Bipul Kushwaha Vs State of Chhattisgarh

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2025:CGHC:13300-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 14 of 2021

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Bipul Kushwaha S/o Kameshwar Kushwaha Aged About 27 Years R/o Village- Bhedmi, Police Chowki- Ganeshmod, Police Station - Balrampur, District Balrampur-Ramanujganj (Chhattisgarh), District : Balrampur, Chhattisgarh

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... Appellant(s)

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versus

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State Of Chhattisgarh Through Police Chowki- Ganeshmod, Arakshi Kendra- Balrampur, District- Balrampur Ramanujganj (Chhattisgarh), District : Balrampur, Chhattisgarh

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... Respondent(s)

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For Appellant(s) : Mr. Deepak Kumar Singh, Advocate For Respondent(s) : Mr. Malay Jain, Panel Lawyer

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Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, J.

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Judgment on Board

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Per Ramesh Sinha, CJ

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20.03.2025

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RAHUL DEWANGAN

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1. This appeal arises out of the judgment of conviction and order of sentence dated 24.12.2020 passed by the learned Additional Sessions Judge, (Special Court POCSO/F.T.C.), Ramanujganj,

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Digitally signed by RAHUL DEWANGAN

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Balrampur, District- Balrampur (C.G.) in Special Sessions Case (POCSO) No. 42/2019, whereby the appellant has been convicted for the offences as under:-

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Conviction	Sentence	Fine	In default of
under Section	(Rigorous imprisonment)		payment of fine R.I.
Section 450 of the IPC	5 years	Rs. 3000/-	02 months
Section 506-B of	1 years	Rs.2000/-	01 month
the IPC
Section 3 read	Imprisonment for	Rs. 5000/-	6 months
with Section 4 of	life
POCSO Act

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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 20/07/2019, the prosecutrix (PW-1) lodged a written report (Ex.P-1) at the police post Ganeshmod, police station Balrampur to the effect that she is a resident of village Bhedmi, police post Ganeshmod. On the night of 19/07/2019 at about 10:00 pm, she was sleeping on a bed with her younger sister Sajan Kumari, at that time the accused Bipul Kushwaha came to her house, removed the light wire of the house, lifted her from the bed, placed her down and forcibly removed the clothes of the prosecutrix and raped her and when she started shouting, he slapped her near the ear and when she shouted, he threatened to kill her by showing a knife. Hearing the

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noise made by the complainant, her younger sister Sajan Kumari got up and went to call her brother and brother-in-law, by then the accused Bipul Kushwaha started running away after raping the complainant, her brother and brother-in-law saw the accused running away. The complainant narrated the entire incident to her brother and brother-in-law, and as her parents were not at home, she called them and informed them about the incident.

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3. On the report of the prosecutor, the police post Ganeshmod, police station Balrampur registered a First Information Report (Ex.P-2) against the accused under Section 376, 450, 506, 323 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act under Crime No. 154/2019 and started investigation. The statements of the prosecutor and witnesses Kumari Sajan, Smt. Shakuntala Kushwaha, Prasiddha Kushwaha, Rakesh Kushwaha, Smt. Kanti Devi Kushwaha, Laxmi Kushwaha and Ashok Kumar Katakwar were recorded as per their statements.

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4. After taking consent from the victim and her father for examination of the victim's private parts, Ex.P-4 and Ex.P-5, the victim was sent to District Hospital Balrampur along with written complaint Ex.P-15'A' for examination with lady constable Pramila Toppo. On 20.07.2019 itself, the sealed slide related to the vaginal discharge of the victim and the cloth worn at the time of the incident were received from lady constable Pramila Toppo. The maroon coloured underpants were seized as per seizure memo Ex.P-9.

