1 2025:CGHC:4130 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 389 of 2020 Abhimanyu Giri S/o Rajinder Giri Aged About 23 Years R/o Village- Saskalo Dahidih, Police Station- Darima, District- Surguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh ... Appellant versus State Of Chhattisgarh Through District Magistrate. Ambikapur, District- Surguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Raja Sharma, Advocate For Respondent/State : Ms. Isha Jajodia, Panel Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 22/01/2025 1. The appellant has filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 27.12.2019, passed by learned Special Judge (Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act), Surguja, Ambikapur, in Special Sessions (Atrocities) VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.04.28 18:21:02 +0530 2 Case No. 35 of 2019, whereby the appellant has been convicted and sentenced as below:- Conviction Sentence Under Section 363 of IPC R.I. for 03 years and fine of Rs. 500/-, in default of payment of fine further R.I. for 06 months. Under Section 366 of IPC R.I. for 05 years and fine of Rs. 1000/-, in default of payment of fine further R.I. for 01 year. Under Section 342 of IPC R.I. for 06 months and fine of Rs. 200/-, in default of payment of fine further R.I. for 02 months. Under Section 376(2)(i) of IPC R.I. for 10 years and fine of Rs. 2000/-, in default of payment of fine further R.I. for 02 years. All sentences are directed to be run concurrently. 2. The case of the prosecution, in brief, is that the mother of the victim (PW-1) lodged a written complaint (exhibit P-1) to the police on 30.03.2019 with the allegation that on 21.03.2019, at about 3:00 PM, her minor daughter, aged about 07 years was being allured by the appellant for giving colour to her and took her to his house and committed rape upon her. After commission of the offence, he sent her and asked not to disclose the incident to anyone. On the next day of Holi festival, her neighbour informed about the incident and on the second next day of Holi festival, her daughter informed about the incident. She could not give any heed because of the reason that the children may have quarreled. When her daughter insisted, then she came to know about the incident and informed it to her husband. On 30.03.2019, when her husband had gone towards river, there was a quarrel between him and the appellant and her husband had 3 assaulted the appellant for which he lodged a report to the police and then the present incident is also reported. Based on the written report, the FIR (exhibit P-2) was registered against the appellant for the offence under Sections 376-A, 376-B, 363, 366, 342 of IPC and Sections 5(m), 6 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) and Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (in short ‘SC/ST Act’). The victim was sent for her medical examination to District Hospital, Ambikapur, where PW-10/Dr. Alakhnanda Tirkey examined her and gave her report (exhibit P-9A). The clothes of the victim have been seized by the police vide seizure memo (exhibit P- 4). The spot map (exhibit P-5) was prepared by the police and exhibit P-6 was prepared by the Patwari. Social status certificate of the victim has also been seized vide seizure memo (exhibit P-18) and the attested true copy of the social status certificate is exhibit P-12. The victim was referred for her radiological examination for determination of her age to District Hospital, Ambikapur, where PW-8/Dr. Sarita Singh radiologically examined her and gave ossification report (exhibit P-14). As per the ossification report, the radiological age of the victim is 6-8 years. The clothes of the victim were sent to Regional FSL, Ambikapur, Surguja for its chemical examination, from where report (exhibit P-22) was received and according to the FSL report, semen and sperms were found on the clothes of the victim. The appellant was arrested on 31.03.2019 and he too was sent for medical examination to Medical College, Ambikapur, where he was medically examined by PW-5/Dr. Mithilesh Minj, who gave his report (exhibit P-10). After medically examined the appellant, the doctor has 4 found that the appellant is physically fit for sexual intercourse. The statement of the witnesses under Section 161 of CRPC and statement of the victim under Section 164 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed against the appellant before the learned trial Court for the offence under Sections 376-A, 376-B, 363, 366 and 342 of IPC, Sections 5(m) and 6 of POCSO Act and Section 3(2)(v) of SC/ST Act. 3. The learned trial Court has framed charge against the appellant for the offence under Sections 363, 366, 342, 376(2)(i) of IPC, Section 5(m)/6 of POCSO Act and Section 3(2)(v) of SC/ST Act. The appellant denied the charge and claimed trial. 4. In order to prove the charge against the appellant, the prosecution has examined as many as 10 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded in which he denied the circumstances appearing against him, pleaded innocence and has submitted that he has been falsely implicated in the office. 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of the judgment. Hence this appeal. 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradiction in the evidence of prosecution witnesses and the same cannot be made basis to convict the 5 appellant in the offence in question. He would also submit that there is no sufficient evidence with respect to the age of the victim. There is delay in lodging the FIR and the delay has not been explained. No injuries have been found on the body of the victim. It is only when the appellant lodged a report against the father of the victim with respect to marpeet committed by him, the present report has been lodged subsequently. The victim is a tutored witness, who cannot be believed for conviction of the appellant. The evidence available on record suggests the false implication of the appellant and the victim has been made instrumental to save her father and therefore, in absence of any cogent and clinching evidence the appellant cannot be convicted and he is entitled for acquittal. 