1 2026:CGHC:4343-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1591 of 2022 Golu @ Nand Kumar Yadav S/o Khomkaran Yadav Aged About 20 Years R/o Murethi P.S. - Dharsiwa, District : Raipur, Chhattisgarh ... Appellant versus State of Chhattisgarh Through P.S. - Dharsiwa, District : Raipur, Chhattisgarh ... Respondent (Cause Title taken from Case Information System) For Appellant : Ms. Aditi Singhvi, Advocate For State/Respondent : Mr. Nitansh Jaiswal, Dy. Govt. Advocate Hon'ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha, Chief Justice 27.01.2026 1. The appellant has preferred this appeal under Section 374(2) of Cr.P.C. questioning the impugned judgment dated 06.08.2021 passed in learned Additional Sessions Judge, First Fast Track Special Court, Raipur (C.G.) in Special Sessions Case No.112/2019 by which the learned trial Court has convicted the appellant under Section 376AB of the Indian Penal Code (for ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 short, ‘the IPC’) and sentenced him to undergo RI for 20 years and fine of Rs. 50,000/-, in default of payment of fine, additional RI for 1 year. 2. It is pertinent to mention here that the though the appellant has also been convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act’), but since punishment under Section 376AB of the IPC is greater in degree, therefore, in view of provisions of Section 42 of the POCSO Act, the appellant has been convicted only for offence under Section 376AB IPC. 3. Case of the prosecution, in brief, is that the victim's mother filed a complaint with the Police Assistance Center, Sitalara, Dharsiwa, stating that on 29.05.2019, her husband had gone to work and her brother-in-law (devar) was admitted to Mekahara, and her two children, aged 6 and 4, were at home. On 30.05.2019, both children went to their home for nature’s call and at approximately 3:00 p.m., she sent her daughter, the victim, aged 6, to her home to call the two children. On 02.06.2019, the victim told her that urinating was painful. When asked what had happened, the victim stated that at approximately 3:00 p.m. on 30.05.2019, the accused, Golu, threatened to pay her, forcibly inserted his penis into her urethra, and then inserted his penis into her mouth. When the victim said that she would tell her uncle about the incident, the accused threatened to kill her uncle. On the basis of the above mentioned unnumbered rural complaint lodged by the victim's 3 mother at the Police Help Centre, Sitalara, Police Station, Dharsiwa, regarding the incident committed by the accused with the victim, FIR No. 283/2019 under sections 376, 377 of the IPC and sections 4, 6 of the POCSO Act was registered in Police Station, Dharsiwa and the case was taken up for investigation. On finding evidence of crime against the accused, he was arrested and after completion of investigation, the challan was prepared and the charge sheet was presented before the Court of Additional Sessions Judge, First Fast Track Special Court, Raipur (C.G.) on 06.08.2021. 4. On 05.09.2019, 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 recorded statements of a total of 08 prosecution witnesses and marked a total of 23 documents as exhibits. 5. When the statement of the accused was taken under Section 313 of the Code of Criminal Procedure, he declared himself innocent and expressed his willingness to give evidence in his defence. On behalf of the accused, statements of Sant Kumar Yadav (DW-01), Fenkuram (DW-02), Hiralal Yadav (DW-03) and Ashok Yadav (DW-04) were recorded as defence evidence and thereafter, the accused concluded his defence evidence on 02.08.2021, in this regard his statement was recorded in the margin of the order sheet. 4 6. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 06.08.2021, 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. 7. Ms. Aditi Singhvi, 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. She further submits that prior to the incident, a dispute arose between the accused's family and the victim's family over money, and the two parties had initially reached a settlement, the victim’s family subsequently fabricated a false report against the accused, alleging sexual assault on the victim, based on the same monetary dispute and the said fact is evident from the evidence of defense witnesses, who have categorically stated in their respective examinations-in- chief that a dispute arose between the accused and the victim's family over money, and a settlement was reached between the two parties. However, a few days later, the victim’s family filed a report at the police station, falsely implicating the accused. 8. On the other hand, Mr. Nitansh Jaiswal, learned Deputy Government Advocate 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 5 the appellant by alluring her to give money, forcibly inserted his penis into her urethra, and then inserted his penis into her mouth. He further submits that the doctor (PW-5) has also given definite opinion about commission of rape and the FSL report also clearly supports the case of the prosecution. Thus, the prosecution has proved the case against the appellant beyond reasonable doubt, therefore, conviction of the appellant is well founded and well supported by the evidence leading to the inference that the appellant has committed the aforesaid offence, as such, the trial Court has rightly convicted the appellant for the aforesaid offences in question. He would further submit that apparently the victim was less than 12 years of age on the date of incident and in that view of the matter, the sentence awarded by the trial Court is absolutely justified and it be maintained by dismissing the instant appeal. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 10. 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? 11. When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredients to prove such charge and the gravity of the offence gets changed when the 6 child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years. 12. In 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 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 – 7 (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 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 8 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 9 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. 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.” 13. 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 incident, the prosecution has recorded the statement of Investigating Officer/Assistant Sub-Inspector Son Prasad Rajetri (PW-08) of Police Station Dharsiwa, who in para 12 of his main examination has stated that on 02.08.2019, in relation to the date of birth of the victim, the mutation register was seized from the Headmistress through seizure memo Ex.P-08 in the presence of witnesses. 14. The victim's school teacher, Smt. Soniya Dewangan (PW-03) has stated in paragraph 03 of her examination in chief that the original mutation register is Ex.P-07 and the attested copy of the original mutation register attached to the case is Ex.P-07C. In paragraph 02, the witness has stated that in entry number 1383 of the original mutation register, the name of the student/victim, father's name, mother's name, address, caste, occupation and date of 10 birth of the victim is 15.04.2013, date of school admission is 24.06.2019, class taken as first entry are entered. In paragraph 4, the witness has stated that the mutation register was seized from her by the police through seizure memo Ex.P-08. 15. Out of the witnesses examined by the prosecution to establish the victim's age, the victim (PW-1) stated her age as 6/7 years on the date of recording her statement i.e. on 08.11.2019. 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 daughter/victim's date of birth was likely 15.04.2013, 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 unconfirmed 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 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 15.04.2013 hence, the trial Court has rightly held that the date of birth of the victim is 15.04.2013 and on the date of incident, she was minor below the age of 12 years. 16. The next question for consideration before us is whether the appellant has committed rape on minor victim? 17. In any rape case, the victim herself is the key witness in the prosecution's case, as the alleged crime is committed against her, 11 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. 18. 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 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. 19. The victim (PW-01) has stated in paragraph 1 of her examination that she knows the accused Golu. Her mother had sent her to call her cousins. In paragraph 2, the victim has stated that she was going to pee, the accused was also going to pee. The accused 12 put his penis in her mouth and also inserted his genitals where she was peeing. In paragraph 3, the victim has stated that her statement (statement under Section 164 of the IPC) was recorded in the Court and in this regard, the judge had put her thumb impression on Ex.P-01. In paragraph 4 of her cross-examination, the victim (PW-1) categorically refuted the defense's suggestion that the accused had not committed any crime against her and that the accused had been falsely implicated by her family due to a grudge against her. The victim also denied that she was making her statement in Court based on her parents' persuasion. Thus, the victim's evidence regarding the incident remained unconfirmed even in cross-examination. 20. The mother of the victim (PW-02) has stated in paragraph 1 of her examination-in-chief that she knows the accused Golu alias Nand Kumar as her brother-in-law lives in the house of the accused on rent. In Paragraph 3, the witness has stated that the incident occurred on the fifth month of 2019. At the time of the incident, her brother-in-law was admitted to Mekara Hospital, and his two children, aged 6 and 4, were at her home. Her brother-in-law's children (who were tenants at the accused's house) had gone to their home to relieve themselves. She sent her daughter, the victim, to call them. Upon reaching their home, the victim also went to pee, where the accused made her lie down, removed her underwear, and inserted his penis into both her peeing area and her mouth. This incident occurred on 29.05.2019. The accused 13 threatened the victim with death if she told her parents about the incident. In Paragraph 4, the witness stated that the victim told her about the incident on 02.06.2019. She went to Dharsiwan police station and informed the police about the incident. 21. Thus, the victim (PW-01) and the victim's mother (PW-02) in their respective Court testimonies have alleged rape and aggravated penetrative sexual assault by the accused by inserting his penis into the private parts and mouth of the victim. 