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On 20.07.2019, the seizure was made by Santosh Minj, teacher of Government Primary School, Tribal Welfare Department, Patsara, regarding the age of the prosecutrix through the mutation register Ex.P-10 regarding the date of birth of the victim. The said mutation register is Ex.P-13 'C'. During the investigation, a site map of the incident (Ex.P-3) was prepared. The complaint was sent to Lady Police Inspector Mrs. Anita Prabha Minj for recording the statement of the victim under Section 161 Cr.P.C. On 22.07.2019, the complaint (Ex.P-19) was written to J.M.F.C. Rajpur for recording the statement of the victim under Section 164 Cr.P.C.

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5. On 21.07.2019, the accused was arrested in front of witnesses as per arrest sheet (Ex.P-17) and information about the arrest was given to his family members through Ex.P-18. On the same date, memorandum statement of the accused Ex.P-7 was recorded and the knife used in the incident was seized from the accused through seizure sheet Ex.P-8. Thereafter, on the same date, written complaint Ex.P-16'A' was sent to the doctor for sex determination of the accused. On 21.07.2019, constable Vardan Kumar K. 606 collected the underwear of the accused from the hospital which was worn at the time of the incident. It was seized through seizure sheet (Ex.P-12). During investigation, a complaint was sent through Tehsildar to obtain the map of the incident site, on the basis of which the Patwari prepared the Patwari Nazri map of the incident site (Ex.P-4).

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6. Through the Superintendent of Police Balrampur, the seized items related to the prosecutor and the accused were sent to the Joint Director Regional Forensic Science Laboratory Ambikapur, Surguja for chemical testing. In this regard, FSL report (Ex.P-20) has been attached to the case after receiving it from the Joint Director Regional Forensic Science Laboratory Ambikapur, Surguja.

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7. After completing the entire investigation, the charge-sheet was presented before the court of Additional Sessions Judge Ramanujganj, District Balrampur-Ramanujganj on 16.09.2019. Thereafter, the court of Additional Sessions Judge Ramanujganj framed the charge against the accused. The charge was read out to the accused and he denied the charge and claimed trial. The plea of the accused was recorded and the trial began. During the trial, the case was transferred to the Court of learned Additional Sessions Judge, (Special Court POCSO/F.T.C.), Ramanujganj, Balrampur, District- Balrampur (C.G.) on 08.01.2020 for due disposal.

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8. In order to establish the charge against the appellant, the prosecution examined as many as 22 witnesses and exhibited the documents (Exs.P-1 to P-20). The statement of the appellant under Section 313 of CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation

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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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9. Mr. Deepak Kumar Singh, learned counsel for the appellant submits that the impugned judgment, conviction and sentence dated 24.12.2020 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 prosecutrix and her parents themselves. There are contradictions and omissions in the testimony of the prosecutrix in respect to allegations made in the F.I.R. The medical report does not corroborate the version of the prosecutrix. The learned trial Court has outrightly failed to appreciate the material documentary and consequential evidence available on the record and erroneous finding has been recorded. In the instant case the learned trial Court has failed to appreciate that the prosecution failed to prove their case beyond the reasonable doubt and most of the prosecution witnesses have not supported the case of prosecution. The learned trial Court has fall short to appreciate that the case is entirely based on testimony of the prosecutrix whereby no other evidence has supported the prosecution case. So much so, merely on the deposition of the prosecutrix (P.W/1) the conviction has been made. In the instant case the learned trial Court failed to appreciate the section 114 of the Indian Evidence Act as because merely believing the testimony of the prosecutrix the learned trial Court must have considered the sensitivity of the

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case and for that the corroboration was much more required as because the age of prosecutrix is only about 11 years. 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

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10. 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 prosecutrix (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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11. We have heard the learned counsel for the parties and perused the record with utmost circumspection.

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12. 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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13. 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

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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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14. 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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15. Regarding the age of the victim, Investigation Officer Sub Inspector Dhirendra Banjare (PW-22) has stated in his examination-in-chief that during the investigation on 24.07.2019 he had seized the victim's Class 1 admission-rejection register from Assistant Teacher Santosh Minj of Primary School Putsura, as per seizure (Ex.P-10), in which, the victim's date of birth is mentioned as 15.08.2008.

