Gaurav Mohabe Vs State of Chhattisgarh

Gaurav Mohabe S/o Ganesh Lal Mohabe Aged About 24 Years R/o House No. 1445, Opposite To Mahavir Timber, Vijay Nagar, P.S. Khamtarai, District Raipur, Chhattisgarh

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... Appellant(s)

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versus

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State Of Chhattisgarh Through P.S. Khamtarai, District Raipur Chhattisgarh

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... Respondent

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(Cause title is taken from Case Information System)

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For Appellant	: Mr. R. K. Jain, Advocate
For Respondent/State	: Mr. Malay Jain, Panel Lawyer
For Objector	: Ms. Anamika Jain, Advocate on behalf of Mr.
	Devershi Thakur, Advocate

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Hon’ble Shri Ramesh Sinha, Chief Justice

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Hon’ble Shri Bibhu Datta Guru, Judge

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Order on Board

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Per, Bibhu Datta Guru, J

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02/09/2025

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This appeal is directed against the judgment of conviction and order of sentence dated 30.12.2024 passed by the Court of learned Additional Sessions Judge, First Fast Track Special Court “POCSO” Raipur (C.G.)

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in Special Criminal Case “POCSO” No.160/2020 whereby the appellant

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has been convicted and sentenced as under:-

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	Conviction	Sentence
U/s	376(3) of IPC	Sentence as awarded in Section 6 of POCSO Act.
U/s IPC	376 (2)(N) of	Sentence as awarded in Section 6 of POCSO Act.
U/s Act	6 of the POCSO	R.I. for 20 years and fine of Rs.1,000/-, with default stipulation.
	All the sentenc	es were directed to run concurrently.

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Case of the prosecution, in brief, is that on 13.08.2020, the victim (PW01) appeared in Police Station Khamtarai and lodged a written complaint Ex.P-1 to the effect that at the time of complaint her age is 17 years. In the year 2018, she was studying in class 10^th . During this time, she used to go to the accused for tuition. While studying for tuition, she had told everything about herself to the accused. Before class 10^th paper, the accused proposed the victim, when she refused, he started threatening that he would tell everyone about her. Because of fear, she agreed. A few days later, the accused had made physical relations for the first time in his house. Thereafter, the accused repeatedly blackmailed her and had established physical relations with the victim in the years 2018, 2019 and 2020. The accused had physical relations with the victim two months before the last report and was threatening her with physical abuse on the date of reporting. The victim got scared and narrated the incident to her mother and then reported it to the police station. On the

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basis of the written complaint made by the victim, First Information Report (Ex.P-2) was registered at Police Station Khamtarai and investigation was started.

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During the investigation, Spot Map (Ex.P/4) was got prepared. Victim got medically examined. Accused was apprehended and statements of the witnesses including the victim was recorded by the police as well as before the Judicial Magistrate under Section 164 CrPC. Upon completion thereof, charge-sheet was submitted accordingly. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial.

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In order to bring home the offence, the prosecution has examined 07 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter.

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The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 30/12/2024 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal.

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Learned counsel appearing for the appellant would submit that the statement of the victim is filled with contradictions and omissions, thus not worthy of being given credence. He further submits that conviction cannot be based on guesswork. He submits that victim is a child witness, thus, not to be believed in the absence of corroboration and prosecution

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story is filled with doubts, benefit whereof should be extended to the accused. Learned counsel further submits that the appellant has been falsely implicated in the present case. He would submit that the conviction against the appellant is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. He would submit that the FSL report is not supported the version of the prosecution and without there being any evidence with regard to the age of the Victim, the conviction of the appellant is bad in the eyes of law. Moreover, the FIR has also been lodged after two years of the alleged incident. Hence the present case appears to be an afterthought.

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Learned counsel appearing for the State, per contra, would submit that the age of the victim being under 18 years, which is otherwise remains unchallenged during entire cross-examination, stands proved. He would submit that the MLC confirms the commission of rape upon the prosecutrix, therefore, the impugned judgment of conviction and order of sentence passed by learned Trial Court is just and proper and warrants no interference of this court.

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Learned counsel for the objector has supported the contention of the State counsel and strongly objected the contention made by the learned counsel for the appellant. She submits that the accused exploited the victim, who was a student attending his tuition classes, by continuously harassing and threatening her, ultimately forcing her into physical relations. This exploitation led to immense mental pressure on the victim. Due to which, the victim lodged the FIR after a delay of two

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years, which was a result of the prolonged exploitation and trauma suffered by the victim.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the learned trial Court with utmost circumspection and carefully as well.

