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2026:CGHC:1116-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 280 of 2022

Dipak Kumar @ Anand Kumar Dhanuhar S/o Lae Panchram Aged

About 21 Years Resident Of Village Nawagaon, Thana Nagrada, District

Janjgir Champa Chhattisgarh.

... Appellant(s)

versus

State Of Chhattisgarh Through Police Station Nagarda, District Janjgir

Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh

... Respondent(s)

For Appellant(s) :Mr. N.K. Malaviya, Advocate

For Respondent(s) :Mr. Nitansh Jaiswal, Dy. G.A.

Hon'ble Shri Ramesh Sinha, Chief Justice

Hon'ble Shri Arvind Kumar Verma , Judge

Judgment on Board

Per Ramesh Sinha , Chief Justice

08.01.2025

1.Heard Mr. N.K. Malaviya, learned counsel for the appellant. Also

heard Mr. Nitansh Jaiswal, learned Deputy Government Advocate

for the respondent / State.

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2.This criminal appeal under Section 374(2) of the CrPC is directed

against the impugned judgment of conviction and order of

sentence dated 05.08.2021 passed by the learned Special Judge

(Fast Track, Special Court) Sakti, District- Janjgir-Champa (C.G.)

in Special Case No. 20/2019, by which the appellant herein has

been convicted for offence under Section 342 r/w Section 34 of

the IPC and sentenced to undergo R.I. for 06 months and fine of

Rs.500/-, in default of payment of fine, to further undergo S.I. for

01 month and under Section 4 of the POCSO Act and sentenced

to undergo Rigorous Imprisonment for 20 years and fine of

Rs.10,000/-, in default of payment of fine, to further undergo S.I.

for 06 months.

3.Notice issued to PW-1 i.e. mother of the victim has been served,

but none appeared on her behalf to contest the present appeal.

4.The prosecution story, in brief, is that between 7:00 PM on

02.02.2019, and 8:00 AM on 03.02.2019, the accused, Deepak

Kumar Dhanuhar, lured the complainant behind a closed lime kiln

in the village, forcibly raped her, and, along with another accused,

Jeevan Lal Yadav, kept the complainant inside the lime kiln's

bunker overnight. Following the complainant's report to the

Nagarda police station, a case was registered against the

accused under Sections 376, 34 of the Indian Penal Code, and

Section 4 of the POCSO Act. During the investigation, a site map

of the crime scene was prepared by the Patwari. The

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complainant's mother's consent was obtained and she underwent

a medical examination. The accused were arrested upon finding

the crime was committed. The victim's slides were confiscated.

The statement of the victim was recorded under Section 164 of

the Code of Criminal Procedure, the statements of the witnesses

were recorded on their behalf It was recorded as stated. After

investigation, a charge sheet was prepared against the accused

under Section 342 of the Indian Penal Code and presented before

the trial Court.

5.On framing of charges against accused Deepak Kumar alias

Anand Dhanuhar under Section 04 of the Protection of Children

from Sexual Offences Act 2012, sub-section 2 (g) of Section 376

of the IPC and 342/34, its contents were read out and explained

to him, the accused denied the charges and claimed trial. On

examination of accused Deepak under Section 313 of the Code of

Criminal Procedure, when his statement was taken, he declared

himself innocent, the accused expressed that he would not give

evidence in his defence

6.In order to establish the charge against the appellant, the

prosecution examined as many as 11 witnesses and exhibited the

documents (Exs.P-1 to P-32). 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.

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7.Learned counsel for the appellant submits that the impugned

judgment, conviction and sentence dated 05.08.2021 awarded by

the trial Court is bad in law, perverse, thus liable to be set aside.

The F.I.R. has not been proved by the victim and her parents

themselves. There are contradictions and omissions in the

testimony of the victim in respect to allegations made in the F.I.R.

He further submits that the learned trial Court has convicted the

appellant on the basis of conjecture and surmises, while

witnesses of the prosecution were neither appearing natural, nor

inspiring confidence. The learned trial Court has also ignored the

material contradiction, omission with case diary statements of the

prosecution witnesses, therefore, convicting and punishing the

appellant with a life imprisonment by the trial Court is erroneous &

bad in the eye of law. Also, the independent witnesses have not

supported the prosecution case the conviction based only on the

basis of the depositions of mother and father of the victim, who

are interested witnesses. Lastly, the trial court has not appreciated

the evidence on record properly and came into erroneous

conclusion while passing the judgment of conviction which is

liable to be set aside.

