1 2025:CGHC:14065-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 514 of 2024 1 - Alim Khan S/o Late Salim Khan, Aged About 32 Years, R/o Ward No. 18, Sai Baba Gali, Tulsipur, Police Station City Kotwali, District Rajnandgaon (Chhattisgarh) ... Appellant versus 1 - State of Chhattisgarh Through The Arakshi Kendra, Kotwali, Rajnandgaon, District Rajnandgaon (Chhattisgarh) 2 - ABC Victim ... Respondents (Cause Title is taken from Case Information System) For Appellant : Mr. S.C. Verma, Senior Advocate with Mr. Manharan Lal Sahu, Advocate For State : Mr. Sakib Ahmed, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 24-03-2025 1. Present is a criminal appeal under Section 374(2) of the Cr.P.C. against the impugned judgment of conviction and sentence dated 12-12-2023 passed by the learned Additional Sessions Judge, Fast Track Special Court (POCSO) Rajnandgaon (C.G.) in Special Criminal (POCSO) Case No.33/2021 whereby the appellant has been convicted and sentenced in the following manner with a direction to run all the jail Digitally signed by MOHAMMAD AADIL KHAN 2 sentences concurrently:- Conviction Sentence U/s 354 D of the IPC R.I. for 2 years and fine of Rs.500/-, in default of payment of fine further R.I. for 1 month U/s 363 of the IPC R.I. for 3 years and fine of Rs.500/-, in default of payment of fine further R.I. for 1 month U/s 366 of the IPC R.I. for 5 years and fine of Rs.1,000/-, in default of payment of fine further R.I. for 2 months U/s 384 of the IPC R.I. for 2 years and fine of Rs.500/-, in default of payment of fine further R.I. for 1 month U/s 506-II of the IPC R.I. for 3 years and fine of Rs.500/-, in default of payment of fine further R.I. for 1 month U/s 376(3) of the IPC Rigorous Life Imprisonment till his natural death and fine of Rs.20,000/-, in default of payment of fine further R.I. for 1 year U/s 7/8 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) R.I. for 3 years and fine of Rs.500/-, in default of payment of fine further R.I. for 1 month U/s 5(l)/6 of POCSO Act Rigorous Life Imprisonment till his natural death and fine of Rs.20,000/-, in default of payment of fine further R.I. for 1 year 2. Brief facts of the case are that on 07-03-2021 the victim PW-5 gave a written complaint (Ex.-P/9) to the police with the allegation that in the month of April 2019, she introduced with the appellant, who was dropping the children in the school. Whenever he found her alone, he started teasing her and tried to outrage her modesty by alluring through various means. On 18-07-2020 also, when she was going to eat snacks in the lane, he caught her hand, and when she said that she will inform the incident to her parents, he fled away. The said incident was informed to her parents, and they had a talk with the parents of the appellant and then he confessed his guilt and assured that he will not 3 repeat the same. After some days, he again stalked her and started giving threatening to her that if she will not cooperate, he will defame her and ask her to do as per his wishes. She also gave Rs.17000/- to him on 24-02-2021, which she stole from the almirah of her mother, and when her mother asked about the same, she disclosed the entire incident to her also. He again demanded money on 02-03-2021, and thereafter, she made her complaint. Based on her written complaint Ex.- P/9, the FIR Ex.-P/5 was registered against the appellant for the offence under Section 354, 354D, 506 and 384 of the IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’). On 08-03-2021, an agreement/compromise deed (Article P/1C) was seized from the mother of the victim vide seizure memo Ex.-P/6, which was executed on 27-07-2020 between the appellant and his mother and parents of the victim in which the appellant has assured that he will not repeat the offence. On 08-03-2021 itself, the annual report card of the victim of KG-II was seized vide seizure memo Ex.-P/8 in which the date of birth of the victim is recorded as 02-04-2005. Another affidavit, Article P/2 was submitted by the mother of the victim to the police which was executed on 09-03-2021 in which she disclosed that her daughter was subjected to rape by the appellant. Spot map Ex.P/10 was prepared by the police. The victim was sent for her medical examination to District Hospital Rajnandgaon where she was medically examined by PW-1 Doctor Shweta Koumarya who after her examination gave report Ex.-P/1. While medically examining the victim the doctor did not notice any external injuries on her body and opined that no sign of forceful sexual intercourse seen at present. However, sexual violence 4 cannot be ruled out. The victim was advised for UPT, USG, and Abdomino-Pelvis Test and referred to Radiologist for age estimation. Four slides of her vaginal swab were prepared, sealed and handed over to police for its FSL examination. With respect to the age and date of birth of the victim the school register from Royal Kids Convent School, Lalbagh, has been seized vide seizure memo Ex.