153 the Hon‟ble Supreme Court held as follows:“ “21. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. However, if the court on facts finds it difficult to accept 20 the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration, as understood in the context of an accomplice, would suffice.” 34. On these lines, the Hon’ble Supreme Court in Shivasharanappa and Others v. State of Karnataka, (2013) 5 SCC 705 observed as follows: “17. Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable.” 35. 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 21 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.” 36. On the basis of analysis of evidence presented by the prosecution, it is evident that at the time of the incident, the victim was only 06 years, 09 months and 10 days old girl and is a minor below 12 years of age. It is proved that the victim is a girl child and that the accused, knowing that the victim was a girl child below 12 years of age at the time of the incident, committed the crime of rape, forcible penetration, sexual assault and rape on the girl/victim below 12 years of age. Thus, the said crime of rape, 22 penetrative sexual assault on a minor girl below 12 years of age by the accused falls under the category of aggravated penetrative sexual assault. 37. Lastly, considering the statement of the victim (PW-1), her mother (PW-2), eyewitnesses to the incident, Laxmi (PW-4) and Paras Patel (PW-5), along with the independent witness in the case, Mamta Nirmalkar (PW-7), MLC report of the victim (Ex.P-1) and FSL report, the material available on record and the principle of law laid down by the Supreme Court in the above-stated judgments, we are of the considered opinion that the learned Special Judge has rightly convicted the appellant for offence under under Section 376(A)(B) of the IPC and Section 506 (ब) of the IPC. We do not find any illegality and irregularity in the findings recorded by the trial Court. 38. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentence as awarded by the trial court to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 39. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 40. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellant is 23 undergoing the jail term, 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/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Manpreet