22. To confirm the fact that the accused has raped the victim by inserting his penis in her private parts and mouth, the prosecution has presented the evidence of medical witnesses in its favor before the Court. Regarding which, the lady doctor Dr. Ms. Meena Samuel (PW-05) has stated in her examination-in-chief that on 05.06.2019 at 04:00 pm, when the victim was brought before her for physical examination, she examined the victim and gave the examination report Ex.P-10 and has given the opinion that according to her, there were signs of penetration in the private parts of the victim. The same witness, during the examination of the private parts of the victim, has stated that the clitoris was red and swollen, and that the victim experienced significant pain upon examining her genitals. This witness also stated that she made two slides from the victim's vaginal secretions, sealed them, and handed them over to a female constable for pathological examination. 14 23. Similarly, Dr. Nitin Tiwari (PW-04) examined the accused and gave his opinion as per report Ex.P-09 and according to his opinion the person examined was capable of sexual intercourse. The witness also stated that blue colored underwear was presented before him. White colored stains were present at about four places on the underwear. He sealed the said underwear and handed it back to the same constable, advising for chemical examination. 24. The prosecution has also produced the Forensic Science Laboratory report (Ex.P-23) in the case (which is admissible under Section 293 of the CrPC). A perusal of the said FSL report Ex.P- 23 shows that Article-A (victim's slide) and Article-B (accused's underwear) were sent to the Forensic Science Laboratory for testing. After testing, semen stains and human sperm were found in Article-B (accused's underwear), while semen stains and human sperm were not found in Article-A (victim's slide). 25. It is important to note that in the present case, a rural complaint was lodged by the mother of the victim on 05.06.2019 at 12:30 pm in connection with the incident that occurred on 30.05.2019 at 3:00 pm. On the basis of which FIR No. 283/2019 was registered at Dharsiwa police station on the same date and the victim's slide was seized at 8:00 am on 05.06.2019 as per Ex.P-13. In such a situation, the absence of semen stains and human sperm in Article-A (victim's slide) does not vitiate the prosecution case. Rather, the FSL report regarding the presence of semen stains 15 and human sperm in Article-B (accused's underwear) strengthens the prosecution case in the circumstances of the case. 26. Although the defense argues that prior to the incident, a dispute arose between the accused's family and the victim's family over money, and a settlement was reached between the two parties. Subsequently, the victim's family fabricated a false report alleging sexual assault against the victim based on the same monetary dispute. In support of this argument, the defense presented the evidence of Defense Witness No. 1 Sant Kumar Yadav, Defense Witness No. 2 Fenkuram Yadav, Defense Witness No. 3 Hira Lal Yadav, and Defense Witness No. 4 Ashok Yadav, who stated in their respective examinations-in-chief that a dispute arose between the accused and the victim's family over money, and a settlement was reached between the two parties. However, a few days later, the victim filed a report at the police station, falsely implicating the accused. But in support of the above statements made in the main examination, all the defence witnesses have admitted in the cross-examination that they are witnesses interested in the accused and they have appeared before the Court along with the mother of the accused for defence evidence and are telling the above facts in the Court for the first time, before this they had neither told the above facts to anyone nor was any complaint or report made in this regard. Although the said defence witnesses state that they are residents of the same village where the victim lives with her mother, yet the defence 16 witnesses have stated their ignorance of any incident of rape of the victim by the accused. However, the said defence witnesses have confirmed the fact in their examination that the uncle of the victim lived on rent in the house of the accused and the prosecution evidence has revealed that on the date of the incident, the victim had gone to her uncle's house to call her cousins and had gone there to pee and pee, when the accused raped the victim. Therefore, the defence evidence that the uncle of the victim lived there, corroborates the facts of the prosecution's above circumstances. 27. 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. However, the defence witnesses produced by the accused in support of his case, including in support of his alleged inability to commit the crime and the absence of a criminal mental state, failed to adduce evidence sufficient to rebut the prosecution’s case. Their evidence does not refute the prosecution evidence establishing that the accused committed the offence with a criminal mental state, nor does it create a presumption of innocence in favour of the accused. 17 28. 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 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 greater in degree than the punishment under Section 6 of the POCSO Act, therefore, in view of provisions of Section 42 of the POCSO Act, the learned trial Court has convicted and sentenced the appellant only for offence under Section 376AB IPC. 29. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/convict. 30. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 31. The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment and order dated 06.08.2021. 32. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial Court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail 18 where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Chandra