-P/2 and after retaining its attested true copy, the original register was returned back to the school. The attested true copy of the school register is Ex.-P/4C. The appellant was arrested on 08-03-2021 and total Rs. 8000/- cash has been seized from him vide seizure memo Ex.-P/13. The appellant was also sent for his medical examination to District Hospital, Rajnandgaon where he was medically examined by PW-7 Doctor Y.K. Tiwari who gave his report Ex.-P/14 and after his examination, the doctor opined that the appellant is mentally and physically fit to do sexual intercourse. An auto bearing No. CG 08 T 0476 has been seized from Kalim Khan vide seizure memo Ex.-P/28. The vaginal slides of the victim were sent for its chemical examination to State FSL, Raipur from where the report has been received and according to the FSL report, no human sperm were found on the vaginal slide of the victim. Statement of the witnesses under Section 161 of the Cr.P.C. and statement of the victim under Section 164 of the Cr.P.C. have been recorded and after completion of usual investigation chargesheet was filed before the learned trial Court for the offence under Section 354, 354D, 506, 384, 376(2) of the IPC, Section 4, 6 and 8 of POCSO Act and Section 39/192 of Motor Vehicles Act, 1988. 5 3. The learned trial Court has framed charge against the appellant for the offence under Section 354D, 354, 363, 366, 376(3), 342, 384 and 506 Part II of the IPC, Section 3/4 (2), Section 7/8 of POCSO Act. The appellant denied the charge and claimed trial. Vide order dated 08- 12-2023 the charge of Section 342 of the IPC was amended and in its place charge of Section 341 of the IPC is framed. On 10-07-2023 the additional charge of Section 376(2)(n) of IPC and Section 5(l)/6 of the POCSO Act have also been framed against the appellant. He denied all the charges and claimed trial. 4. In order to prove the charge against the appellant, the prosecution has examined as many as 11 witnesses. Statement of the appellant under Section 313 of the Cr.P.C. 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 offence. 4 defence witnesses DW-1 to DW-4 have been examined by the appellant in his support and relied on the document Ex.-D/1 to Ex.-D/9. 5. After appreciation of the 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 this judgment. Hence, this appeal. 6. Learned Senior Counsel appearing for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses and their evidence suffers from omissions and contradictions. There is no cogent and clinching evidence with respect 6 to the age of the victim that she was minor on the date of the incident. In the initial complaint made on 07-03-2021 lodged by the victim, there was no allegation of rape, but subsequently, the allegation of rape has been levelled by the victim as well as the witnesses. He would also submit that on 07-03-2021 a report was lodged against the victim with respect to the stolen of golden and silver ornaments and cash amount also in the house of DW-1 and the offence was registered against the victim in which she disclosed that she has given the said ornaments and cash amount to the appellant and in that case also the present victim has not made any allegation of rape against the appellant. He would also submit that in order to save the victim from the offence registered against her with respect to the stolen of golden and silver ornaments and cash amount, the present appellant has been made escape-goat by the witnesses and they have made allegations against him. He would further submit that no injuries have been found on the body of the victim and even there is no presence of sperm or semen on the vaginal slide of the victim which further proves that she was not subjected to sexual intercourse by the appellant. It is also submitted by him that since on the earlier occasion on 27-07-2020, there was an incident in which families of both parties compromised the matter and executed an affidavit, after that the appellant has never indulged in teasing, outraging modesty or committing rape upon the victim, yet, to encash the earlier incident, the present report has been lodged against him. There is no sufficient evidence against the appellant that he committed the alleged offence and therefore, he is entitled for acquittal. 7. On the other hand, learned counsel for the State opposes the 7 submission made by learned Senior Counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions, the evidence of prosecution witnesses are fully reliable. The age of the victim has been proved by the school register, Ex.