7. On the other hand, learned counsel for the State supporting the impugned judgment submits that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions, the evidence of prosecution witnesses is fully reliable and sufficient to hold guilty of the appellant in the offence in question. There is no reason for false implication of the appellant and no one can made instrumental of their minor daughter to settle their personal grudge. The victim has duly supported the prosecution’s case and is not a tutored witness. Although, there is no injury found on the body of the victim, but that itself is not sufficient to dilute the allegations made by her against the appellant. The evidence of the victim has duly supported by her parents and other witnesses. The age of the victim has not been specifically challenged by the appellant, yet her age has been proved by her ossification test report. In the FSL report, the 6 semen and sperms were found on the clothes of the victim, which further strengthen the prosecution’s case that the appellant committed rape upon her. Therefore, there are overwhelming evidence against the appellant, which has rightly been appreciated by the learned trial Court and his appeal is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the record of the trial Court. 9. Although the age of the victim has not been specifically challenged by the appellant, yet the prosecution has proved her age from the ossification test report (exhibit P-14), in which the age of the victim is opined in between 6-8 years. The said ossification test was conducted by PW-8/Dr. Sarita Singh at District Hospital, Ambikapur and after examining the various bone joints, she concluded the age of the victim in between 6-8 years. In cross-examination, though she admitted that there is possibility of variation of age of 2-3 years on either side, even then the victim was found to be minor. 10. So far as the offence of rape is concerned, the victim/PW-2 has stated in her evidence that the incident is of Falgun month, at the time of incident she had gone to the kitchen garden of her relative to eat berry, at that time the appellant came there, took her to his house by dragging and alluring to give her colour and after removing her clothes, committed rape upon her. After commission of rape, he sent her back asking not to disclose the incident to anyone. On the same day, she disclosed the incident to her elder sister and thereafter disclosed to her mother and father, thereafter, they lodged the report. 7 In cross-examination, she remained firm in saying that the appellant has committed rape upon her. Though she admitted that her father had assaulted the appellant, but she explained that he assaulted later on. She firmly denied the suggestion given by the defence that the appellant has not committed any offence with her. She also denied that she was tutored by her parents. From the evidence of this witness, it is clear that she is the witness of sterling quality and her evidence is sufficient to hold conviction of the appellant. 11. The sterling quality of witness has been defined in the judgment passed by the Hon'ble Supreme Court in the matter of “Santosh Prasad @ Santosh Kumar v. State of Bihar” reported in 2020 (3) SCC 443 and in Para 5.4.2 of its judgment the Hon'ble Supreme Court has held that:- “5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it is observed and held as under: “22 In our considered opinion, the “sterling witness” should be of a very high quality and calibre 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 8 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 every one 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 such similar tests to be applied, can it 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 9 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.” 12. In the matter of ““State of Himanchal Pradesh v. Sanjay Kumar @ Sunny” reported in 2017 (2) SCC 51, the Hon'ble Supreme Court in Para 30 and 31 has held that:- “30. By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which testimony of the prosecutrix is to be examined and analysed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one has to take stock of the realities of life as well. Various studies show that in more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within 10 than outside. Most of the time, acquaintance rapes, when the culprit is a family member, are not even reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting social stigma. Another deterring factor which many times prevent such victims or their families to lodge a complaint is that they find whole process of criminal justice system extremely intimidating coupled with absence of victim protection mechanism. Therefore, time is ripe to bring about significant reforms in the criminal justice system as well. Equally, there is also a dire need to have a survivor centric approach towards victims of sexual violence, particularly, the children, keeping in view the traumatic long lasting effects on such victims. 31. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of 11 rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance {See Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551}. Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.” 13. The evidence of the victim/PW-2 that the appellant took her to his house by alluring her that he will give her colour, which does amount to kidnap her as defined in Section 361 of IPC, which is punishable under Section 363 of IPC. Further, the appellant kidnapped the minor victim for illicit intercourse and committed rape upon her, therefore, there are sufficient ingredients for commission of the offence under Section 366 of the IPC against the appellant. 