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16. Supporting the statements of the Investigating Officer, Assistant Teacher Santosh Minj (PW-18) has stated that on 24.07.2019, the victim of Crime Case No. 154/2019 was admitted to class 1 in the primary school Putsura in the admission register (Ex.P-13). The seizure was made as per Ex.P-10. The name of the victim and date of birth 15.08.2000 is mentioned in the serial number 1008 of the Dakhil Kharij register. The Dakhil Kharij register is Exhibit P-13 and its true copy is Exhibit P-13 'C'.

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17. It is proved from the evidence of the witnesses examined on behalf of the prosecution that to prove the age of the victim, the

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seizure register Ex.P-13 was seized from Government Primary School, Putsara through seizure sheet Ex.P-10, which could not be refuted.

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18. On behalf of the prosecution, a certified copy of the Dakhil Kharij register has been presented as Ex.P-13 'C' to prove the age of the prosecutrix, which shows that in the Dakhil Kharij register of the year 2011 of the Primary School Putsura, Balrampur, serial number 1008, the name of the victim and her parents and the date of birth is mentioned as 15.08.2008. The victim was admitted to class I on 16.06.2015 and TC was provided on 10.07.2019. After satisfying himself, he should enter such entry in the register and then it becomes the duty of a public servant to make such entry in any public or government register, then the entry becomes admissible to prove the truth of the facts made and the fact that the entries were made by the officer, it is not necessary to prove who made the entries and what was the source of their information. The entries made by a public servant during the discharge of his public duty are relevant in evidence and during the discharge of his public duty, the entry has been made in the Dakhal Kharij register as per the statement of the family of the accused at the time of admission by the competent authorities of the concerned educational institution or by them on the basis of the statement of the family of the accused.

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19. The document presented by the prosecution, the original copy of the Dakhil Kharij register (Ex.P-13) and its attested copy Ex.P-13 'C' are relevant and admissible in evidence. The Dakhil Kharij register is a register duly maintained in the school as per Law 1, which is a relevant and admissible document in evidence under Section 35 of the Indian Evidence Act. No evidence has been presented by the accused to refute the said documents. Due to which it is presumed that the date of birth of the victim, dated 15.08.2008, recorded in the attested copy of the Dakhil Kharij register (Ex.P-13 'C'), is correct. As per the First Information Report No. 154/2019 dated 20.07.2019 attached to the case, the date of incident is stated to be 19.07.2019.

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20. Thus, on the basis of the documents presented by the prosecution, the date of birth of the prosecutrix as 15.08.2008 recorded in the copy of the Dakhal Kharij register, Ex.P-13 'C', the oral and documentary evidence of the prosecutrix regarding her date of birth has remained unrebutted. If the date of birth of the prosecutrix is calculated from 15.08.2008 to the date of incident i.e. 19.07.2019, then the age of the prosecutrix on the date of incident is proved to be 10 years 11 months 04 days, i.e. the age of the prosecutrix is less than 18 years. The age of the prosecutrix has been recorded as 11 years in the evidence sheet by the prosecutrix.

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21. The main issue that arises for consideration in the present appeal is whether;

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“(i) Did accused commit the offence of house trespass by entering the house owned by the prosecutrix situated in village Bhedmi under the jurisdiction of Police Station Balrampur at about 10:00 pm on the incident date 19.07.2019 with the intention of committing rape, a crime punishable with life imprisonment?"

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(ii) Did the accused commit rape by having sexual intercourse with the minor complainant below 16 years of age on the said incident, date, time and place?"

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22. With regard to this question, statement of victim (PW-1), statement of Vinika Bhagat (PW-19), statement of Dr. Mohd. Aftab Ansari (PW-21), statement of mother of the victim (PW-20), statement of father of victim (PW-22), statement of eye witness (PW-4) who is also the eye witness of the incident is taken into consideration.