-P/4C that she was minor on the date of the incident. The report lodged against the victim also corroborated the allegation raised against the present appellant that when he extorted money from the victim, she committed theft of golden and silver ornaments as well as cash from her relative’s house and gave it to the appellant only to save herself from the exploitation of the appellant. The cash amount of Rs.8000/- has been seized from the appellant. Although no injuries have been found on the body of the victim, and the FSL report is negative, that itself is not sufficient to hold that no offence has been committed by the appellant. The presence of injuries on the body of the victim depends upon the facts of each case and in every case it is not necessary that the victim must have received injuries on her body. The victim was a minor girl, sexually exploited by the appellant and he extorted money from her. All those allegations have been proved by the prosecution by leading cogent and clinching evidence and the learned trial Court has passed its judgment considering the entire evidence available on record and the law laid down by the Hon’ble Supreme Court applicable to the facts of the case, which needs no interference. 8. We have heard learned counsel for the parties and perused the record of the case. 9. The first and foremost question raises for consideration is the age of the victim as to whether she was minor or not on the date of the 8 incident. 10. The prosecution mainly relied upon the school register Ex.-P/4C which is sought to be proved by PW-2 who is the principal of Royal Kids Convent School, Rajnandgaon. He stated in his evidence that he had been the principal of the school since 10-01-2019. The police seized the school register with respect to the age and the date of birth of the victim and it was seized vide seizure memo Ex.-P/2. After retaining its attested true copy Ex.-P/4C, the original school register was returned back to him, he brought the same today with him. According to the school register the date of birth of the victim is recorded as 02-04-2005 and the signature of the then principal is there in the said register. In cross- examination, he admitted that the entries of the school register Ex.-P/4 are not in his handwriting. He further admitted that he could not tell as to on what basis the date of birth of the victim is recorded in the school register and there is no material annexed in the said school register to that effect. Another piece of evidence on which the prosecution is relied is the progress report card of KG-II of the victim which is Article P/3 in which also the date of birth of the victim is mentioned as 02-04-2005. 11. The victim PW-5 has stated in her evidence that her date of birth is 02-04-2005. The defence has not cross-examined the victim on the point of her age and date of birth. 12. PW-4, mother of the victim, has stated in her evidence that the date of birth of the victim is 02-04-2005. In cross-examination, she stated that at the time of the incident, her younger daughter/victim was a student of Class 7th. Her elder daughter is aged about 15 years. In 9 para 28 of her cross-examination, she admitted that with respect to Crime No.146/2021 for the offence under Section 457/380 of the IPC a criminal case is pending against her daughter at Juvenile Justice Board Rajnandgaon. In para 30, she stated that in the year 2021, her daughter was studying in Class 10th. In further cross-examination, she denied the suggestion given by the defence that at the time of her admission in the school, she has not given her birth certificate. She also denied that she had not given any document to the police which proves that the date of birth is 02-04-2005. She also denied that at the time of the incident, her daughter was major. 13. PW-8 who is the teacher/office superintendent of the school has stated that the school register has been seized by the police with respect to the date of birth of the victim vide seizure memo Ex.-P/2. In cross-examination, he stated that he did not know as to who had made entry in the school register, but he voluntarily stated that at the time of admission of the students in the school, they asked for their birth certificate and a form also filled up by their parents. 14. In the matter of Jarnail Singh Vs. State of Haryana, (2013) 7 SCC 263 the Hon’ble Supreme Court has considered that the age of a minor should have been considered in view of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. 15. Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides the manner in which age of a person can be determined which reads as under:- “94. Presumption and determination of age.