[Cites 28, Cited by 0]
Chattisgarh High Court
Jogya Prasad Jaiswal vs State Of Chhattisgarh on 23 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:18649-DB
MANPREET
KAUR
Digitally signed by
MANPREET KAUR
NAFR
Date: 2026.04.25
11:23:13 +0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 2317 of 2025
Jogya Prasad Jaiswal S/o Trilochan Jaiswal Aged About 26 Years R/o
Chimarkel P.S. Basna, District Mahasamund, Chhattisgarh
... Appellant(s)
versus
State Of Chhattisgarh Through Station House Officer, Police Station
Basna, District Mahasamund (C.G.)
... Respondent(s)
For Appellant(s) : Mr. Virendra Kumar Janardan, Advocate
For Respondent(s) : Mr. Sourabh Sahu, Panel Lawyer
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, CJ
23.04.2026
1. This appeal arises out of the judgment of conviction and order of
sentence dated 16.07.2025 passed by the Additional District &
Upper Sessions Judge, F.T.S.C. (POCSO) Saraipali, District-
Mahasamund (C.G.) in Special Criminal Case No. 28/2021,
whereby the appellant has been convicted for offences as under:
Conviction Sentence
Under Section 363 of R.I. for 7 years and fine of Rs.500/-, in
the IPC. default of payment of fine amount,
additional R.I. for 02 months.
Under Section 366 of R.I. for 7 years and fine of Rs.500/-, in
the IPC. default of payment of fine amount,
additional R.I. for 02 months.
Under Section 6 of R.I. for 20 years with fine amount of
POCSO Act Rs.1000/-, in default of payment of fine
additional R.I. for 03 months.
All the sentences were directed to run concurrently
2. The prosecution case, in brief, is that on 23.02.2021, the mother
of the victim (P.W.-01) lodged a written report alleging that the
accused, who happens to be her son-in-law, had enticed and
taken away her minor daughter, aged about 15 years, on
12.02.2021. Acting upon the said written complaint (Ex.P.-01), a
First Information Report was registered by Inspector Lekh Ram
Thakur (P.W.-12) at Police Station- Basna, District- Mahasamund,
under Section 363 of the Indian Penal Code, 1860 vide Crime No.
83/2021 (Ex.P.-02), and investigation was set in motion.
3. During the course of investigation, steps were undertaken to
ascertain the age of the victim. A notice (Ex.P.-23) was issued to
the Headmaster of the concerned school seeking relevant
records. The scholar/mutation register (Ex.P.-13) was seized vide
seizure memo (Ex.P.-12), and after obtaining a certified copy
thereof (Ex.P.-13C), the original register was returned under a
surrender memo (Ex.P.-24). Further, on the basis of information
provided during investigation, a spot map (Ex.P.-03) was
prepared. Upon a requisition (Ex.P.-19) made to the Tehsildar,
Patwari Nitesh Kumar (P.W.-09) prepared a panchnama of the
place of occurrence along with a site map (Ex.P.-04).
4. The statement of the victim under Section 161 of the Code of
Criminal Procedure, 1973 was recorded by Female Head
Constable Chanchal Banswar (P.W.-13). Subsequently, her
statement under Section 164 CrPC was recorded on 24.07.2021
before the learned Judicial Magistrate, Saraipali (Ex.P.-09),
facilitated by Female Constable Subhashini Bhoi (P.W.-08), whose
duty certificate is on record (Ex.P.-14). Statements of other
prosecution witnesses were also recorded during investigation.
Based on the statement of the victim, additional offences under
Sections 366 and 376(3) of the Indian Penal Code, 1860 and
Section 6 of the Protection of Children from Sexual Offences Act,
2012 were incorporated against the accused.
5. During investigation, the victim was recovered on 21.07.2021 from
the custody of the accused at VKS Industries, Pasur, District
Erode, State of Tamil Nadu, and a recovery panchnama was
prepared (Ex.P.-06). Thereafter, upon obtaining consent of the
victim and her mother (Ex.P.-05 & Ex.P.-07), the victim was
medically examined by Dr. Varsha Satpathy (P.W.-11), Medical
Officer, CHC Basna, vide report (Ex.P.-08). The victim was
escorted for medical examination by Constable Basanti Seth
(P.W.-10). During such examination, relevant articles including
undergarments and vaginal slides were seized vide seizure memo
(Ex.P.-15), and the same were sent for forensic examination to the
State Forensic Science Laboratory, Raipur through Constable
Roshan Lal Dhruv (P.W.-14). The FSL report received in this
regard is exhibited as (Ex.P.-25).
