A S/o B Vs State of Chhattisgarh

2 Today, the matter is listed for hearing on IA No. 1 of 2024, which is an application for suspension of sentence and grant of bail to the appellant. The complainant (PW-1) has appeared through Video Conferencing and objects grant of bail to the appellant. However, with the consent of learned counsel appearing for the parties, we proceed to hear the matter on merits.

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3 The appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 ( for short, the Cr.P.C. ) questioning the judgment of conviction and order of sentence dated 13.02.2024 passed in Special Case (POCSO) No. 70/2021 by the learned Additional Sessions Judge, FTSC (POCSO) Korba, by which the appellant has been convicted for the offence under 376(2) (f) and 376(3) of the Indian Penal Act as also Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act) but sentenced under Section 6 of the POCSO Act, to undergo life imprisonment which shall mean remainder of his natural life with fine of Rs. 500/- and in default of payment of fine, to further undergo 6 months rigorous imprisonment.

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4 Case of the prosecution, in brief, is that on 05.09.2021, the mother of the victim (PW-01) submitted a written complaint (Ex.P-01) at the Police Assistance Center Manikpur, Aarshi Center Kotwali, Korba that on 08.08.2021, her son, the victim's brother (PW-04) told him that the accused uncle had committed a crime (rape) with the victim (PW-02). On asking in detail, the victim's brother told that two days after his birthday, on 14.07.2021, at 02.00 pm, when he had gone to

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the accused's house to play with the victim, the accused took the victim to his room. After a while, when he also went to the accused's room while playing, the accused saw him and started wearing his underwear and made the victim wear it too. At that time, the accused had started wearing his underwear and had told his family about the accused doing a crime with the victim and in this regard, he told his family about the crime. She was threatened to kill her and her parents if she told her parents. The victim had complained of pain while urinating since the day the crime was committed against her. The victim had informed her husband/victim about the incident.

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5 On being informed to the father (PW-3), the family members of the accused were called and a meeting was held in front of many other people, who were pressurized to compromise by speaking about the family matter, but the complainant and her husband were sad about the wrong done to the victim and thinking that if no action is taken, the accused will get away, they submitted a written complaint (Ex.P-01), on which the First Information Report Rural Nalsi (Ex.P02) was registered against the accused under Section 376K, 506 of the Penal Code and Section 05 (e), 06 of the POCSO Act in the said Police Assistance Center and the First Information Report (Ex.P-17) was registered in the Police Station Kotwali, Korba and Crime No. 864/2021 was registered and after completing the investigation, a final report has been submitted for consideration of the crime sections registered against the accused.

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6 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-17). 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 of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 3 of the judgment. Hence, this appeal.

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7 Mr. Ankur Diwan, learned counsel for the appellant submits that the impugned judgment, conviction and sentence dated 13.02.2024 awarded by the Trial Court is bad in law, perverse, thus liable to be set aside. The learned trial Court has gravely erred in appreciating the evidence inasmuch as the complainant of the FIR, who is the mother of the victim, has herself turned hostile and categorically admitted that no such incident ever occurred, thereby demolishing the very foundation of the prosecution case; that there is no independent or reliable eyewitness to establish that the appellant ever took away the victim, and the entire story of the prosecution is nothing but a concocted and fabricated version, only to falsely implicate the appellant. Further, the age of the victim has not been proved beyond reasonable doubt as the only document produced is the Dakhil-Kharij certificate of the school, which itself has not been duly proved by its author, and hence cannot be made the sole

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basis for determination of age. Also, the statement of the victim (PW-1) suffers from serious omissions and contradictions and a bare reading of the same reveals that she is a tutored witness, unfortunately misused by her parents to implicate the appellant. Also, the testimony of the father of the victim is equally unreliable and contradictory and even if the entire prosecution story is accepted at its face value, the basic ingredients of the offences alleged under Sections 376(2)(f), 376(3) of the IPC and Section 6 of the POCSO Act are not made out and that despite the absence of cogent, trustworthy and legally admissible evidence, the learned trial Court has erroneously believed the prosecution story on mere assumptions and presumptions, without properly weighing or appreciating the material on record, thereby resulting in a miscarriage of justice against the appellant.

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8 On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellant and submits that the prosecution has proved its case beyond reasonable doubt and the victim (PW-2) has clearly deposed the conduct of the appellant in her statement 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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9 We have heard the learned counsel for the parties and perused the record with utmost circumspection.