8.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-2) has clearly deposed the

conduct of the appellant in her statement and in the Court

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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.

9.We have heard the learned counsel for the parties and perused

the record with utmost circumspection.

10.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.

11.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.

12. 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 18 years of age.

13.Regarding the age of the victim, the victim (PW-2) stated in her

examination-in-chief that her date of birth was 24.10.2003. This

witness's statement was uncontroversial in cross-examination.

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Similarly, the victim’s mother (PW-1) stated that she was turning

16.

14.Regarding the victim's age, the prosecution obtained the

testimony of Sampatlal Chauhan (PW-7), the Head Master. He

stated that the victim’s name is recorded in the Mutation Register

(Ex.P.-15) of Naveen Primary School, Navagaon, and her date of

birth is recorded as 24.10.2003. This mutation register was seized

by the police. He also stated that he had provided a birth

certificate (Ex.P.-16) regarding the victim’s birth. In such a

situation, there is no reason to disbelieve his statement that the

plaintiff's date of birth is recorded as 24.10.2003 in the mutation

register. A review of the mutation register, Ex.P.-15C, confirms this

witness's statement that the victim’s date of birth is 24.10.2003.

15.The victim (PW-02) stated that the incident occurred on

03.02.2019. The FIR also states that the incident occurred

between 7 p.m. on 02.02.2019 and 8 a.m. on 03.02.2019. In such

circumstances, the victim’s age on 03.02.2019, based on her date

of birth i.e. 24.10.2003, was approximately 15 years and 03

months. This indicates that the victim was under 18 years of age

and even less than 16 years of age at the time of the incident.

16.Now, next question for consideration is whether the appellant

committed rape with the prosecutrix / victim girl was a minor girl

less than 16 years of age on the date of incident.

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17.In this regard, the victim (PW-2) stated that on 03/02/2019, at 5:00

p.m., accused Deepak forcibly took her to a lime kiln and forced

sexual intercourse with her. He kept her inside the kiln overnight

and sent her home the next morning. She told her mother about

the incident, and then went to the Nagarda police station to file a

report against the accused, which was filed.

18.Thus, it is clear from the evidence of the victim (PW-2) that the

accused Deepak forcibly took her to the lime kiln, although no one

in the vicinity of the victim’s home saw him take her there and

when she cried out, no one came to her rescue. Yet, the

statement of this witness is undeniable that the accused Deepak

forcibly took her to the lime kiln and forcibly had sexual

intercourse with her and kept her there overnight and sent her

home the next morning. In such a situation, when no one came to

her rescue and when the people around did not see the victim

being taken away, the statement of the victim cannot be

disbelieved.

19.Supporting the victim’s statement, her mother (PW-1) also stated

that the incident occurred at 5 p.m. That day, she had gone to

work in the fields. Upon returning, she discovered that the victim

was not at home. A search was conducted in the village but she

was nowhere to be found. The next day, the victim returned at 8

a.m. Upon questioning, she stated that the accused, Deepak and

Jeevan, had taken her to a lime kiln. Accused Deepak had

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engaged in sexual intercourse with her. Upon the victim’s

reporting of the incident, a report was filed against the accused at

the Nagarda police station.

20.Since the incident occurred with the victim and no one saw her

being taken away by the accused, the victim’s telling her mother

about the incident cannot be ruled out. When the accused

released her in the morning and she returned home, she told her

mother about the incident and immediately filed a report. This

corroborates the victim’s statement that on the date of the

incident, accused Deepak forcibly took her to a lime kiln, forcibly

had sexual intercourse with her, and remained with her throughout

the night.

21.Ramadhin Sahis (PW-03), an independent witness, has stated

that on the night of 02.02.19 at 8.45 pm, the mother of the victim

came to her house and told her that the victim was not at home

since 7 pm and had gone somewhere. Then they went to the

house of the victim’s mother and searched for her in the house

and in the village but could not find her. At 9 am, it was found that

the victim had returned home. Apart from this, she has expressed

no knowledge about the incident. She accepted the suggestion

that the accused, Deepak, had lured the complainant to a field

near a lime kiln at night and raped her. She also accepted the

suggestion that, upon learning of the incident, she, along with the

complainant, her mother, and the village police inspector, went to

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the Nagarda police station to file a report. This witness's

statement remains uncontroversial during cross-examination.