6. During interrogation, the accused is stated to have made
inculpatory statements admitting his involvement in the offence,
including repeated sexual assault upon the victim after luring her
away. He was subsequently arrested vide arrest memo (Ex.P.-11),
and intimation of arrest was furnished to his family members
(Ex.P.-22).
7. The accused was also subjected to medical examination at CHC
Basna, conducted by Dr. B.R. Malik (P.W.-15), and the medical
report is exhibited as (Ex.P.-18). During the said examination,
samples were preserved and sealed. The mobile phone of the
accused was seized vide seizure memo (Ex.P.-10) in the
presence of witnesses, namely P.W.-04 and P.W.-06. Upon
completion of investigation, a charge-sheet was filed against the
accused for offences punishable under Sections 363, 366, 376(3)
of the Indian Penal Code, 1860 and Section 6 of the Protection of
Children from Sexual Offences Act, 2012.
8. Upon committal of the case, charges were framed against the
accused under Sections 363, 366(A), 376(2)(N), 376(3) of the
Indian Penal Code, 1860 and Section 6 of the Protection of
Children from Sexual Offences Act, 2012. The accused abjured
guilt and claimed to be tried.
9. In order to establish the charge against the appellant, the
prosecution examined as many as 16 witnesses and exhibited the
documents (Exs.P-1 to P-25). 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.
10. Learned counsel for the appellant submits that the impugned
judgment of conviction and order of sentence passed by the
learned trial Court is wholly illegal, arbitrary, and contrary to the
facts and evidence available on record, and is therefore liable to
be set aside. It is contended that the prosecution case suffers
from material contradictions and inconsistencies, inasmuch as the
statements of the victim recorded under Section 161 Cr.P.C.,
Section 164 Cr.P.C., and her deposition before the Court are not
consistent with each other and contain significant improvements,
thereby rendering her testimony unreliable. It is further argued
that the issue of age of the victim has not been conclusively
established, as despite medical opinion recommending
radiological examination, the same was not conducted, creating
serious doubt regarding applicability of the provisions of the
Protection of Children from Sexual Offences Act, 2012. Learned
counsel submits that the appellant has been falsely implicated
and the prosecution has failed to prove the essential ingredients
of the alleged offences beyond reasonable doubt. It is also
contended that the learned trial Court has erred in placing undue
reliance upon the testimony of P.W.-01 (mother of the victim),
whose evidence is interested, uncorroborated, and unreliable.
Further, it is urged that no independent witnesses have been
examined by the prosecution and all witnesses are interested
witnesses, thereby weakening the prosecution case. The learned
counsel emphasizes that there are material omissions and
contradictions in the statements of prosecution witnesses, which
have not been properly appreciated by the trial Court. It is also
pointed out that there is an unexplained delay in lodging the FIR,
which creates doubt about the veracity of the prosecution story.
Lastly, it is submitted that in view of the evidence on record, no
offence as alleged is made out against the appellant, and the
findings recorded by the trial Court are perverse and
unsustainable in law, thus entitling the appellant to acquittal.