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10 The issue that arises for consideration in the present appeal is whether the testimony of the victim/prosecutrix deserves acceptance and whether the prosecution has established the case of the appellant beyond reasonable doubt.

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11 It is pertinent to observe that the question whether conviction of the accused can be based on the sole testimony of the victim in cases of sexual assault/rape is no longer res integra. The Hon’ble Supreme Court has dealt with the issue in a catena of judgments and has held that the sole testimony of the prosecutrix if found reliable can be the sole ground for convicting the accused and that the creditworthy testimony of the victim in cases of such nature deserves acceptance.

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12 The next issue that arises for consideration in the present appeal is whether the age of the victim on the date of commission of the offence concerned, was below 18 years of age.

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13 Regarding the age of the victim, the investigating officer (PW-07) has stated that on 05.09.2021, the birth certificate of the victim was seized from the mother of the victim through seizure sheet (Ex.P-06) and in support of this seizure proceedings, the mother of the victim (PW-01) has stated that she has given the birth certificate (Ex.P-05) of the victim to the police. Further, in this

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document of Ex.P-05 i.e. birth certificate of the victim, the date of birth of the victim is mentioned as 12.06.2013.

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14 Hence, in light of the oral and documentary evidence available on record, the finding of the learned trial Court to the effect that the victim was a minor at the time of the alleged incident stands duly supported. The seizure of the birth certificate through Ex.P.06 and its exhibition as Ex.P.05, coupled with the corroborating testimonies of PW-01 (mother) and PW-03 (father), clearly indicate that the date of birth of the victim is 12.06.2013. On the basis of this record, the age of the victim on the date of the alleged occurrence, i.e., 14.07.2021, has rightly been computed as 8 years, 1 month, and 2 days, which is well below 18 years. Thus, the victim was correctly held to be a “child” within the meaning of Section 2(1)(d) of the POCSO Act, and in fact, being less than 12 years of age, the provisions of Section 6 of the POCSO Act were rightly invoked.

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15 The next question that now arises for consideration is whether the prosecution has been able to prove beyond reasonable doubt that the accused committed the alleged offence against the minor victim?

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16 In this regard, the victim (PW-2), in her deposition, has specifically stated that she knew the accused as he was her maternal uncle. She narrated that on the date of the incident, the accused made her lie down near the window and then slept beside her. She

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further described that the accused opened his underwear up to his thighs and attempted to insert his penis into her private part. She resisted, began crying, and due to this, he could not proceed further. At that moment, when her brother entered the room, the accused hurriedly began adjusting and wearing his underwear. The victim also stated that she too tried to adjust her clothes at that time.

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17 During cross-examination, the victim (PW-2) remained firm on her version. She denied the suggestion of the defence that she had removed her undergarments only for the purpose of urination. She also denied the suggestion that at the time of the incident the accused had gone to take a bath. She refuted the suggestion that the accused only cared for her like her parents or that there was any quarrel between her parents and the accused on that day. When asked directly whether the accused had done nothing to her, she replied that he had in fact done “wrong things” with her. Her consistent denial of defence suggestions and her categorical answers reinforce her credibility.

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18 The victim’s brother (PW-4) has also provided a detailed and consistent account. He too identified the accused as his maternal uncle. He deposed that around two or three days after his sister’s birthday in the year 2021, while he was playing with her in the courtyard during the afternoon, the accused called him to his house. After entering, he drank water and returned home. When he later went back, he noticed that the accused had closed the

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door of the room and the lights were switched off. On entering the room, PW-4 saw the accused committing wrongful acts with his sister, the victim. He further clarified that by “wrong act,” he meant that the accused had placed his penis on the private part of the victim.

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19 In cross-examination, PW-4 consistently rejected all defence suggestions. Despite repeated efforts by the defence to discredit his evidence, PW-4 remained firm in supporting the prosecution story, and his testimony lends strong corroboration to that of the victim.

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20 The mother of the victim (PW-1) deposed that initially she ignored the complaint of pain made by the child. However, after being told by PW-4 about the conduct of the accused, she enquired further from the victim, who then disclosed that she had experienced pain in her private part because the accused had placed his penis there. PW-1 also confirmed her signature on the seizure memo relating to the victim’s birth certificate.

