Amit Gupta Vs the State of Chhattisgarh

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2025:CGHC:32880-DB

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MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.07.16 10:44:02 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 119 of 2025

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Amit Gupta S/o Shri Shankar Prasad Gupta Aged About 35 Years, Resident Of Place:- Ward No.4, Arjun Nagar Next To MPEB Office, Police Station Civil Line, District - Rewa (Madhya Pradesh). Current Residence - Rawatpura Sarkar Ashram Dhaneli, Police Station Mujgahan, District - Raipur Chhattisgarh

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... Appellant(s)

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versus

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The State Of Chhattisgarh Through The Station House Officer, Police Station Civil Line Raipur, District Raipur Chhattisgarh.

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... Respondent(s)

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For Appellant(s) : Mr. Ram Mani Yadav, Advocate For Respondent(s) : Mr. Hariom Rai, Panel Lawyer

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge

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Judgment on Board

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Per Ramesh Sinha, CJ

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15.07.2025

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1. This appeal arises out of the judgment of conviction and order of sentence dated 09.08.2024 passed by the learned Additional Sessions Judge, 1^st Fast Track Special Court (POCSO), Raipur,

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District- Raipur (C.G.) in Special Case No. 55/2020, whereby the

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appellant has been convicted as follows:-

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Conviction	Sentence	Fine	In default of
under Section	(Rigorous imprisonment)		payment of fine add. R.I.
Section 363 of the IPC	7 years	Rs. 500/-	01 months
Section 366 of the	7 years	Rs.500/-	01 months
IPC
Section 376(3) of	20 years	Rs.2000/-	04 months
the IPC
Section 3 read with Section 4 of POCSO Act	20 years	Rs. 2,000/-	04 months

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All sentences have been directed to run concurrently.

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2. The prosecution story, in brief, is that on 29.01.2020, the mother of the victim (PW-2) appeared at the Civil Line Police Station, Raipur and lodged a report to the effect that her 13 years 09 months 17 days old daughter, i.e. the victim (PW-1), who lived at her maternal grandmother's house, went somewhere without informing on 28.01.2020 at 01:00 pm from her maternal grandmother's house and was not found on searching around. On which, on the report of the mother of the victim (PW-2), the Civil Line Police Station, Raipur registered a missing person complaint No.12/2020 and registered the First Information Report of the incident on 29.01.2020 and the crime was taken into investigation.

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3. During the investigation, the victim on 21.01.2020 was found in Nagpur (Maharashtra), where the police interrogated her, then the victim told that her parents had taken away her mobile phone, they did not allow her to go out, due to this, she got angry and on 28.01.2020, she took some of her clothes in a bag, without telling anyone in the house, came to Raipur Railway Station by auto and boarded the train to Nagpur, then she met the accused and on interrogation she told that she had run away from home, then the accused told her that he has contacts in Nagpur and he will get her a job there, called the complainant his sister, then on 28.01.2020, she got off the train with the appellant at 10:00 PM and had dinner with him at the station and the accused said that it is night now, I will get you a job in the morning, we will stay in a hotel now, then she stayed with the accused at 11:30 pm in room No. 107 of Nafees Guest House. At night the accused abused her, slapped her, removed her clothes and did bad things with her many times and on 29.01.2020 at 08:00 AM, again tried to do dirty things with her, when she said that she will scream, as it was morning time people had woken up, then the accused took her to Nagpur Railway Station at 09:00 AM and gave her a ticket to Raipur and told her to go to Raipur, when she was crying at Nagpur Railway Station, then a cobbler told her to go to the Dargah, so she went from there to Tajbagh Dargah, stayed there for the whole night, on 30.01.2020 at 03:00 PM, the people of the Dargah questioned her and chased her away from there, due to

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which she was roaming here and there and at around 07:00 PM, someone called the police and the police took her to the station.