11. On the other hand, learned counsel for the State submits that the
impugned judgment of conviction and order of sentence passed
by the learned trial Court is well-founded, legally sound, and
based on proper appreciation of the evidence on record, and
therefore calls for no interference. It is contended that the victim
(P.W.-03), in her statement recorded under Section 164 of the
Code of Criminal Procedure, 1973 (Ex.P.-09) as well as in her
deposition before the Court, has clearly and consistently stated
that the appellant had taken her away and subjected her to
repeated non-consensual physical acts. Her testimony, it is urged,
remains cogent and reliable on material particulars. The medical
evidence, as proved by Dr. Varsha Satpathy (P.W.-11) vide report
(Ex.P.-08), lends assurance to the prosecution case, wherein it
has been opined that the hymen was not intact and findings were
suggestive of prior sexual activity. It is further submitted that the
age of the victim has been duly established through documentary
evidence in the form of school records, wherein her date of birth is
recorded as 07.07.2005, thereby establishing that she was a
minor at the relevant time. Learned counsel further submits that
the prosecution has examined 16 witnesses and proved 25
documents, and after a full-fledged trial, including examination
and cross-examination of witnesses and recording of statement of
the accused under Section 313 Cr.P.C., the learned Special Court
has rightly recorded a finding of guilt against the appellant by
judgment dated 16.07.2025. It is contended that the investigation
has been conducted in accordance with law and the evidence
adduced by the prosecution clearly establishes the involvement of
the appellant, which remains unshaken. Emphasis is also laid on
the fact that the appellant, being related to the victim, misused the
position of trust and subjected a minor child to unlawful acts. The
conviction is primarily based on the testimony of the victim, which
has been found to be trustworthy and of sterling quality. It is thus
submitted that the prosecution has successfully proved the
charges beyond reasonable doubt, and the learned trial Court,
upon detailed appreciation of evidence, has rightly concluded that
the chain of incriminating circumstances is complete and points
towards the guilt of the appellant. Considering the gravity of the
offence committed against a minor, it is urged that the appeal,
being devoid of merit, deserves to be dismissed.
12. We have heard the learned counsel for the parties and perused
the record with utmost circumspection.
13. 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.
14. 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.
15. 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.
16. Regarding the age of the victim, it is pertinent to note that for
determination of age, the prosecution has relied upon
documentary evidence falling within the ambit of clause (i) of sub-
section (2) of Section 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015. As per the statutory scheme,
preference is to be given to documentary proof such as school
records in determining the age of a child.
17. To establish the age of the victim, the prosecution has placed
reliance upon the admission and withdrawal (Dakhil Kharij)
register (Ex.P.-13) and its attested copy (Ex.P.-13C), maintained
by the school of the victim, wherein her date of birth is recorded
as 07.07.2005.
18. The Investigating Officer (P.W.-01) has deposed that he issued
notice (Ex.P.-23) to the concerned school for production of
records and seized the admission register vide seizure memo
(Ex.P.-12). After obtaining the attested copy (Ex.P.-13C), the
original register was returned under proper acknowledgment
(Ex.P.-24). The Headmaster (P.W.-07) has duly supported the
seizure and has produced the original register before the Court.
He has categorically stated that the entry relating to the victim
appears at serial No. 1350 and records her date of birth as
07.07.2005. The seizure has also been corroborated by
independent witness P.W.-05.
19. In cross-examination, the Headmaster clarified that the entries
were made by his predecessor, however, he explained the
procedure followed at the time of admission, wherein documents
such as birth certificate or Aadhaar card are relied upon. The
defence has not brought any material on record to demonstrate
that the entry regarding date of birth is incorrect or fabricated. A
mere suggestion that the witness did not personally make the
entry is insufficient to discredit the document. The school register,
having been maintained in the ordinary course of official duty, is
admissible under Section 35 of the Indian Evidence Act, and
carries a presumption of correctness unless effectively rebutted.
20. The oral evidence also lends support to the documentary proof.
The victim (P.W.-02), in her deposition, has stated her date of birth
as 07.07.2005. Her educational history, as reflected from the
school records, is consistent with her stated age. The testimony of
her mother (P.W.-01) further indicates that the victim was younger
than her elder sibling by about 3-4 years and was below 18 years
at the time of the incident. A cumulative reading of these
statements reinforces the conclusion that the victim was a minor
at the relevant time.
21. It is significant to note that the defence has failed to adduce any
cogent evidence to rebut the documentary proof regarding age.
No contrary material, such as birth records maintained by local
authorities or other contemporaneous documents, has been
produced to cast doubt on the date of birth recorded in the school
register. In absence of any substantive challenge, the entries in
the school record remain reliable.
22. Upon a comprehensive evaluation of the documentary and oral
evidence on record, this Court finds that the date of birth of the
victim is duly established as 07.07.2005. The date of the incident
being 12.02.2021, the victim was aged approximately 15 years,
07 months, and 05 days, and thus was below 16 years of age at
the relevant time.
23. Accordingly, it is held that the prosecution has successfully
established that the victim was a minor on the date of the incident.
24. The next question for consideration is whether, on the basis of the
evidence on record, the prosecution has been able to establish
beyond reasonable doubt that the accused, on or about
12.02.2021, enticed or took away the minor victim from the lawful
guardianship of her mother without her consent, and thereafter,
during the period of her absence till her recovery on 21.07.2021,
subjected her to repeated acts constituting offences punishable
under the relevant provisions of the Indian Penal Code, 1860 and
the Protection of Children from Sexual Offences Act, 2012?
Appreciation of Evidence relating to abduction, recovery, and
sexual assault
25. The Investigating Officer, Inspector Jitendra Kumar Vijaywar
(P.W.-16), has deposed that upon registration of Crime No.
83/2021 at Police Station- Basna for offences under Sections 363,
366, 376(3) of the Indian Penal Code, 1860 and Section 6 of the
Protection of Children from Sexual Offences Act, 2012, he
undertook investigation in accordance with law and, after
completion thereof, submitted the final report before the
jurisdictional Court. The witness has broadly narrated the steps
taken during investigation, including collection of documentary
evidence, recording of statements, recovery proceedings, and
forwarding of material objects for forensic examination.
26. The victim (P.W.-02) has deposed that she was acquainted with
the accused. The occurrence took place in February, 2021 when
the accused called her to her sister's house at Saradih. It is stated
that the accused initially represented that they would go for a
casual outing. When she expressed her intention to speak to her
mother, the accused prevented her from doing so and thereafter
took her away without her consent. She has further stated that
she was taken to Tamil Nadu, where she was kept under the
control of the accused. According to her deposition, she was
compelled to accompany him to a place of work and during the
period of stay, the accused subjected her to sexual assault
repeatedly. She has further stated that she was made to work
during the day and was sexually assaulted during the night hours.
Whenever she expressed her desire to return home, the accused
threatened her with dire consequences and exercised control over
her movements. She has also stated that her earnings were
retained by the accused and she was not permitted to
communicate freely with her family. The victim has categorically
stated that she was under constant pressure, coercion, and fear,
and was not in a position to leave the custody of the accused.
27. The victim has further admitted her signatures on the recovery
panchnama (Ex.P.-06) and on the consent for medical
examination (Ex.P.-07). She has also admitted her signature on
her statement recorded under Section 164 of the Code of Criminal
Procedure (Ex.P.-09), thereby affirming that the said statement
was made voluntarily before the Magistrate.
28. In her cross-examination, though suggestions were put to the
effect that she had accompanied the accused voluntarily and that
no coercion was involved, she denied the same. She reiterated
that she was taken away against her will and subjected to
exploitation. The defence version of consensual travel was
specifically denied by her.
29. The mother of the victim (P.W.-01) has deposed that the victim is
her daughter and that the accused had taken her away from
lawful custody. She has stated that after the victim went missing,
efforts were made to trace her and inquiries revealed that she was
in Tamil Nadu along with the accused. She has further stated that
upon receiving information, the police proceeded to Tamil Nadu
and the victim was recovered. She has denied the defence
suggestion that the victim had left voluntarily for employment
purposes.
30. The sister of the victim (P.W.-03) has stated that the accused, who
is her husband, had taken the victim to Tamil Nadu. She has
further deposed that the victim was residing with the accused and
was subsequently traced and recovered with the assistance of
police authorities. She has also stated that the victim was not
living independently and was under the influence and control of
the accused. In cross-examination, she denied the suggestion
that the victim had accompanied the accused of her own free will.
31. The uncle of the victim (P.W.-04) has also supported the
prosecution version and stated that the victim was taken away by
the accused and was later recovered from Tamil Nadu. His
testimony corroborates the fact of removal of the victim from
lawful guardianship.
32. A cumulative reading of the testimonies of P.W.-01 (mother), P.W.-
03 (sister), and P.W.-04 (uncle) shows consistent and
corroborative evidence that the victim was taken away by the
accused without consent and was subsequently recovered from
Tamil Nadu. Their statements remain substantially unshaken in
cross-examination insofar as the factum of removal and recovery
is concerned.
33. The statement of the victim under Section 164 Cr.P.C. (Ex.P.-09)
assumes significance, wherein she has clearly stated before the
Magistrate that she was taken away without consent and
subjected to repeated sexual exploitation during her stay with the
accused. The said statement is consistent with her deposition
before the Court and lends corroboration to the prosecution case.