—(1)Where, it is obvious to the Committee or the Board, based on the appearance of the person 10 brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2)In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining - (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3)The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 16. From the evidence led by the prosecution, it prima facie appears that it has been found proved that the date of birth of the victim is 02-04- 2025 and the appellant has not specifically challenged her date of birth, although he put certain suggestions in the cross-examination of the witnesses, but from the evidence of the victim he has not put any 11 question in her cross-examination with respect to her date of birth. The date of birth of the victim as shown by her mother, PW-4, is supported by the evidence of victim PW-5 and the entries made in the school register Ex.-P/4C and her K.G.-II progress report Card Ex.-P/3C. 17. Another important aspect of the matter is that the offence of Crime No.146/2021 is registered against the victim at Police Station City Kotwali, Rajnandgaon, for the offence under Section 457 and 380 of the IPC and a criminal case is pending against her before the learned Juvenile Justice Board, Rajanandgaon. A copy of the FIR (Ex.-D/9) has been filed by the defence itself. She was sent to Child Welfare Committee Rajnandgaon in which also her age was shown as 15 years and 11 months and the relevant document is Ex.-D/7. In her arrest memo Ex.-D/4 also her age is shown to be 16 years and it is admitted fact in the case that a criminal case is pending against the victim before the learned Juvenile Justice Board Rajnandgaon which itself shows that she was a juvenile. The said FIR in which she is facing criminal prosecution before the learned Juvenile Justice Board, Rajnandgaon in which offence of 02-03-2021 was reported and thus, it is undoubtedly proved by the prosecution that the victim was minor on the date of the incident and less than 18 years of age which has also been admitted by the defence by producing the FIR as well as other documents relating to the said FIR and also admitted that a criminal case is pending against her before the learned Juvenile Justice Board, Rajnandgaon. The finding recorded by the learned trial Court that the victim is minor and less than 18 years of age is based on proper appreciation of evidence, which is neither perverse nor contrary to the record. 12 18. The next question arises for consideration would be whether the offence has been committed by the appellant against the victim. 19. The victim PW-5 has stated in her evidence that she knew the appellant who is an auto driver and has taken the children to school. At the time when she was studying in Class 9th, the appellant was carrying her friends and other children to the school and since then she was introduced to him. He stalking her and despite her protest, he had not stopped his activities. On 18-07-2020 at about 07:00 p.m. when she was going to a snack cart to eat snacks and when she reached near lane No.4 the appellant wrongfully restrained her and tried to drag her by holding her hand, somehow she could save herself. The appellant had demanded money from her at that time. When she came back to her house and informed her mother, on 12-07-2020 her mother had gone to the house of the appellant to convince him and not to follow her daughter. The appellant confessed his guilt and assured that he will not repeat the incident. Despite that, he followed her and stalked her. He threatened her also that he would kill her family members and asked for sexual favour. On his demand, she gave Rs.17000/- cash after stealing from the almirah of her mother on 24-02-2021. When her mother asked about Rs.17,000/- which was missing from her almirah, she did not disclose about the same because she was very scared at that time. On being repeatedly asked by her mother she disclosed that she took Rs.17,000/- from her almirah and gave it to the appellant. Thereafter, her mother took her to City Kotwali Police Station on 07-03-2021 and lodged a report which is Ex.-P/9. On 17-08-2020 in the evening at about 07:30 p.m. when she was going to market near Ram Mandir, the 13 appellant stopped her. He was having knife in his hand and kidnapped her by using force and gagging her mouth by his auto. At that time his auto was driven by another person. He took her to an isolated place at Dongargaon Road. He committed rape upon her in the auto itself on the point of knife, and when she tried to protest he took her near Shahina Furniture shop and has made forceful sexual intercourse with her and after committing rape upon her, he threatened her that if she disclosed the incident to anyone he will kill her and her family members. He also stated that his friend had recorded obscene video of rape with her and that he will get it viral and asked not to disclose the incident to anyone. He also threatened that her mother had committed wrong by coming to his house and by preparing an agreement. She further stated that after committing the offence the appellant left her at the same place from where he had taken her. Since she was very scared, she did not disclose the incident to anyone. After the incident he repeatedly took her by his auto to his house and committed rape upon her repeatedly. She disclosed the incident of rape to her mother subsequently because she was afraid of by the threats given by the appellant. In cross-examination, she admitted that the first incident of rape occurred on 18-07-2020 and on the same day she disclosed the incident to her mother. She has not disclosed the incident of 17-08-2020 to any of her family members. She disclosed the place of the incident to the police and the police have prepared the spot map which is Ex.-P/10. Her mother has lodged a written complaint Ex.-P/9 to the police. She admitted that she was kept in Child Welfare Home and her counseling was also done there. During counselling, she was asked 14 about the offence of theft. She was also kept in Child Observation Home, Rajnandgaon for the offence of theft and the allegation of theft was levelled against her by her aunt. On the issue of theft and police investigation, her mother has scolded her that they are being defamed by the said act and police investigation. She admitted that she signed the document Ex.-D/3 without any pressure and on her own will. She also admitted that she was produced before the Juvenile Justice Board, Rajnandgaon in the theft case and sent her to Child Observation Home, Rajnandgaon. She also admitted that counselling was done there. She further admitted that when she was released on bail from the theft case the police enquired from her and her statement was recorded. The police enquired from her on 11-03-2021 and at that time she read over the affidavit dated 09-03-2021 Article P/2. She admitted that her 164 Cr.P.C. statement was also recorded in which she disclosed the name of her friend, who knows the fact that the appellant was stalking her, but she did not disclose about her friend in her police statement. She also admitted that in her police statement Ex.-D/4A there is no mention of any offence of rape with her by the appellant. She further admitted that she took the amount from her house on 24-02-2021 and after some days her mother came into knowledge about the theft of the cash amount. Her mother came into knowledge in the end of the month of February 2021 about the theft of the cash amount. In her 164 Cr.P.C. statement, she disclosed that the appellant regularly demanded money from her, therefore, on 24-02-2021 she took Rs.17,000/- from the almirah of her mother and gave it to the appellant. She also stated that she disclosed in her police statement Ex.-D/5 about 15 the incident of 17-08-2020 that the appellant kidnapped her by his aunt and on the point of knife he committed rape upon her, and his friend had prepared an obscene video of rape and threatened her that he would get it viral if she disclosed the incident to anyone, but if it is not there in her police statement Ex.-D/5, she could not tell the reason. She further stated that was the time of Covid 19 pandemic and there was no crowd in the road, she could not raise the alarm because the appellant had gagged her mouth. From the evidence of the victim, it has come that the victim was known by the appellant, he was stalking her and on 17-08- 2020 he kidnapped her by his auto which was driven by his friend. He gagged her mouth and committed rape upon her. Further, the obscene video had also been prepared by his friend and the appellant had threatened her that if she disclosed the incident to anyone he would make it viral and also kill her and her family members. He pressurized her to give money for which she took Rs.17,000/- from the almirah of her mother and gave it to the appellant. Although in the FIR she has not disclosed the incident of rape, but the fact and circumstances of the case clearly demonstrate that by the act of the appellant, she was under such extreme pressure that she was compelled to commit theft in her own house and gave cash amount to the appellant when her mother came into knowledge about the theft she afraid of, she could not disclose the incident to her mother. Further, at the same time, the FIR was registered against her for the commission of the offence of theft in the house of her aunt and she was sent to Child Welfare Home for the offence. When she came out from the child observation home she disclosed about the entire incident to her mother, and then another 16 affidavit was executed by her mother on 09-03-2021 (Article P/2). The manner in which the victim was exploited by the appellant sexually as well as mentally it cannot be expected from a girl of such a tender age that she came forward boldly and disclosed the entire incident in one instance, particularly in her social status. 20. Another aspect of the matter is that the FIR has been lodged against the victim PW-5 by her maternal aunt for the offence of Section 457 and 380 of the IPC which is Ex.-D/9. From the perusal of the FIR Ex.-D/9, it appears that the allegation was raised against the victim that on 03-03-2021 the theft was committed to her house in which certain golden ornaments and cash amount of Rs.3,500/- was stolen and she raised suspicion upon the victim because earlier also she has stolen the ornaments and gave it to the auto driver. The contents of document Ex.- D/3 of the said case of theft also reflect that the victim had repeatedly given amount to the appellant by committing theft in her house which also connects the appellant having relation with the victim and extorting money from her by putting her under fear that he will get her obscene video viral. 21. PW-4 who is the mother of the victim has stated in her evidence that she knew the appellant. He had taken the students to the school in which her daughter was also studying. On 18-07-2020 her daughter was dragged and she was asked for money by the appellant. When she asked her about the reason she did not disclose anything. When she repeatedly asked her she disclosed the incident that when she was going to the snack cart to eat snacks, on the way, the appellant caught her hand and tried to drag her. Somehow she could save herself, and at 17 that time she disclosed the identity, she had gone to the house of the appellant and tried to convince him in the presence of his family members and at that time he assured her that he would not repeat and would not stalk her daughter. An agreement was also executed in the stamp paper between them, which is annexed in the case as Article P/1. On 24-02-2021 Rs.17,000/- cash was missing from her almirah and when she asked her daughters she could not disclose the same. On repeatedly asked from the victim she disclosed about the incident and also disclosed that the appellant threatened her and demanded money from her by putting her in fear of killing her and then she took Rs. 17,000/- from her almirah and gave it to the appellant. On 02-03-2021 again he demanded money from her daughter and then she lodged the report to police on 07-03-2021. On the next day, her daughter disclosed that the appellant had made physical relations with her many times and she also disclosed the incident of 17-08-2020 in which she was subjected to forceful sexual intercourse by the appellant on the point of knife in the auto when he kidnapped her towards Dongargaon road in an isolated place. She also disclosed that on the issue of sexual intercourse, he demanded money from her and threatened her repeatedly. Thereafter, she again gave another affidavit Article-P/2 to the police which is also annexed in the case. In cross-examination, she admitted that she had lodged the complaint to the police on 07-03-2021 Ex.-P/9 and she admitted that the incident of 18-07-2020 was reported on 07-03-2021, which is after about 8 months of the incident. She further stated that the incident of 18-07-2020 came to her knowledge at the same time when her 18 daughter disclosed about the incident. When she came into knowledge of the incident of 18-07-2020 she had gone to the house of the appellant to protest the same. On 20-07-2020 there was a meeting convened in the presence of the community and family persons of the appellant and when the mother and other family members of the appellant asked to forgive, she could not lodge the report on the same day, but she was inclined to lodge the report on the same day itself. Her 164 Cr.P.C. statement was also recorded and she disclosed about the agreement Article-P/1, but she has not disclosed any detail in her 164 Cr.P.C. statement about the same. On 29-07-2021 or 30-07-2021 she came to know about the theft of Rs.17,000/- from her almirah and when she enquired from her daughters she came to know about the other incident with the victim. The complainant who has lodged the report against the victim is her cousin sister. On 02-03-2021 there was a dinner programme in the house of one of their known person and her entire family members had gone there. She admitted that her cousin sister had lodged a report against the victim at Kotwali Police Station, Rajnandgaon with respect to theft, which was committed on 02-03-2021 and an offence has been registered against the victim. She was taken into custody on 07-03-2021 itself at about 10:00 p.m. by the police. Since Rs.17,000/- was stolen by her own daughter, she has not lodged any report against the said incident. Her daughter has committed theft in her own house because the appellant was blackmailing her. She disclosed in her 164 Cr.P.C. statement about the theft of Rs.17,000/- from her house by the victim and gave it to the appellant and if it is not in her statement Ex.