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23. The prosecutrix (PW-1) has stated in her main examination that she knows the accused Bipul. The incident took place about 9 months ago. On the day of the incident, the accused Bipul Kushwaha came to her house, switched off the lights of the house and started threatening her. Thereafter, the accused forcibly raped

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her at knife point. When she tried to raise an alarm, he threatened to kill her. Somehow, when she raised an alarm, her brother-in-law Prasiddha Kushwaha and elder brother Rakesh Kushwaha came, and the accused Bipul fled from there. The prosecutrix further stated that she had lodged a report of the incident at the Ganeshmod Police Station by submitting a written application and The police interrogated her and recorded her statement. The application written by the prosecutrix (Ex.P-1), The First Information Report (Ex.P-2), the visual map of the incident site (Ex.P-3 and Ex.P-4), the consent for private part examination (Ex.P-5), her statement under section 164 Cr.P.C. recorded in Balrampur court (Ex.P-6), have been supported and she has accepted signing them.

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24. Supporting the statements of the prosecutor, child witness Ms. Sajan Kushwaha (PW-4), who was present at the scene of incident on the day of incident, has stated that she knows the accused, the victim is her sister. On the date of incident, the accused Bipul came to their house and cut the electricity wire of their house, thereafter the accused made her sister/prosecutrix sleep on the floor and showed her a knife and said that if she made any noise, he would kill her and raped her. Then she made any noise and told her brother and brother-in-law about it, then they saw the accused running away.

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25. Other witnesses examined on behalf of the prosecution are mother of the prosecutrix Kanti Devi (PW-10) and father Laxmi Kushwaha (PW-11) who had gone to Daltenganj, Jharkhand to get their son treated on the date of the incident and came to their house in village Bhedmi on the second day of the incident after receiving information over phone. The said witnesses have stated that Rakesh and Prasiddha Kushwaha called and told them that accused Bipul Kushwaha had entered their house, then they said that he would not be able to come at night. Next day at 8:00 a.m. when they reached village Bhedmi, they asked their daughter/victim and younger daughter Sajan what had happened, then they told that accused Bipul Kushwaha came into the house and switched off the light by pulling the wire and picked up the victim who was sleeping on the bed, threw her on the ground and raped her and said that he would kill her if she told anyone about the incident. The said witnesses have further stated that, thereafter, after consulting their son-in-law Prasiddha Kushwaha and Rakesh, they took the victim to the police station to register a report of the incident.

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26. Now coming to the medical evidence adduced; Dr. Vinita Bhagat (PW-19) has stated that on 20.07.2019, the victim was presented before her for genital examination by lady constable Pramila Toppo of Police Outpost Ganesh Mode Police Station Balrampur along with the written complaint of the Outpost Incharge. On examination, she found that the victim was healthy and fully

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conscious. The victim had complained that she was feeling pain while walking and was feeling uncomfortable in walking. It is further stated by the medical witness that during the examination, the victim's hymen was present. She was feeling pain on touching it. The victim's hymen was found torn in the shape of a clock at 3 o'clock and 7 o'clock. There was no bleeding from the genitals. According to her opinion, the victim must have been sexually assaulted within 24-72 hours from 5 pm on 20.07.2019. After the examination, two vaginal swabs were prepared from the victim's genitals, sealed and handed over to the lady constable for chemical examination and the victim was referred to the district hospital Ambikapur, advising an X-ray to determine her age. Her examination report is Ex.P-14. On the same date, the female constable presented the maroon colored chaddi worn by the victim at the time of the incident along with a written complaint and the chaddi was tested. She did not find any blood or semen stains during the examination. After the examination, she advised to seal the chaddi and send it for forensic examination. Her report is Ex.P-15.

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27. The investigating officer of the case Dhirendra Banjare (PW-22) further stated that during the investigation, the accused was arrested on 20.07.2019 and arrest memo (Ex.P.-17) was prepared and information of arrest was given to the family members (Ex.P18). On the same date, constable Vardan Kumar sent the written report of sex determination of the accused (Ex.P-16A) to the

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doctor and on 21.07.2019, when the constable brought the undergarment of accused Bipul from the hospital and presented it, it was seized as per seizure memo (Ex.P-12).

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28. Supporting the statements of the Investigating Officer, medical witness Dr. Aftab Ansari (PW-21) has stated that on 21.07.2019, when the accused Bipul Kushwaha was brought for examination by constable Jugendra Khalkho, he had examined him. The external sexual characteristics of the accused were fully developed. There was no injury mark on the spinal cord, genitalia or its vicinity. Chemostatic reflex was present. According to the examining doctor, the accused was found physically capable of having sexual intercourse. On the same date, a blue coloured undergarment of the accused was produced for examination and on examination, no stain or mark was found on the said undergarment. The report given by him is Ex.P-16. The witness has admitted in cross examination that there was no injury or scratch mark on the body or genitalia of the accused.

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29. A close examination of the report of the Joint Director Regional Forensic Science Laboratory Ambikapur Surguja, dated 21/08/2010, shows that the slides of the prosecutrix have been marked as Exhibit "A", the underwear of the victim as Exhibit "B" and the underwear of the accused as Exhibit "C". After examining all the said exhibits, semen stains and human sperms have been found on Exhibit "A", "B" and "C

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30. The Supreme Court in the matter of Rai Sandeep @ Deenu v.

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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 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

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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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31. 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

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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 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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32. The Supreme Court in the matter of Nawabuddin v. State of Uttarakhand (CRIMINAL APPEAL NO.144 OF 2022), decided

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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

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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 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

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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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33. When considering the evidence of a victim subjected to a sexual offence, the Court does not necessarily demand an almost accurate account of the incident. Instead, the emphasis is on allowing the victim to provide her version based on her recollection of events, to the extent reasonably possible for her to recollect. If the Court deems such evidence credible and free from doubt, there is hardly any insistence on corroboration of that version. In State of H.P. v. Shree Kant Shekar (2004) 8 SCC 153 the Hon‟ble Supreme Court held as follows:“

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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

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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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34. 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 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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35. 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

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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.”

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36. On the basis of analysis of evidence presented by the prosecution, it is evident that at the time of the incident, the victim was only 10 years 11 months 04 days and is a minor below 12 years of age. It is proved that the victim is a girl child and that the

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accused, knowing that the victim was a girl child below 12 years of age at the time of the incident, trespassed in her house and committed the crime of rape, forcible penetration, sexual assault and rape on the girl/victim below 12 years of age on knifepoint. Thus, the said crime of rape, penetrative sexual assault on a minor girl below 12 years of age by the accused falls under the category of aggravated penetrative sexual assault.

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37. Lastly, considering the statement of the prosecutrix (PW-1) who has specifically stated the act of the present appellant, statement of her mother (PW-10), statement of her father (PW-11), statement of her sister Ku. Sajan Kushwaha (PW-4), who is also the eye witness of the incident and further considering the statement of the prosecutrix recorded under Section 164 CrPC (Ex.P-6), MLC report (Ex.P-14) of the prosecutrix conducted by Dr. Vinika Bhagat (PW-19) and FSL report (Ex.P-20), the material available on record and the principle of law laid down by the Supreme Court in the above-stated judgments, we are of the considered opinion that the learned Special Judge has rightly convicted the appellant for offence under under Section 450 of the IPC, Section 506-B of the IPC and Section 3 read with 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.

¶109

24

¶110

38. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentence as awarded by the trial court to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed .

¶111

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

¶112

40. 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.

¶113

Sd/- Sd/-

¶114

( Ravindra Kumar Agrawal ) (Ramesh Sinha ) Judge Chief Justice

¶115

Rahul Dewangan

Bipul Kushwaha v. State of Chhattisgarh

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Bipul Kushwaha v. State of Chhattisgarh

Case brief

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