34. The recovery of the victim from Tamil Nadu is also supported by
the recovery panchnama (Ex.P.-06) and the testimony of the
investigating officer and independent witnesses. The evidence on
record demonstrates that the victim was traced and recovered
from the company of the accused at a workplace in Tamil Nadu,
thereby establishing her removal from the lawful custody of her
guardian.
35. On a holistic appreciation of the evidence, it stands established
that the victim was a minor at the relevant time and was taken
away from the lawful custody of her parents without their consent.
The prosecution evidence further establishes that she was
transported to another State and kept there under circumstances
indicating control, coercion, and absence of free will.
36. The consistent version of the victim, corroborated by her mother,
sister, uncle, recovery witnesses, and documentary evidence,
establishes that the accused not only removed her from lawful
guardianship but also continued to exercise control over her
movements during the relevant period.
37. Accordingly, it is proved beyond reasonable doubt that the
accused had, on the relevant date, abducted the minor victim from
the lawful custody of her guardian without consent and
transported her to another place, thereby attracting the
ingredients of Sections 363 and 366 of the Indian Penal Code,
1860, as well as provisions of the Protection of Children from
Sexual Offences Act, 2012.
Findings regarding sexual assault and evidentiary
appreciation
38. The next aspect for consideration is whether the prosecution has
established that the accused subjected the victim to repeated
sexual assault/aggravated penetrative sexual assault during the
period she remained in his custody from 12.02.2021 to
21.07.2021.
39. The victim (P.W.-02) has, in clear and categorical terms, deposed
that after being taken to Tamil Nadu, she was kept with the
accused under conditions of control and coercion. She has stated
that during the day she was made to accompany the accused to a
place of work, and at night she was subjected to sexual assault by
him. She has further stated that such acts were not isolated, but
continued repeatedly during the entire period of her stay. She has
also deposed that whenever she expressed her desire to return to
her parental home, the accused threatened her with dire
consequences, thereby preventing her from escaping his control.
The testimony of the victim thus discloses a consistent narrative
of continued exploitation, absence of consent, and domination by
the accused.
40. The victim has further stated that she was not permitted to
maintain contact with her family and was kept under constant fear.
She has also stated that her earnings were taken away by the
accused and she had no independent control over her
movements or communication. These circumstances, as narrated
by her, clearly indicate absence of voluntariness and existence of
coercive control, thereby negating any possibility of consensual
relationship.
41. The statement of the victim recorded under Section 164 of the
Code of Criminal Procedure (Ex.P.-09) assumes evidentiary
significance. In the said statement, she has reiterated that she
was taken away without consent and was subjected to repeated
sexual intercourse by the accused during the period she remained
with him. The said statement is consistent with her deposition
before the Court and there is no material contradiction which
would create any doubt as to its reliability.
42. The testimony of P.W.-03 (sister of the victim) also supports the
prosecution version. She has stated that the victim was taken to
Tamil Nadu by the accused and was found living with him at a
workplace. She has further deposed that upon receiving
information, she along with police personnel proceeded to Tamil
Nadu and the victim was recovered from the company of the
accused. Though she was subjected to cross-examination, her
version regarding the victim being in the custody of the accused
and her recovery remained substantially intact.
43. The testimony of P.W.-01 (mother of the victim) and P.W.-04
(uncle) also corroborates the fact that the victim was taken away
by the accused and was subsequently traced in Tamil Nadu. Their
evidence, though brief on the aspect of sexual assault,
strengthens the foundational fact that the victim remained in the
exclusive company of the accused during the relevant period.
44. The medical evidence of Dr. Varsha Satpathy (P.W.-11) further
lends corroboration to the prosecution case. The medical
examination (Ex.P.-08) indicates that the victim had a ruptured
hymen with findings suggestive of prior sexual activity. The doctor
has opined that there were no external injuries on the body.
However, she has noted findings consistent with past sexual
intercourse. Though the FSL report did not detect semen, the
medical opinion clearly indicates previous penetration, which,
when read in conjunction with the oral testimony of the victim,
supports the prosecution case of repeated sexual activity over a
prolonged period.