22.Similarly, Itwar Singh (PW-4) also stated that the incident occurred

at night. The victim’s sister informed him that the victim was not at

home. He then searched for the victim in the village and

surrounding areas, but could not locate her. The victim was found

at 9 a.m. on the second day of the incident. When questioned,

she stated that the accused had kept her with them overnight, and

that she, along with her parents, had filed a report at the police

station regarding the incident.

23.Kotwar Sammelal (PW-5) also stated that the victim’s grandfather

came to him around 8-9 a.m. and told him that Deepak, a boy

from the same village, had sexually assaulted his brother's

daughter, and that they needed to go to the police station. He also

stated that Deepak had lured the victim to a field near a lime kiln

and sexually assaulted her. At that time, the plaintiff, her mother,

and the three of them went to the Nagarda police station. This

witness's statement also remained unconfirmed during cross-

examination. This corroborates the victim’s statement that

accused Deepak forcibly took her to the lime kiln, had sexual

relations with her, and kept her with him in the kiln overnight.

24.Similarly, Inspector M.M. Minj (PW-9), supporting the evidence of

the victim and witnesses, stated that on 3.02.2019, the victim

came to the police station and filed an oral report, on which a

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crime was registered against the accused under Sections 376/34

of the Indian Penal Code and Section 4 of the POCSO Act. This

witness's statement also remained uncontroversial during cross-

examination. This clearly shows that an FIR was registered

against the accused after the victim immediately reported the

incident to the police station. He also stated that on 03.02.2019,

the Sub-Divisional Officer, Sakti, received a report from the victim.

Letter (Ex.P.-18) was written for permission for internal

examination and after obtaining consent from the victim and her

mother for the examination, the complainant was sent to

Community Health Centre Sakti with a female constable for

physical examination. The complainant has also stated that she

had given her consent to the police and the doctor for examination

of her genitals.

25.Similarly, Dr. Seema Nandini Chaudhary (PW-10) stated that on

03.02.2019, when the woman constable Sakti brought the victim

for examination, she found her mentally sound. During the internal

examination, victim’s pubic hair was fully developed, both breasts

were fully developed, and no external injuries were found on her

genitals. The labia minora were distinct, and the vagina was torn

and healed. The hymen was present. There were no external

injuries on her genitals or thighs. In her opinion, she stated that

victim was accustomed to sexual intercourse. She prepared two

slides of victim’s vaginal discharge, cut off some pubic hair,

sealed them, and advised for chemical testing. Similarly, on the

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same date, when the woman constable brought a pair of panties,

she examined them, marked the white stain inside the panties

with blue ink, and recommended sending them for chemical

testing.

26.Inspector M.M. Minj (PW-9) stated that he had seized pubic hair

and vaginal slides belonging to the victim in a sealed packet and

had seized underwear from the accused. The seized property was

handed over to the Superintendent of Police. The report, Ex.P.-30,

which is of two pages, was sent to the Chemical Science

Laboratory, Bilaspur for chemical testing, and the report received

from there, Ex.P.-30, which is of two pages. From the chemical

test report (Ex.P.-30), submitted by the Senior Scientific Officer

and the Officer-in-Charge, it is clear that semen stains and human

sperm were found on the victim's panty (Exhibit-A) and the

accused's underwear (Exhibit-D). Although it is written that the

semen stains are not sufficient for serological testing, it is clear

that semen stains and human sperm were found on the victim’s

panty and the accused's underwear. This confirms the victim’s

claim that on the date of the incident, the accused forcibly had

physical relations with her.

27.From the above statements of independent witnesses and

medical evidence, it becomes clear that on the date of incident,

accused Deepak forcibly took the victim with him to the lime kiln

and forcibly had physical relations with her and wrongfully

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confined her by keeping her in the lime kiln for the whole night

and sent her home the next morning.

28.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

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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 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.”

29.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”

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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.”