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4. Thereafter, the Police Station Tehsil - Nagpur sent the victim to Child Welfare Committee Patankar Chowk, Nagpur city, counseling of the victim was done, medical examination was done, information was given to Police Station Civil Line Raipur regarding the incident, then the police officer of Police Station Civil Line went with the victim’s mother to Nagpur Maharashtra, and brought the victim back to Raipur. The incoming-outgoing register and CCTV footage of Nafees Guest House, where the accused and the victim stayed, pen drive was seized along with the certificate of 65B Evidence Act and after obtaining the general diary of Thana Tehsil of Nagpur Maharashtra, counseling report, medical report and all the documents, the victim was kept in the office of One Stop Center Mahila Bal Vikas, Raipur for safety in Raipur.

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5. During the investigation proceedings, a spot map (Ex.P-2) of the incident was prepared. The birth certificate of the prosecutrix was produced by the mother of the prosecutrix and seized in the presence of witnesses and the photocopy was obtained and the original was given on surrender. On sending the complaint to the school's Principal, the school's Principal produced the school's admission-rejection register, which was seized in front of witnesses. The verified copy of the admission-rejection register

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was matched with the original, the verified copy was attached to the case, and the original admission-rejection register was returned on surrender.

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6. The statement of the victim was recorded under Section 161 of the Cr.P.C. and under Section 164 of the Cr.P.C., the statement was recorded before the Magistrate and the victim was also counseled before the Child Welfare Committee. The victim was handed over to her mother by the Child Welfare Committee. The statements of the witnesses were recorded as per their statements, the seizure proceedings were carried out. After obtaining consent from the victim and her mother, the medical examination of the victim was conducted. It was found in the investigation that the accused had abducted the victim from her lawful guardianship by luring her with the promise of marriage and had repeatedly raped her with penetrative and aggravated sexual assault. Penetrative sexual assault has been committed, the accused was arrested and his family were informed about the arrest, medical examination of the accused was conducted. The vaginal swab, anal swab, vaginal swab, slide, underwear of the victim and the underwear of the accused were sent to the State Forensic Science Laboratory for chemical examination, the report received was attached to the case, Oppo mobile phone used in the incident, Jio and Airtel 4G SIM, was seized from the accused, call details were obtained by sending a letter to the nodal officer and certificate of section 65B Evidence Act was obtained and

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attached to the case and after completion of all the proceedings of investigation, a charge-sheet was prepared against the accused under section 363, 376 of the IPC and section 6 Protection of Children from Sexual Offences Act 2012 and presented before the trial Court.

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7. The trial Court framed charges against the accused under Sections 363, 366, 376(3), 376(2) (d) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012, and read out the same. After being told and explained the matter, the accused denied the alleged crime and wanted trial.

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8. When the accused was examined by the Court under Section 313 of the Code of Criminal Procedure, the accused stated that he was innocent, that he had been falsely implicated and that he would give evidence in his defence, but no witness was produced in his defence. In order to establish the charge against the appellant, the prosecution examined as many as 09 witnesses and exhibited the documents (Exs.P-1 to P-50).

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9. 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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10. Mr. Ram Mani Yadav, learned counsel for the appellant submits that the impugned judgment, conviction and sentence dated 09.08.2024 awarded by the trial Court is bad in law, perverse, thus liable to be set aside. Further, the learned trial Court failed to

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see that the victim and Wasim were very close friends and Wasim used to visit the house of the victim frequently and PW-02 i.e. victim's mother had admitted in her cross examination that the victim was having love affair whom she used to talk on phone all day long and use to remain home away from for the whole day. This was told by the victim in her statement in court that she used to go away from home two - three times without informing anyone after being scolded by her parents and that day also she had gone to Nagpur with the accused of her own free will the accused did not force her to go with him. The trial Court did not consider the victim's mobile phone and call details Ex.P-44.

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11. Further, the learned trial Court failed to see that the Moij Asgar Ali Fivdi (PW-08) has admitted in his cross examination that accused and victim were allotted room No. 107 and if there was any noise it would be clearly heard from outside. Further, in the medical examination report (Exhibit P-43) there were no injury marks on the body of the victim, the hymen of the victim was found to be old and torn and the doctor had given the opinion that the victim was used to physical intercourse and a definite opinion cannot be given about the immediate physical intercourse with her and any definite opinion can be given only after the chemical test report of two vaginal swabs prepared from the vaginal secretion of the victim. The Hon’ble Apex Court in its recent judgment reported in 2023 SCC On Line SC 609 Raj Kumar Vs. State (NCT of Delhi)

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considered its previous judgments and culled out the principles which reads thus:-

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"17. The law consistently laid down by this Court can be summarized as under:

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(1) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction.

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(ii) The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence; 21 CRIMINAL APPEAL No. 6781 OF 2021.

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(iii) The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused.

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(iv) The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused.

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(v) If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident.

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(vi) In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him; and.

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(vii) In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused under Section 313 of CrPC.

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(viii) While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered."

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12. 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 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.

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13. We have heard the learned counsel for the parties and perused the record with utmost circumspection.

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14. 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.

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15. It is pertinent to observe that the question whether conviction of the accused can be based on the sole testimony of the victim in

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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.

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16. 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.

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17. Regarding the age of the victim, reliance has been placed on two documentary evidences, firstly the birth certificate of the victim, secondly the school admission register of class 1 (Ex.P-14), (certified copy, Ex.P-14C), in which the date of birth of the victim is recorded.

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18. The statement of the investigating officer P. Anuradha (PW-05) is that during the investigation, on 02.02.2020, when the mother of the victim produced the birth certificate before the witnesses, she had seized the birth certificate of the victim and prepared the seizure memo (Ex.P-08). The mother of the victim (PW-02) has confirmed the statement of the Investigating Officer that she had given the birth certificate of the victim to the police and had taken the original on surrender, the surrender memo is Exhibit P-09.

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19. The statement of the investigating officer P. Anuradha (PW-05) is that she had seized the admission registration register from the

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school of the victim during the investigation. The principal of the school of the victim (PW-03) has confirmed the statement of the Investigating Officer that the admission registration register of the school (Ex.P-14), the certified copy of Exhibit P-14C, in which the date of birth of the victim was recorded, was seized and the original was provided on the surrender deed (Ex.P-15). Therefore, the seizure of the admission registration of the school has also been proved beyond doubt.

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20. The Principal of the school of the victim (PW-03) has stated that in the school's admission register, the date of birth of the victim is 12.04.2006, date of admission in school is 27.06.2012, taken admission is Class-I, the said admission register is Exhibit P-14, the verified copy is Exhibit P-14C. The Principal of the school of the victim (PW-03) has stated the date of birth of the victim as 12.04.2006 as per the Dakhal Kharij register (Ex.P-14), verified copy (Ex.P-14C) and there was no contradiction of the statement of the Principal of the school in the cross-examination.

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21. This has been held by the Hon'ble Supreme Court in the case of Usman vs State of Uttarakhand 2021 SCC OnLine Utt 142 , relying on the guidelines of Jarnail Singh vs State of Haryana (2013) 7 SCC 263 , whereby it has been determined that the age of the victim in POCSO cases shall be determined as per the provision mentioned in Section 94 of the Juvenile Justice (Care

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and Protection) Act 2015 on the basis of Rule 12 (3) of the POCSO Rules, 2007.

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22. Sub-section (2) of Section 94 of the Juvenile Justice (Care and Protection) Act 2015 provides that –

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94(2)- In case, committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-

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(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available, and in the absence thereof.

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(iii) and only in the absence of (1) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

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23. Thus, for determining the age of a child victims under the POCSO Act, the date mentioned in his/her school certificate or matriculation or equivalent certificate from the concerned examination board shall be taken into consideration first and if any of these is missing, then the birth certificate issued by the Corporation or Municipal Officer or Panchayat shall be considered and failing that, the age shall be determined through ossification test.

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24. The victim (PW-01) has stated her date of birth as 12.04.2006 in her court statement and the victim’s mother (PW-02) has also stated her date of birth as 12.04.2006 in her court statement. As a result, the evidence given by the victim and the victim’s mother regarding the her date of birth remained unrebutted. Therefore, the date of birth of the victim as 12.04.2006 recorded in the documentary evidence (Ex.P-14), verified copy Ex.P-14C has also been confirmed by the statement of the victim, the mother of the victim (PW-2) and there has been no such statement of the defence that the date of birth of the victim is not 12.04.2006 but some other date of birth.

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25. Therefore, the prosecution has proved beyond doubt that the date of birth of the victim is 12.04.2006 and the prosecutrix was a minor girl of 13 years 09 months i.e. below 16 years of age on the date of incident 28.01.2020.

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26. Now the next question that arises for consideration before this Court is whether the accused abducted the minor victim by taking her beyond her legal capacity on 28.01.2020 and committed aggravated penetrative sexual assault by raping the victim below 16 years of age on the said date, time and place of incident?

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27. Mother of the prosecutrix (PW-02) lodged a report on 29.01.2020 at Police Station Civil Line, Raipur to the effect that the victim/her daughter lived at her maternal grandmother's house and on 28.01.2020 at about 01:00 PM, she went somewhere from her maternal grandmother's house without informing anyone and took her mobile number XXXXXX1944 with her, on which a case was registered by Police Station Civil Line under Crime No. 64/2020, Section 363 of Indian Penal Code. A First Information Report (P50) was filed.

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28. The victim was recovered on 30.01.2020 by Police Station Ganeshpeth Nagpur (Maharashtra) and she was questioned and on 31.01.2020, she was medically examined and her statement was recorded in Child Welfare Committee Nagpur and she was kept in Balika Grih, Carton Road, Nagpur and information regarding this was sent to Senior Superintendent of Police Raipur, on which permission was obtained from Inspector General of Police Raipur through Exhibit.P-19 and Sub Inspector Anuradha Rao, Constable Balram Verma and Lady Constable Anuradha Manjhi of Police Station Civil Line Raipur were sent to Nagpur

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Maharashtra for investigation of the crime and on 05.02.2020, Sub Inspector, P Anuradha Rao reached Nagpur and the victim was recovered from Bal Grih Nagpur through recovery panchanama (Ex.P-11) and the panchanama of the room where the victim stayed with the accused at night was prepared (Ex.P-2) and the visitor register of the hotel was seized and CCTV footage was seized and the spot map of the incident was prepared as per the statement of the victim. After recovering the victim from Government Children's Home Nagpur on 05.02.2020, she was brought to Raipur and kept in Balika Griha, Raipur and she was medically examined and the underwear of the victim was examined and sealed and handed over for chemical examination, the said test report is Exhibit P-43 and the victim was counseled and her statement was recorded before the Magistrate under Section 164 of the Code of Criminal Procedure.

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29. The victim (PW-01) has clearly stated that after leaving the house, when she had boarded the train, the accused had asked her that where are you going, you are alone, then she had told that she had run away from home after a fight, then the accused had told her that he is also going to Nagpur and she is like his younger sister, come, I will get you a job. When they reached Nagpur in the train at night, she, the accused and the other person all three had dinner, after that the other person left and the accused took her in an auto at night to Mominpura Nafees Guest House, where they stayed in the same room in the guest house.

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30. In this case, statement of Moiz Asghar Ali Fivdi (PW-08), owner of Nafees Guest House, has been recorded and during investigation, the incoming and outgoing register of the said guest house was seized, which is Article A-1, seizure memo of which is Exhibit P- 21.

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31. It is the statement of the owner of the guest house Moiz Asgar Ali Fivdi (PW-08) that on 28.01.2020 the accused came to Nafees Guest House Mominpura Nagpur at 11:20 pm, he had taken Aadhar Card of Arjun Nagar Huzur, Rewa, Madhya Pradesh, photocopy of which was taken and attached in the register, the accused checked out from the guest house on 29.01.2020 at 10 am. The attested copy of the register of the guest house is ArticleA2 and its original copy is Article A2(1). He also alleged that there was CCTV in the guest house installed and he gave the CCTV footage of the said date to the police station in-charge. The said pen drive is Article-A1 and he gave a certificate under Section 65B Evidence Act regarding the authenticity of the pen drive, which is Exhibit P-47. On being questioned in the form of crossexamination by the prosecution, he has admitted that on 28.01.2020 at 11:00 pm he received a call on his mobile number XXXXXX0733 from mobile number XXXXXX7652 and the said person told his name as Amit Gupta and said that he has come to Nagpur for the treatment of his younger sister and he needs a room, the said person was 27-28 years old and his sister must have been 13-14 years old, then he told his employee that he has

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come for treatment, give him a room and then he was given room number 107 and when he reached the guest house on 29.01.2020 at 11:00 am, then he came to know that the accused was staying with a minor girl, whose entry is in the register and CCTV footage is there.

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32. Guest house owner Moeez Asghar Ali Fivdi (PW-08) has admitted in cross-examination that he had not personally seen the persons staying in room No. 107 of the guest house and he had not received the identity card of the girl who was staying there, as the accused had said that she was his sister and he had forgotten to bring her identity card and in the register, the name and surname of the said girl is recorded as Gupta, age 15 years and the said name was registered by the accused.

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33. An examination of the incoming and outgoing register of Nafees Guest House Nagpur, attached to the case, shows that on 28.01.2020 at 11:00 pm, the accused stayed with a girl, whose name was written as the same as that of the victim, but the surname was written as Gupta and room No. 107 of the guest house was allotted to them and on 29.01.2020, they left the guest house at 10:00 pm.

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34. The victim (PW-01) has stated in cross-examination that the accused had told her that he considered her as his younger sister, so she went with the accused. Guest house register Article-A2 attached to the case, the statement of Moiz Asgar Ali Fildi (PW-

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confirms that the accused stayed in the hotel with the minor victim on the date of the incident and told the victim that she was his sister, that is why his surname was written as Gupta in the guest house register and the name was written the same as that of the victim. Therefore, the above documentary and oral evidence confirms that on 28.01.2020, the victim and the accused went to stay at Nafees Guest House at 11:00 pm and left the guest house the next day on 29.01.2020 at 10:00 pm. The victim was recovered from Nagpur, Maharashtra on 30.01.2020, hence the prosecution has proved beyond doubt that the victim stayed with the accused at Nafees Guest House on the night of 28.01.2020.

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35. There is no evidence in the case that the victim and the accused were previously acquainted. As per the statement of the victim (PW-01), the accused met her in the train and during the conversation he told her that he will get her a job in Nagpur, she is like his younger sister, then on reaching Nagpur at night, the accused and another person had dinner in a hotel, the other person left and the accused took her to Nafees Guest House, after reaching the guest house, the accused again ordered food and he went to the bathroom and was drinking alcohol, when he came out of the bathroom, he switched off the light of the room, his body was covered with a cloth. Then, he started touching her, the accused started beating her and threatened that she had run away and he would call the police and get her arrested, and was

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forcibly pulling and tearing her clothes, when she screamed, he gagged her mouth and forcibly removed her clothes, he had physical relations with her three-four times after beating her, then he slept at night. Then, in the morning he got up again and was trying to remove her clothes, when she said that she would scream, then the accused said that you go to Raipur and he took her in an auto to Nagpur Railway station and booked a ticket to Raipur and left from there. When she was crying at the station, then the cobbler said that you should go to the Dargah, she went to the Dargah, where she stayed for a day, the police came there and took her to the police station.

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36. The victim was medically examined at Nagpur, even after being brought to Raipur, medical examination was conducted and as per the medical examination report (Ex.P-43), there were no injury marks on the body of the victim, the hymen of the victim was found to be torn and the doctor had given the opinion that the victim was used to physical intercourse and a definite opinion cannot be given about the immediate physical intercourse with her and any definite opinion can be given only after the chemical test report of two vaginal swabs prepared from the vaginal secretion of the victim.

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37. The victim (PW-01) was also medically examined in Nagpur, although the prosecution has not certified the said medical examination report, but if the said report is read once, then in the

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said report also the doctor had given the following opinion- The Possibility of sexual intercourse cannot lie ruled out after complete clinical examination. Therefore, in the said medical examination report also, the doctor did not give any such opinion that sexual relations were forcibly established with the victim.

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38. After the recovery of the victim, her underwear was seized by the police, the said seizure memo is Exhibit P-03. The victim has deposed in her cross-examination that when she had gone to the Nagpur Balika Griha, the undergarments which she had worn, the said clothes were deposited in the Balika Griha and when the same clothes were returned, she had given them to the police. She had stayed in the Nagpur Balika Griha for two-three days and when the police had come to the Balika Griha, she had given her undergarments to the Nagpur Police and the same undergarments were given by the Nagpur Police to the Raipur Police Madam.

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39. In the case, the undergarments of the victim and pubic hair, vaginal swab, anal swab, vaginal swab, slide, underwear of the victim and underwear of the accused seized, were sent for chemical examination after seizure and the report received after chemical examination is Exhibit P-40 and in the said report also, semen stains and human sperm were found in the underwear of the victim.

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40. The accused goes to Nafees Guest House with the victim whereas both of them did not know each other before and he has come there for treatment by telling that the victim is his sister. He stayed there and wrote the caste of the victim wrongly as Gupta, which shows the evil intention of the accused. The accused had already made a plan and went to stay at the guest house at night and if the accused had any real goodwill and had considered an unknown girl as his sister, then he would have made her stay at such a place where there was a separate room for her and he would not have hidden the identity of the victim. The accused had gone to Nagpur for his treatment. He has not presented any document in this regard in his defense, which shows that the accused went to Nagpur as per the prior plan and stayed in a room with the victim.

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41. It is the allegation of the victim (PW-01) that the accused had physical relations with her three-four times during the night and in the medical examination report of the victim (Ex.P-43), her hymen was found torn and when the underwear worn during the incident was sent for chemical examination, as per the report received after chemical examination (Ex.P-40), the statement of the victim was true as semen stains and human sperm were found in the underwear, which corroborate the statement of the victim that physical relations were established with the victim. Although the analysis of the entire evidence shows that the physical relationship between the victim and the accused was consensual

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and the victim was a consenting party in establishing the said physical relationship, but the victim was a minor girl below the age of 14 years at the time of the incident and in such a situation her consent was immaterial.

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42. Although the victim went with the accused with consent, but at the time of the incident the victim was a minor girl and the accused kidnapped the victim by luring her and keeping her overnight in the guest house without the consent of her lawful guardian and he kidnapped her for the purpose of having sexual intercourse and knowing that at the time of the incident the victim was a minor girl below the age of 16 years and she was not capable of giving consent for establishing sexual intercourse, he established physical intercourse with her three-four times in the guest house Nagpur and repeatedly committed rape and penetrative and aggravated penetrative sexual intercourse.

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43. As a result, the accused has failed to rebut the presumption of culpable mental state under Sections 29 and 30 of the Protection of Children from Sexual Offences Act, 2012 by the evidence on record and by his defences.

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44. In this regard, it has been provided in Section 361 of the Indian Penal Code that-

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Section 361 Kidnapping from lawful guardianship:

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"Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any

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person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."

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45. Section 3 of the POCSO Act defines penetrative sexual assault, which includes:

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A person is said to commit "penetrative sexual assault" if--

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(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

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(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

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(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

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(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

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46. The offence under Section 375 of the IPC, provides as follows:-

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375. Rape.—

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A man is said to commit "rape" if he—

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(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

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(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra

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or anus of a woman or makes her to do so with him or any other person; or

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(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

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(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

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under the circumstances falling under any of the following seven descriptions:—

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(First.)— Against her will.

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(Secondly.) — Without her consent.

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(Thirdly.) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt,

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(Fourthly.) — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

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(Fifthly.) — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

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(Sixthly.) — With or without her consent, when she is under eighteen years of age.

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(Seventhly.) — When she is unable to communicate consent.

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47. Thus, the offences under Section 3 of the POCSO Act and Section 375 of the IPC would be those of penetrative sexual assault and rape respectively, if the age of the victim is less than eighteen years and sexual intercourse is established with her. The victim (PW-1) has been proved to be a girl less than 16 years of age at the time of the incident. Though the medical evidence did not reveal any injury marks in the private parts of the victim, but medical evidence is not necessary to prove the offence of rape, partial penetration inside the vagina also constitutes the offence of rape.