45. It is well settled that absence of semen or absence of fresh
injuries is not, by itself, determinative of the issue in cases
involving prolonged custody and repeated sexual intercourse,
particularly where the victim has remained under the control of the
accused for a considerable period. In the present case, the
prosecution version is of continuous cohabitation-like custody, and
therefore, the medical findings cannot be read in isolation to
discredit the otherwise consistent and cogent testimony of the
victim.
46. The law is equally settled that conviction in cases of sexual
offences can safely be based on the sole testimony of the victim,
provided it inspires confidence and is of sterling quality. In the
present case, the testimony of the victim is consistent, natural,
and corroborated by her earlier statement under Section 164
Cr.P.C., recovery evidence, and medical findings. No material
contradiction or omission has been brought on record which
would discredit her version or render it unsafe for reliance.
47. The defence has suggested that the relationship was consensual.
However, such a plea stands negated in view of the categorical
assertion of the victim that she was taken away without consent,
kept under coercion, and subjected to repeated sexual assault.
The surrounding circumstances, including her age, manner of
removal, continued custody, and threats alleged to have been
extended to her, clearly rule out any voluntary participation.
48. The evidence of the victim is further strengthened by the recovery
of her from the possession/companionship of the accused at Tamil
Nadu, as established by the recovery panchnama (Ex.P.-06) and
supported by independent witnesses. The fact that she remained
with the accused continuously during the relevant period is not in
dispute.
49. In view of the cumulative assessment of oral and documentary
evidence, this Court finds that the prosecution has successfully
established beyond reasonable doubt that the accused not only
abducted the minor victim but also subjected her to repeated
sexual assault during the period she remained in his custody. The
testimony of the victim, duly corroborated by medical evidence
and surrounding circumstances, inspires full confidence and does
not suffer from any inherent improbability.
50. The Supreme Court in the matter of Rai Sandeep @ Deenu v.
State of NCT of Delhi, 2012 (8) SCC 21 held as under:-
"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
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."
51. In the matter of Alakh Alok Srivastava v. Union of India & Ors.,
(2018) 17 SCC 291, in paras 14 and 20, it is observed as under:
"14. At the very outset, it has to be stated with authority
that the Pocso Act is a gender legislation. This Act has
been divided into various chapters and parts therein.
Chapter II of the Act titled "Sexual Offences Against
Children" is segregated into five parts. Part A of the
said Chapter contains two sections, namely, Section 3
and Section 4. Section 3 defines the offence of
"Penetrative Sexual Assault" whereas Section 4 lays
down the punishment for the said offence. Likewise,
Part B of the said Chapter titled "Aggravated
Penetrative Sexual Assault and Punishment therefor"
contains two sections, namely, Section 5 and Section
6. The various subsections of Section 5 copiously deal
with various situations, circumstances and categories
of persons where the offence of penetrative sexual
assault would take the character of the offence of
aggravated penetrative sexual assault. Section 5(k), in
particular, while laying emphasis on the mental stability
of a child stipulates that where an offender commits
penetrative sexual assault on a child, by taking
advantage of the child's mental or physical disability, it
shall amount to an offence of aggravated penetrative
sexual assault."
"20. Speaking about the child, a three Judge Bench in
M.C. Mehta v. State of T.N. (1996) 6 SCC 756 "1. ...
"child is the father of man". To enable fathering of a
valiant and vibrant man, the child must be groomed
well in the formative years of his life. He must receive
education, acquire knowledge of man and materials
and blossom in such an atmosphere that on reaching
age, he is found to be a man with a mission, a man
who matters so far as the society is concerned."
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:-
"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.
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
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."
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
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:"
"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."
54. On these lines, the Hon'ble Supreme Court in Shivasharanappa
and Others v. State of Karnataka, (2013) 5 SCC 705 observed
as follows:
"17. Thus, it is well settled in law that the court can rely
upon the testimony of a child witness and it can form
the basis of conviction if the same is credible, truthful
and is corroborated by other evidence brought on
record. Needless to say as a rule of prudence, the
court thinks it desirable to see the corroboration from
other reliable evidence placed on record. The
principles that apply for placing reliance on the solitary
statement of the witness, namely, that the statement is
true and correct and is of quality and cannot be
discarded solely on the ground of lack of corroboration,
apply to a child witness who is competent and whose
version is reliable."
55. The Supreme court in the matter of State of UP v. Sonu
Kushwaha, (2023) 7 SCC 475 has held as under :
"12. The POCSO Act was enacted to provide more
stringent punishments for the offences of child abuse
of various kinds and that is why minimum punishments
have been prescribed in Sections 4, 6, 8 and 10 of the
POCSO Act for various categories of sexual assaults
on children. Hence, Section 6,on its plain language,
leaves no discretion to the Court and there is no option
but to impose the minimum sentence as done by the
Trial Court. When a penal provision uses the
phraseology "shall not be less than....", the Courts
cannot do offence to the Section and impose a lesser
sentence. The Courts are powerless to do that unless
there is a specific statutory provision enabling the
Court to impose a lesser sentence. However, we find
no such provision in the POCSO Act. Therefore,
notwithstanding the fact that the respondent may have
moved ahead in life after undergoing the sentence as
modified by the High Court, there is no question of
showing any leniency to him. Apart from the fact that
the law provides for a minimum sentence, the crime
committed by the respondent is 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."
56. Upon careful and holistic appreciation of the entire oral and
documentary evidence available on record, this Court finds that
the testimony of the victim (P.W.-02) is consistent, coherent, and
inspires confidence. She has, at all material stages, stated that
the accused induced her to accompany him, removed her from
the lawful custody of her mother without consent, and thereafter
took her to Tamil Nadu, where she remained under his exclusive
control.
57. The evidence of the victim clearly discloses that during the period
of her stay with the accused, she was subjected to continuous
coercion and was not permitted to return to her parental home
despite her repeated requests. Her version regarding absence of
free will and existence of coercive circumstances remains
unshaken in cross-examination.
58. The statement of the victim recorded under Section 164 of the
Code of Criminal Procedure (Ex.P.-09) is consistent with her
deposition before the Court. In the said statement, she has
categorically stated that she was taken away without consent and
subjected to repeated sexual acts during the period of her custody
with the accused. The said statement, being voluntary and
recorded before a Magistrate, lends strong corroboration to her
testimony.
59. The testimonies of P.W.-01 (mother), P.W.-03 (sister), and P.W.-04
(uncle) collectively establish that the victim was removed from her
lawful guardianship and was subsequently traced and recovered
from Tamil Nadu in the company of the accused. Their evidence is
consistent on material particulars and remains substantially
uncontroverted.
60. The recovery of the victim from Tamil Nadu stands duly proved
through the recovery panchnama (Ex.P.-06) and the testimony of
the Investigating Officer (P.W.-16) as well as independent
witnesses. The evidence establishes that the victim was found in
the company of the accused at the relevant place of recovery,
thereby reinforcing the prosecution case regarding unlawful
removal and continued custody.
61. The medical evidence of Dr. Varsha Satpathy (P.W.-11), as
reflected in report (Ex.P.-08), indicates findings consistent with
past sexual activity. Although no fresh injuries were noted and no
semen was detected in the forensic report (Ex.P.-25), the medical
opinion, when read in conjunction with the oral testimony of the
victim and surrounding circumstances, supports the prosecution
version of prior sexual intercourse during the period of alleged
captivity.
62. The plea of consent taken by the defence does not appear to be
sustainable in view of the clear and consistent testimony of the
victim regarding inducement, removal from lawful guardianship,
and subsequent coercive circumstances. Considering the age of
the victim, such plea is further weakened and does not inspire
acceptance.
63. This Court further finds that the prosecution has successfully
established that the victim was a minor at the relevant time and
was taken away without the consent of her lawful guardian. The
continued custody of the accused over the victim at a place
outside the State further strengthens the inference of abduction
and unlawful restraint.
64. The testimony of the victim is of sterling quality and does not
suffer from any material contradiction or inherent improbability. It
stands duly corroborated by medical evidence, recovery evidence,
and the statements of close relatives of the victim.
65. In view of the settled legal position that conviction in sexual
offence cases can be based on the sole testimony of the victim if
found reliable, this Court is of the considered view that the
prosecution has succeeded in proving its case beyond reasonable
doubt.
66. 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.
67. It is stated at the Bar that the appellant is in jail. He shall serve out
the sentence as ordered by the trial Court.
68. 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.
69. Let a copy of this judgment and the original record be transmitted to
the trial court concerned forthwith for necessary information and
compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Manpreet