30.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

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assault, sexual harassment on the children have to be

dealt with in a stringent manner and no leniency should

be shown to a person who has committed the offence

under the POCSO Act. By awarding a suitable

punishment commensurate with the act of sexual

assault, sexual harassment, a message must be

conveyed to the society at large that, if anybody

commits any offence under the POCSO Act of sexual

assault, sexual harassment or use of children for

pornographic purposes they shall be punished suitably

and no leniency shall be shown to them. Cases of

sexual assault or sexual harassment on the children

are instances of perverse lust for sex where even

innocent children are not spared in pursuit of such

debased sexual pleasure.

Children are precious human resources of our country;

they are the country’s future. The hope of tomorrow

rests on them. But unfortunately, in our country, a girl

child is in a very vulnerable position. There are

different modes of her exploitation, including sexual

assault and/or sexual abuse. In our view, exploitation

of children in such a manner is a crime against

humanity and the society. Therefore, the children and

more particularly the girl child deserve full protection

and need greater care and protection whether in the

urban or rural areas. As observed and held by this

Court in the case of State of Rajasthan v. Om

Prakash, (2002) 5 SCC 745, children need special

care and protection and, in such cases, responsibility

on the shoulders of the Courts is more onerous so as

to provide proper legal protection to these children. In

the case of Nipun Saxena v. Union of India, (2019) 2

SCC 703, it is observed by this Court that a minor who

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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.”

31.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

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physical as well as psychological and emotional.

However, if the court on facts finds it difficult to accept

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.”

32.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.”

33.The Supreme court in the matter of State of UP v. Sonu

Kushwaha, (2023) 7 SCC 475 has held as under :

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“12. The POCSO Act was enacted to provide more

stringent punishments for the offences of child abuse

of various kinds and that is why minimum punishments

have been prescribed in Sections 4, 6, 8 and 10 of the

POCSO Act for various categories of sexual assaults

on children. Hence, Section 6,on its plain language,

leaves no discretion to the Court and there is no option

but to impose the minimum sentence as done by the

Trial Court. When a penal provision uses the

phraseology “shall not be less than….”, the Courts

cannot do offence to the Section and impose a lesser

sentence. The Courts are powerless to do that unless

there is a specific statutory provision enabling the

Court to impose a lesser sentence. However, we find

no such provision in the POCSO Act. Therefore,

notwithstanding the fact that the respondent may have

moved ahead in life after undergoing the sentence as

modified by the High Court, there is no question of

showing any leniency to him. Apart from the fact that

the law provides for a minimum sentence, the crime

committed by the respondent is very gruesome which

calls for very stringent punishment. The impact of the

obnoxious act on the mind of the victim/child will be

lifelong. The impact is bound to adversely affect the

healthy growth of the victim. There is no dispute that

the age of the victim was less than twelve years at the

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.”

34.On the basis of analysis of evidence presented by the

prosecution, it is evident that date of birth of the victim is

24.10.2003 and on the date of incident i.e. 02.02.2019, it is clear

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that the age of the victim was 15 years 03 months i.e. less than 16

years at the time of the incident. It is proved that the victim is a girl

child and that the accused, knowing that the victim was a girl child

below 16 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 16 years of age. Thus, the said crime of rape,

penetrative sexual assault on a minor girl below 16 years of age

by the accused falls under the category of aggravated penetrative

sexual assault.

35.Lastly, considering the statement of the victim (PW-2) who has

specifically stated the act of the present appellant, statement of

the mother of the victim (PW-1) and father of the victim (PW-1),

statement of medical officer Medical witness Dr. Seema Nandini

Choudhary (PW-10) and Dr. P. Singh (PW-11) and FSL report

(Ex.P.30) and 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 trial

Court has rightly convicted the appellant for offences under under

Sections 342/34 of the IPC and Section 4 of the Protection of

Children from Sexual Offences Act, 2012. We do not find any

illegality and irregularity in the findings recorded by the trial Court.

36.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

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upheld. The present criminal appeal lacks merit and is accordingly

dismissed.

37.It is stated at the Bar that the appellant is in jail. He shall serve out

the sentence as ordered by the trial Court.

38.Registry is directed to send a copy of this judgment to the

concerned Superintendent of Jail where the Appellant is

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/-

(Arvind Kumar Verma) (Ramesh Sinha)

Judge Chief Justice

Manpreet