12 14. PW-1 is the mother of the victim, who stated in her evidence that on the date of incident at about 3:00 PM, her daughter had gone to eat berry in the kitchen garden of her relative. On the next day, her neighbour informed about the incident and when she asked for her daughter, she too disclosed the incident that the appellant took her inside his house by alluring that he will give her colour and has committed rape upon her. On the second next day, her elder daughter again informed about the incident and thereafter she disclosed the same to her husband. Subsequent to that, when her husband had gone to river in the next morning, he assaulted the appellant and then they lodged the report against him. In cross- examination, she admitted that she herself had not seen any incident and it is her daughter, who informed about the incident to her. She admitted that her husband has assaulted the appellant, but she denied that in order to save her husband from the said incident, they lodged a false report against the appellant. 15. PW-5/Dr. Mithilesh Minj, who medically examined the appellant, has found abrasion on his forehead and gave his report (exhibit P-10). From the evidence of PW-5, it is proved that injury was found on the body of the appellant, which corroborates the evidence that the father of the victim assaulted the appellant. There is no evidence on record about any previous quarrel between the appellant and the father of the victim and it is the evidence on record that, when the father of the victim came to know about the incident, he assaulted the appellant. It is a natural conduct of a father, who after coming into knowledge of 13 incident with her daughter shown her angerness against the accused. 16. The clothes of the victim seized in the case were sent for its FSL examination to Regional FSL, Ambikapur, from where the report (exhibit P-22) was received, in which the semen and sperms were found on the clothes of the victim, which also a corroborative evidence against the appellant. 17. Although no injury has been found on the body of the victim, but it is not necessary that in each and every case, the victim must have received injury on her body. 18. In the matter of “Satyapal v. State of Haryana” reported in 2009 (6) SCC 635, the Hon'ble Supreme Court has held in Para 18 that:- “18. In Modi's Medical Jurisprudence, 23rd edition, at pages 897 and 928, it is stated: "To constitute the offence of rape, it is not necessary that there would be complete penetration of the penis with emission of semen and the rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. … 14 * * * In small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and perineum.” 19. In the matter of “State of Punjab v. Gurmit Singh” reported in 1996 (2) SCC 384, the Hon'ble Supreme Court in Para 21 has held that:- “21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, 15 which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspirers confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” 20. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 16 21. The learned trial Court has after adverting the entire evidence available on record comes into conclusion in Para 58 of its judgment holding conviction of the appellant under Sections 363, 366, 342 and 376(2)(i) of the IPC and Section 5(m)/6 of POCSO Act and while sentencing the appellant in Para 62 of its judgment, the learned trial Court has sentenced the appellant for the offence under Section 376(2)(i) of IPC and no separate sentence under Section 5(m)/6 of the POCSO Act has been awarded in view of Section 42 of the POCSO Act. 22. Section 376(2)(i) of IPC has been omitted by the Criminal Law (Amendment) Act, 2018 (No. 22 of 2018) w.e.f. 21.04.2018. Prior to its omission, Section 376(2)(i) was there in the IPC as below:- “(i) commits rape on a woman, when she is under 16 years of age; or” 23. In the present case, the date of incident is 21.03.2019. On the date of incident, the provisions of Section 376(2)(i) was already omitted and was not in existence, therefore, no charge can be framed for the offence, even the appellant cannot be sentenced under Section 376(2)(i) of the IPC (as the provision was prior to amendment). Since the appellant has also been convicted for the offence under Section 5(m)/6 of the POCSO Act and the said provision is still in force, but there is an amendment in the said provision also by the Protection of Children from Sexual Offences (Amendment) Act, 2019 (No. 25 of 2019) w.e.f. 16.08.2019. It is relevant here to quote the provisions of 17 Section 6 of the POCSO Act in both the conditions i.e. before amendment and after amendment. Section 6 (before amendment) “Punishment for aggravated penetrative sexual assault- Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term, which shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable to fine.” Section 6 (after amendment) “Punishment for aggravated penetrative sexual assault- (1) Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term, which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the reminder of natural life of that person, and shall also be liable to fine, or with death. (2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.” 24. Considering the above provisions of Section 6 of POCSO Act prior to its amendment, the appellant is sentenced to R.I. for 10 years instead of sentencing him for the offence under Section 376(2)(i) of the IPC. The rest of the convictions and sentences of the appellant are hereby maintained. The conviction of the appellant for the offence under Section 376(2)(i) of IPC is altered into Section 5(m)/6 of POCSO Act. 18 25. In view of the foregoing reasons, I do not find any sufficient ground to interfere with the well-reasoned finding recorded by the learned trial Court holding conviction of the appellant for the alleged offence, and thus the appeal filed by the appellant, with the aforesaid alteration of conviction and sentence of Section 376(2)(i) of IPC into Section 5(m)/6 of POCSO Act, fails and is hereby dismissed. 26. The appellant is reported to be in jail since 31.03.2019. He shall serve the entire sentence awarded by the learned trial Court. 27. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his 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. 28. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved////