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2025:CGHC:2609

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 436 of 2021

1 - Ramnath Yadav S/o Jhurru Yadav Aged About 50 Years R/o Village

Lakhasaar, P.S. Sakri District Bilaspur Chhattisgarh., District : Bilaspur,

Chhattisgarh

...Appellant(s)

versus

1 - State Of Chhattisgarh Through Police Station Sakri District Bilaspur

Chhattisgarh., District : Bilaspur, Chhattisgarh

... Respondent(s)

For Appellant(s) :Shri Suresh Kumar Verma, Advocate

For Respondent/State:Ms. Pushplata Khalko, PL

(Hon’ble Shri Justice Arvind Kumar Verma)

Judgment on Board

15/01/2025

This appeal is directed against the impugned judgment of

conviction and order of sentence dated 23.12.2020 passed by the

Learned Special Judge, (POCSO Act), Bilaspur District Bilaspur in

Special Criminal Case No. 30/2018 whereby the appellant has

been held guilty for commission of the offence under Section 6 of

the Protection of Children from Sexual Offences Act and sentenced

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to undergo imprisonment for 10 years and to pay fine of Rs.

10,000/-, in default of payment of fine to further undergo RI for

three months.

2.Prosecution case in brief is that on the date of incident ie.

07.03.2018, when the complainant had gone to daily wage work,

the minor victim aged about 4 years went to play along with the

grandson of the appellant. When complainant came in the evening,

after taking meals were going to sleep, at that time, victim informed

her about the incident and was crying with pain whereupon she

scolded her and asked her to sleep. On the next day, at about 8-

9.00 am, mother of the victim went to the house of her sister-in-law

where the victim again started crying, on being asked, she

narrated about the incident that grandfather of Anshu ie. the

appellant herein took her in a room, closed the door and thereafter

disrobed her, laid down with her and put off his clothes and committed

bad work with her. His grandson also objected to the act of the

appellant and the victim was also crying with pain and to make her

calm, the appellant offered her food. Thereafter, aunt of the victim

applied boroplus on her private part and fomented. Complainant/mother

of the victim went to the Health Centre and narrated about the incident

to the health worker (Mitanin) and her husband, Sarpanch. FIR was

lodged at police station Sakri vide Ex.P-3. On the basis of the said

report, spot map Ex.P-2 was prepared. Victim was medically examined

vide Ex.P-11 by Dr. Suresh Tiwari. During investigation, statement of the

victim was recorded under Section 164 Cr.P.C. before the Judicial

Magistrate First Class, Bilaspur vide Ex.P-4 and offence under Section

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376 IPC and Section 4 of the POCSO Act was registered against the

appellant and he was arrested after information Ex.P-10. After

completion of investigation, the trial court framed charges against the

appellant under Sections 376 IPC and Sections 5 (m)/6 of the POCSO

Act. The appellant abjured his guilt and pleaded innocence.

3. Statement of accused was recorded under Section 313 of the

Cr.P.C. in which he denied all the circumstances appearing against him

and stated that he is innocent and has been falsely implicated. The

prosecution examined as many as 10 witnesses to bring home the

charges.

4. The trial Court upon appreciation of oral and documentary

evidence on record and considering that it is the appellant who have

committed aforesaid offence, convicted and sentenced him in the

aforementioned manner, against which the appeal under Section 374(2)

of the Cr.P.C has been preferred by the appellant.

5. It has been argued by the learned counsel for the

accused/appellant that as per case of the prosecution, the report has

been lodged by a delay of 6 days and that too, when the complaint and

her sister-in-law were knowing this fact had kept quiet for six days and

this creates a doubt. It is submitted that from the statements of the aunt

(PW-7), mother (PW-3), health worker of village (Mitanin) (PW-2) and

Sarpanch husband (PW-1), it appears that on the date of incident, the

appellant was not present in his house and there is nothing on evidence

to prove his presence in the house. He further submits that except

victim, there is no credible evidence in support of her statement and

therefore, only on the basis of deposition of victim holding the appellant

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guilty by the learned trial Court is not sustainable and the alleged

offence of the IPC and the POCSO Act are not made out against the

appellant, hence, he is entitled for acquittal.

6.Per contra, learned State counsel submits that the victim was

minor and there is no reason to disbelieve her testimony since there

was no reason for her to falsely implicate the appellant. She submits

that when her mother came in the evening from work, after taking meals

when they were going to sleep, she narrated about the incident toher

mother and kept weeping with pain. She further submits that the law

enunciated with regard to the conviction of the accused for the offence

as mentioned above on the basis of the sole testimony of the victim is a

well settled proposition in view of the various decisions of the Hon’ble

Supreme Court. Lastly, he submits that the clear creditworthy and

unshattered testimony of the victim/prosecutrix is sufficient to establish

the case of the prosecution and the same is reliable. The contradictions

pointed out on behalf of the appellant are stated to be immaterial to

discredit the testimony of witnesses. Therefore, the judgment passed by

the learned trial court was sound and did not warrant any interference.

7. Heard learned counsel for the parties and considered their rival

submissions made herein-above and also went through the original

records of the trial Court with utmost circumspection and carefully as

well.

8.From the statements of the complainant/mother of the victim who

has stated that on the date of incident ie. 07.03.2018, in the afternoon

when she returned from the field, on seeing her mother, the victim cried

aloud and due to fear she did not said anything and slept. On the next

day, she narrated about the incident to her aunt and thereafter they

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went to inform the Sarpanch and report was lodged at police station

Sakri. She has stated that due to fear from the appellant and that there

might be settlement between them, she did not disclose about the

incident to anyone in the village. Thereafter she lodged the report Ex.P-

3 against the appellant. Dr. P.C. Banerjee (PW-5) is the Medical Officer,

District Hospital, Bilaspur who had medically examined the appellant

and gave the report Ex.P-5. He has opined that the appellant is capable

of performing sexual intercourse. Dr. Vandana Kumari Choudhari (PW-

6) has given her report Ex.P-6 wherein she has stated that the hymen

was intact and redness on vulva and vagina, the child was minor, aged

about 4 years and has incompletely developed secondary sexual

characters. She has further referred to the radiologist for age

determination. Dr., Suresh Kumar Tiwari (PW-9) is the Radiologist, at

Community Health Centre, Kawardha who has opined that the victim

as aged between 3 to 5 years and the report is Ex.P-11. On perusal of

impugned judgment and the statements of the above witnesses, it

reflects that there is no dispute as to the age of the victim which has

been duly proved on record and, as such, the findings of the learned

Trial Court that victim was aged about 4 years on the basis of the report

of the Radiologist, requires no interference.

9.The position of law on the question, whether absence of injuries

found on the person of the prosecutrix, in a case of rape, would result

in a finding of acquittal, is well settled. Dealing with this issue in a

case of a child rape, and relying on earlier decisions of the Apex

Court, while upholding the conviction under Section 376 IPC, made

the following observations:

"38. ...In the case of Ranjit Hazarika Vs.

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State of Assam, reported in (1998) 8 SCC

635, the opinion of the doctor was that no

rape appeared to have committed because

of the absence of rupture of hymen and

injuries on the private part of the

prosecutrix, the Apex Court took a view that

the medical opinion cannot throw overboard

an otherwise cogent and trustworthy

evidence of the prosecutrix.”

10.The Hon'ble Supreme Court, in State of Rajasthan Vs. Om

Prakash, reported in (2002) 5 SCC 745, dealt with a similar question

in the case of a child rape, while upholding the conviction of the

appellant therein and reversing the decision of the High Court in that

behalf, relied upon earlier decisions and made the following

observations:

"13. The conviction for offence under Section

376 IPC can be based on the sole testimony of

a rape victim is a well-settled proposition. In

State of Punjab Vs. Gurmit Singh [(1996) 2

SCC384], referring to State of Maharashtra v.

Chandra Prakash Kewalchand Jain [(1990) 1

SCC 550] this Court held that it must not be

overlooked that a woman or a girl subjected to

sexual assault is not an accomplice to the

crime but is a victim of another person's lust

and it is improper and undesirable to test her

evidence with a certain amount of suspicion,

treating her as if she were an accomplice. It

has also been observed in the said decision by

Dr Justice A.S. Anand (as His Lordship then

was), speaking for the Court that the inherent

bashfulness of the females and the tendency

to conceal outrage of sexual aggression are

factors which the courts should not overlook.

The testimony of the victim in such cases is

vital and unless there are compelling reasons

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which necessitate looking for corroboration of

her statement, the courts should find no

difficulty to act on the testimony of a victim of

sexual assault alone to convict an accused

where her testimony inspires confidence and is

found to be reliable. Seeking corroboration of

her statement before relying upon the same,

as a rule, in such cases amounts to adding

insult to injury.

14. In State of H.P. Vs. Gian Chand[(2001) 6

SCC] Justice Lahoti speaking for the Bench

observed that the court has first to assess the

trustworthy intention of the evidence adduced

and available on record. If the court finds the

evidence adduced worthy of being relied on,

then the testimony has to be accepted and

acted on though there may be other witnesses

available who could have been examined but

were not examined."

11.Thus, it is needless to state that, corroboration of the testimony

of the prosecutrix, is not an essential requirement in a case of rape,

and the same is not a sine qua non to bring home the guilt of the

accused. The testimony of the prosecutrix, if well founded &

trustworthy, is by itself sufficient to convict the accused.

12.It is trite to state that it is necessary for the Courts to have a

sensitive approach when dealing with cases of child rape. The

prosecution meticulously laid out the charges against the man,

invoking the stringent provisions of the Protection of Children from

Sexual Offences (POCSO) Act, 2012 for aggravated penetrative

sexual assault. Additionally, he was also charged under the penal

laws for rape, reflecting the severity and gravity of his actions.

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13. In the case of Alakh Alok Srivastava Vs. Union of India &

Ors. (2018) 17 SCC 291, in para 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 neutral

legislation. This Act has been divided into various

chapters and parts therein. Chapter II of the Act

titled “Sexual Offences Against Children” is

segregated into five parts. Part A of the said

Chapter contains two sections, namely, Section 3

and Section 4. Section 3 defines the offence of

“Penetrative Sexual Assault” whereas Section 4

lays down the punishment for the said offence.

Likewise, Part B of the said Chapter titled

“Aggravated Penetrative Sexual Assault and

Punishment therefor” contains two sections,

namely, Section 5 and Section 6. The various

subsections of Section 5 copiously deal with

various situations, circumstances and categories

of persons where the offence of penetrative

sexual assault would take the character of the

offence of aggravated penetrative sexual assault.

Section 5(k), in particular, while laying emphasis

on the mental stability of a child stipulates that

where an offender commits penetrative sexual

assault on a child, by taking advantage of the

child's mental or physical disability, it shall

amount to an offence of aggravated penetrative

sexual assault.”

“20. Speaking about the child, a three Judge

Bench in M.C. Mehta v. State of T.N. (1996) 6

SCC 756 “1. … “child is the father of man”. To

enable fathering of a valiant and vibrant man, the

child must be groomed well in the formative years

of his life. He must receive education, acquire

knowledge of man and materials and blossom in

such an atmosphere that on reaching age, he is

found to be a man with a mission, a man who

matters so far as the society is concerned.”

14.It has been further held that “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

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view, exploitation of children in such a manner is a crime against

humanity and the society.”

15.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 Vs. Om Prakash, (2002) 5 SCC 745,

children need special care and protection and, in such cases,

responsibility on the shoulders of the Courts is more onerous so as to

provide proper legal protection to these children. In the case of Nipun

Saxena v. Union of India, (2019) 2 SCC 703, it is observed by this

Court that a minor who is subjected to sexual abuse needs to be

protected even more than a major victim because a major victim

being an adult may still be able to withstand the social ostracization

and mental harassment meted out by society, but a minor victim will

find it difficult to do so. Most crimes against minor victims are not

even reported as very often, the perpetrator of the crime is a member

of the family of the victim or a close friend. Therefore, the child needs

extra protection. Therefore, no leniency can be shown to an accused

who has committed the offences under the POCSO Act, 2012 and

particularly when the same is proved by adequate evidence before a

court of law.