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21 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

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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 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

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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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22 Together, the statements of PW-2, PW-4, PW-1 and PW-3 present a coherent, consistent, and corroborative account of the events, which the defence has failed to dislodge during crossexamination.

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23 By contrast, the defence witnesses have not been able to substantiate their allegations of false implication. The accused’s father (DW-1) spoke about past quarrels during house construction and about disputes over wages. However, he admitted that no complaint had ever been made to the police, no legal notice was issued, and no proceedings were initiated in respect of these disputes. He also admitted that no complaint was filed against the victim’s family regarding the alleged false implication. The photographs produced to suggest the accused’s presence at Satrenga were not supported with date, time, or certification, and therefore lack reliability. The accused’s mother and sister also admitted that they had not seen the accused at Satrenga on the relevant date. Thus, the defence version does not inspire confidence.

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24 Further, so far as delay in lodging the FIR is concerned, explanation for delay in lodging the FIR, as provided by the mother of the victim (PW-1), is convincing. She stated that initially,

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due to persuasion by relatives and neighbours and fear of social stigma, she did not report the matter to the police. Later, when the pain of the victim persisted and PW-4 disclosed the incident, she confronted the child, who then narrated the details. Thereafter, the report was lodged. This explanation is consistent with the FIR itself and was not challenged in cross-examination.

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25 Accordingly, the consistent, detailed, and corroborative statements of the victim and her brother, supported by their parents, establish the prosecution case beyond reasonable doubt. The defence has failed to bring forth any credible material to discredit this evidence.

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26 Having carefully considered the record of the trial Court and the arguments advanced, this Court is of the opinion that the judgment of conviction recorded by the learned trial Court does not suffer from any illegality, perversity, or infirmity.

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27 The testimony of the victim (PW-2) is natural, trustworthy, and inspires confidence. She has consistently deposed that the appellant, who is her maternal uncle, subjected her to aggravated penetrative sexual assault. Her statement remained unshaken despite lengthy cross-examination, and she specifically denied every suggestion of tutoring or false implication. The evidence of PW-2 is duly corroborated by her brother (PW-4), who is an eyewitness to the incident. PW-4 categorically narrated that he had seen the appellant committing the wrongful act upon his

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sister. His testimony is natural, free from contradictions, and could not be discredited in cross-examination.

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28 The disclosure made by the victim to her mother (PW-1) and the subsequent statement of her father (PW-3) provide further corroboration. Both parents have supported the prosecution case, and their evidence has withstood cross-examination.

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29 The defence plea of false implication on account of alleged monetary dispute or quarrels within the family has not been substantiated. No documentary proof, complaint, or legal notice has been filed in respect of such disputes. The defence witnesses have themselves admitted that no formal steps were taken in connection with the alleged disputes. Thus, the defence version appears to be a mere afterthought and does not inspire confidence.

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30 The delay in lodging the FIR stands satisfactorily explained. The mother (PW-1) has stated that due to persuasion by neighbours and fear of social stigma, she initially hesitated to approach the police, but later, after the victim complained of pain and PW-4 disclosed the incident, the report was lodged. This explanation finds mention in the FIR itself and has remained unchallenged during cross-examination. The delay is therefore neither fatal nor suggestive of any embellishment.

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31 The birth certificate of the victim, duly seized through Ex.P-06 and exhibited as Ex.P-05, mentions the date of birth as 12.06.2013. The evidence of PW-1 and PW-3 further supports this seizure.

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The defence has not challenged this seizure in cross-examination nor produced any material in rebuttal. On this basis, the age of the victim on the date of incident i.e., 14.07.2021, is proved to be 8 years, 1 month, and 2 days. Accordingly, she falls within the definition of “child” under Section 2(1)(d) of the POCSO Act, and being less than 12 years of age, the aggravated provisions of Section 6 of the POCSO Act stand attracted.

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32 In view of the above discussion, this Court affirms the finding of the trial Court that the prosecution has proved the guilt of the appellant beyond reasonable doubt. Consequently, the appeal is dismissed , and the conviction and sentence imposed upon the appellant by the trial Court under Section 6 of the POCSO Act are hereby affirmed. Consequently I.A. No. 01/2024 also stands disposed of.

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33 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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34 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.

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35 Let a certified copy of this order alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any.

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Sd/- Sd/-

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

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Manpreet

A S/o B v. State of Chhattisgarh

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A S/o B v. State of Chhattisgarh

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