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The first question for consideration would be that whether the victim was minor on the date of incident or not.

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Regarding the age of the victim, the prosecution has produced the birth certificate (Article A-1C) and Class 10^th marksheet (Article A-2C) of the victim. During investigation, on 13.08.2020, when the victim's father brought her to the police station, the victim's birth certificate and marksheet of the Central Board of Secondary Education were seized in front of the witnesses. Date of birth of the victim is mentioned in the said documents as 17.11.2002. Father (PW-03) of the victim has stated in paragraph 14 of the cross-examination the date of birth of the victim is as per Article A-2. The victim (PW-01) has stated in her crossexamination that her date of birth as mentioned in the documents is 17.11.2002.

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It is clear from the above evidence that there is no reason to disbelieve the victim's birth certificate Article A-1C and the Class 10^th marksheet Article A-2C issued by the Central Board of Secondary Education. In both the above documents, the date of birth of the victim is recorded as

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17.11.2002. Thus, the evidence produced by the prosecution in the case

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proves that the victim was below 16 years of age and a minor at the time of the alleged incident.

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Therefore, for want of challenge and proved materials available on record, we do not have any hesitation in holding that the victim on the date of incident being below the age of 18 years, is 'child' within the meaning of section 2(d) of the POCSO Act.

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The next question for consideration would come, whether the appellant committed such heinous act punishable under Section 376(3) & 376(2) (N) of IPC with the Victim or not.

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In this regard, the victim (PW-01) categorically stated in her examination that when she was studying in class 10^th , she went to the accused for tuition. At that time, he proposed to her, in turn, she refused. Thereafter, the accused threatened and blackmailed her and started pressurizing her to have physical relations. He established physical relations with the victim without her consent. When the accused committed illicit sexual intercourse for the first time, she was about 15 years old. She further stated that from the time she was studying in class 10^th till class 12^th , the accused had made forceful sexual intercourse with her several times. The accused had made physical relations with her in his house about 12-13 times. Due to mental trauma and pressure, she narrated the incident to her parents and maternal uncle. Thereafter, she lodged a written complaint Ex.P-01 against the accused in the police station.

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It is clear from the above statement of the victim that in the year 2018, the victim was in class 10^th and used to go to the accused for tuition, at

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that time she was 15 years old, when the accused had physical relations with her for the first time. Thereafter, the accused had physical relations with the victim several times till the year 2020.

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Perusal of the entire factual scenario of the case that the accused had made forceful sexual intercourse with the victim several times from the time she was 15 years old till the year 2020. The father (PW-03) of the victim corroborated the entire facts as stated by PW/1 and supported the entire narrative of the incident and also stated that when the victim was in 10^th class, she used to go to the accused for tuition in the year 2018. When the victim was in 12^th class, on 13.08.2020, she started crying at home, on query, she told that the accused had made sexual intercourse with her and used to threaten her. Thus, the victim's father has also clearly stated that the victim had told about the accused having sexual intercourse with her.

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If the testimony of the victim is trustworthy and totality of the circumstances appearing on the record of the case disclose that the victim does not have a strong motive to falsely implicate the person charged, the Court should ordinarily have no hesitation in accepting her/his evidence.

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It has also become almost settled position of law that conviction can be based on the solitary statement of victim, provided same inspires confidence of the court.

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In cases under the POCSO Act, a ‘sterling’ witness refers to a witness whose testimony is of high quality on caliber to the extent that the Court

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can accept their version of events without requiring additional corroboration. The Supreme Court in ‘n’ numbers of cases, has observed that the testimony of a victim can be sufficient for conviction, if it is trustworthy and of sterling quality.

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The Supreme Court in the matter of Rai Sandeep alias Deenu v. State (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

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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 recise, 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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Applying the well settled principles of law laid down by the Hon’ble Supreme Court in the above stated judgment and after perusing the evidence available on record, it stands established on record beyond reasonable doubt that the accused by making forceful illicit sexual

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intercourse, raped upon the victim. Victim/PW-1 has categorically assigned role to the accused in commission of said offence against her.

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As far as the FSL report (Ex.P-23) shows the semen in the slide, underwear of the victim and from the underwear of the accused and human sperm are not found is concerned, it is clear that the accused had made physical relations with the victim two months before the incident report dated 13.08.2020, due to which the negative result found in the FSL report after two months, does not make the prosecution's case doubtful, instead the medical test report of the victim is more crucial and should be a question of consideration.

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As regards, Dr. N. Bhatnagar (PW-04) who examined the victim on 13.08.2020, stated in her statement that no injury marks were found on the victim's body, her hymen was torn and the edges were healed. This witness has stated the possibility of physical intercourse with the victim as per the medical examination report of the victim. It is clear from the above statement of the witness that the hymen of the victim was torn. The possibility of physical intercourse with the victim was mentioned. Although it is admitted in paragraph 11 of the cross-examination that the hymen can get damaged due to horse riding and sports activities, but there is no suggestion in the statement of the victim that she used to do horse riding or participated in other sports activities. Due to which the accused is not getting the benefit of defence taken by mere speculation/ conjecture. Thus, the incident that happened to the victim is also supported by her father's statement and medical examination report.

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It is clear from the above entire evidence and the documents produced by the prosecution or defence, although the defense taken by the accused is that the victim was in love with the accused and she had sent love letters and other material in letters and WhatsApp chats, the fact that the victim was also in love with the accused, but it is also clear that at the time of the initial incident, the age of the victim was less than 16 years and even till June, 2018, the age of the victim was less than 18 years. There is no denial of the incident of the accused having physical relations with the victim and it is also supported by other evidence, due to which the victim's statement comes in the category of a reliable witness. It is also clear from the entire perusal of the fact situation that when the victim was minor, the accused had physical relations with her in the year 2018, thereafter, till June, 2020, the accused committed rape and aggravated penetrative sexual assault by having physical relations with the victim below the age of 16 and 18 years several times.

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In a very recent judgment the Supreme Court rendered in the matter of Sushil Kumar Tiwari v Hare Ram Sah & Ors. (CrA No.../2025 arising out of SLP (Crl.) No.18377 of 2024 decided on 1-9-2025) held thus at para 36 :

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Before closing, we deem it fit to observe that noticeably, the principle of beyond reasonable doubt has been misunderstood to mean any and every doubt in the case of the prosecution. Often, we come across cases wherein loose acquittals are recorded on the basis of minor inconsistencies, contradictions and deficiencies, by elevating them to the standard of reasonable doubts. A reasonable doubt is one that renders the version of the prosecution as improbable,

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and leads the Court to believe in the existence and probability of an alternate version of the facts. It is a serious doubt which must be backed by reason. The underlying foundation of the principle of beyond reasonable doubt is that no innocent should face punishment for a crime that he has not done. But a flipside of the same, of which we are conscious, is that at times, owing to a mis-application of this principle, actual culprits manage to find their way out of the clutches of law. Such misapplication of this principle, resulting into culprits walking free by taking benefit of doubt, is equally dangerous for the society. Every instance of acquittal of an actual culprit revolt against the sense of security of the society and acts as a blot on the criminal justice system. Therefore, not only should no innocent face punishment for something that he has not done, but equally, no culprit should manage an acquittal on the basis of unreasonable doubts and misapplication of procedure.

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Applying the well settled principles of law to the facts of the present case and upon cumulative analysis of the statements of the witnesses and the testimony of the victim, it has been established by the prosecution that the victim was minor as she was below 16 years of age at the time of alleged incident; in such a circumstance, the consent of the victim, if any, is immaterial or irrelevant, as the law presumes that a minor is incapable of giving valid consent to a physical relationship. Thus, having aforesaid materials on record, compels us to hold that prosecution has proved on record beyond reasonable doubt, that on the date of incident, the accused knowingly raped upon the victim. Thus, the trial Court has rightly appreciated the entire facts of the case in its true perspective and justifiably convicted the accused under Sections 376(3), 376(2)(N) of the IPC and Section 6 of the POCSO Act.

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Considering the entire facts and circumstances of the case and upon cumulative analysis of the evidence available on record, 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 is hereby upheld. The present appeal lacks merit and is accordingly dismissed . The appellant/accused is currently in jail. He shall remain in custody to undergo and serve the remaining period of his sentence, as imposed by the Court.

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Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing the jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.

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Sd/Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

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$. Bhilwar

Gaurav Mohabe v. State of Chhattisgarh

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Gaurav Mohabe v. State of Chhattisgarh

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