16.Further it has laid down that although the victim's solitary

evidence in matters related to sexual offences is generally deemed

sufficient to hold an accused guilty, the conviction cannot be

sustained if the prosecutrix's testimony is found unreliable and

insufficient due to identified flaws and lacunae. It was held thus:

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“31. No doubt, it is true that to hold an accused

guilty for commission of an offence of rape, the

solitary evidence of the prosecutrix is sufficient

provided the same inspires confidence and

appears to be absolutely trustworthy,

unblemished and should be of sterling quality.

But, in the case in hand, the evidence of the

prosecutrix, showing several lacunae, which have

already been projected hereinabove, would go to

show that her evidence does not fall in that

category and cannot be relied upon to hold the

appellant guilty of the said offences.

32. Indeed there are several significant variations

in material facts in her Section 164 statement,

Section 161 statement (CrPC), FIR and

deposition in court. Thus, it was necessary to get

her evidence corroborated independently, which

they could have done either by examination of

Ritu, her sister or Bimla Devi, who were present

in the house at the time of her alleged abduction.

The record shows that Bimla Devi though cited

as a witness was not examined and later given

up by the public prosecutor on the ground that

she has been won over by the appellant.”

17.The Supreme court in the matter of State of UP Vs. 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 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

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very gruesome which calls for very stringent

punishment. The impact of the obnoxious act on the

mind of the victim/child will be lifelong. The impact

is bound to adversely affect the healthy growth of

the victim. There is no dispute that the age of the

victim was less than twelve years at the time of the

incident. Therefore, we have no option but to set

aside the impugned judgment of the High Court and

restore the judgment of the Trial Court’.

18.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.

19.On these lines, the Hon’ble Supreme Court in

Shivasharanappa and Others vs. 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.”

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20.In the instant case, the victim was consistent in her statement

and has asserted that the appellant after taking her inside the room,

disrobed her and slept alongside her and after putting off trouser

committed sexual assault on her. At that time, his grandson was

present who also objected saying “nknk D;k dj jgs gks”. The statement of

the prosecutrix has been consistent from the beginning to the end,

from the initial statement to the oral testimony, without creating any

doubt qua the prosecution’s case. Thus, in the case in hand, there

was no doubt that being in a position of authority and trust, the

accused had committed rape on the victim who is a minor aged

about 4 years. The oral testimonies of the minor victim and her

mother on the culpability of the convict got credence unerringly

pointing to his guilt. On appreciating the evidence on record and

coming to the conclusion that the guilt of the appellant under Section

6 of the POCSO has been conclusively proved.

21.In view of the foregoing discussion, in the considered view of

this Court, the prosecution has established the guilt of the appellant

beyond reasonable doubt. There is no contravention in the position of

law and there can be no dispute with the proposition that when the

testimony of the prosecutrix is creditworthy, trustworthy, unimpeached

and inspires confidence; the conviction of the appellant can be

sustained based solely on it.

22.Considering the evidence of the victim, who had to bear the

brunt of the depravity POCSO Act is a Special Act where the

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legislature has made stringent provisions to protect the interests of

victims who are minors.

23.In the present case it is to be noted that the accused who was

ravished a minor who was aged about 4 years which demonstrates

the mental state or mindset of the accused. Therefore, the accused

as such does not deserve any sympathy and/or any leniency.

24.The prosecution presented compelling evidence to establish

beyond doubt the culpability of the accused, leaving no room for

ambiguity regarding his guilt. Consequently, the sentence awarded to

the appellant by the Learned Trial Court also does not warrant any

interference. Therefore, the judgment and order of conviction dated

23.12.2020 is hereby upheld. The trial court has awarded minimum

sentence to the appellant, ie. 10 years therefore no interference is

called. The appeal accordingly, stands dismissed.

25.The appellant is reported to be in jail since 13.03.2019 being

the date of arrest. He is directed to serve out the sentence as

awarded to him by the trial court.

26. Let the trial court record and copy of this judgment be sent to

the trial court forthwith for necessary information and its compliance.

Sd/-

(Arvind Kumar Verma)

Judge