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48. Amit Shukla, Investigation Officer (PW-7) has stated in his judicial statement that after the medical examination of the victim on 15.10.2020, after the doctor brought and presented a sealed packet containing two slides of the victim and another sealed packet containing the underwear of the victim by the lady constable, Exhibit P-18 was prepared, as told by the mother of the victim, the site of incident was inspected and a sight map (Ex.P-1) was prepared, a written complaint was written to the Judicial Magistrate First Class, Raigarh for recording the statement of the victim under Section 164 Cr.P.C., a complaint was written to the Tehsildar, Raigarh for preparing a site map of the site of incident by the Patwari, the accused was arrested and the arrest slip was prepared, after testing the manhood of the accused, one underwear was brought and presented by the constable and the seizure slip was seized as per Exhibit P-24.

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49. Thus, the statement of rape and penetrative sexual assault provided by the victim (PW-1) against the accused at the stage of investigation and trial in respect of the incident dated 22.09.2020 has remained unrebutted, there is no reason to disbelieve the fact that the victim would make a false statement out of irritation at any obstruction put in by the accused. This statement of the victim (PW-1) is true and there is no reason to disbelieve the statement that the accused took the victim to his house on the date of the incident by pressing her mouth and dragging her and committed the crime of rape and penetrative sexual assault. Therefore, the said statement of the victim proves that the crime of rape and penetrative sexual assault has been committed by the accused on the victim below 16 years of age.

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50. The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of NCT of Delhi, 2012 (8) SCC 21 held as under:-

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“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

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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 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.”

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51. In the matter of Alakh Alok Srivastava v. Union of India & Ors.,

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(2018) 17 SCC 291 , in paras 14 and 20, it is observed as under:

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“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 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.”

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“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

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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.”

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52. 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:-

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“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 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.

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Children are precious human resources of our country; they are the country’s future. The hope of tomorrow

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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 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.”

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53. 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

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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:“

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“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 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.”

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54. On these lines, the Hon’ble Supreme Court in Shivasharanappa and Others v. State of Karnataka , (2013) 5 SCC 705 observed as follows:

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“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

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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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55. 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

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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.”

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56. On the basis of analysis of evidence presented by the prosecution, it is evident that at the time of the incident, the victim was a minor below 16 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 16 years of age, at the time of the incident, the accused abducted the minor victim, aged about 13 years, from lawful guardianship, in order to compel or allure her and committed the crime of penetrative sexual assault including rape. 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.

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57. The prosecution has proved beyond doubt from the entire evidence available that on the night of 28.01.2020 at about 10:00 pm, from Nagpur Railway Station, the accused abducted the minor complainant, aged about 13 years, from lawful guardianship, in order to compel or allure her into illicit sexual intercourse and in the intervening night of 28.01.2020 and 29.01.2020, committed rape and aggravated penetrative sexual assault by repeatedly having physical relations with the minor complainant at Nafees Guest House, Nagpur (Maharashtra).

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58. Lastly, considering the statement of the victim (PW-1) who has specifically stated the act of the present appellant, statement of her mother (PW-2), statement of her School Principal (PW-3), statement of Moij Asgar Ali Fivdi (PW-8) and P.Anuradha (PW-5) and further considering the statement of the victim recorded under Section 164 CrPC (Ex.P-6), Dakhil Kharij Register (Ex.P14C) and FSL report which is positive, the material available on record and the principle of law laid down by the Supreme Court in the abovestated judgments, we are of the considered opinion that the learned trial Court has rightly convicted the appellant for offence under under Section 363, 366, 376(3) of the IPC read with Section 6 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.

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59. 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 .

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60. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court.

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61. 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

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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.

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Sd/- Sd/-

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( Bibhu Datta Guru ) (Ramesh Sinha ) Judge Chief Justice

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Manpreet

Amit Gupta v. the State of Chhattisgarh

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Amit Gupta v. the State of Chhattisgarh

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