-D/1 she could not tell the reason. She admitted 19 that a criminal case is pending against her daughter before the learned Juvenile Justice Board, Rajnandgaon for the offence under Sections 457 and 380 of the IPC. In the said criminal case a confessional statement of the victim was recorded. In her confessional statement, she has not disclosed about the incident of rape with her. She voluntarily stated that when she repeatedly asked her daughter about the theft of money repeatedly from her house she disclosed the entire incident including rape also. The victim disclosed the incident on 08-03- 2021.She further stated that her daughter had disclosed to her that on 17-08-2020 the appellant took her from Baldevbag to Dongargaon Road and committed rape upon her. She was cross-examined about the presence of persons on the way and she disclosed that it was the time of about 07:30 in the night and since it was a time of Covid 19 pandemic there may be absence of persons there. She voluntarily stated that her daughter was kidnapped on the point of knife and by gagging her mouth as the auto was driven by another person. From the evidence of this witness also the evidence made by the victim PW-5 is corroborated. Although in her written complaint there is no mention of the offence of commission of rape against the victim, but she disclosed that she came into knowledge about the offence of rape later on when she repeatedly asked from the victim. As we have already discussed hereinabove, that the victim was in such mental pressure by the act of the appellant; she did not disclose the incident immediately at the time when her mother asked her about the incident and she disclosed the incident later on. 22. PW-9 who is the witness to seizure memos Ex.-P/6 and Ex.-P/13, 20 has stated in his evidence that the police have seized the cash amount and ornaments from the appellant vide seizure memo Ex.-P/13. He admitted signature on Ex.-P/13 as well as Ex.-P/6. When the leading question was asked from him he did not support the seizure memo vide Ex.-P/6. He has made his signature on both these documents at the police instance. 23. PW-11 is the Investigating Officer of the case, who has stated in her evidence that on 08-03-2021 she recorded the statement of the victim and her mother and prepared the spot map Ex.-P/10. She proved the procedure that she adopted during the investigation and the documents that she drew during the investigation of the case. In cross- examination, she stated that on 07-03-2021 at about 7 – 7:30 p.m., the victim and her mother were present in the police station City Kotwali, Rajnandgaon. She admitted that on 07-03-2021 the offence under Section 457 and 380 of the IPC was registered against the victim which was recorded in rojnamcha sanha No. 7 as Crime No.146/2021 which was registered on the complaint made by the aunt of the victim. The said incident was reported to have occurred between 02 and 03-03- 2021. She also admitted that the offence against the appellant in Crime No.147/2021 for the offence under Section 354, 354D, 506 and 384 of the IPC and Section 8 of the POCSO Act have also been registered. She received the case diary on 08-03-2021 for its investigation. She admitted that on 07-03-2021 after registration of the FIR in both the cases of Crime No.146/2021 and 147/2021, the victim had returned back to her house along with her family members and on the next day, i.e., 08-03-2021 she recorded their statement. While recording her 21 statement, she was not found in scary condition, when she asked the victim, she disclosed that the appellant threatened her that if she will not give him money he would kill her and her family members. She also admitted that the family members of the victim have not lodged any report with respect to extortion. She further admitted that the mother of the victim has stated in her statement Ex.-D/2 and has disclosed that she had gone to the house of the appellant to convince him on 20-07- 2020 and he gave in writing that he will not repeat his act in future. She further admitted that the said agreement was not executed on 20-07- 2020, but it was dated 27-07-2020. She denied that she had not seized the cash amount of Rs.8000/- from the appellant. In further cross- examination, she admitted that on 08-03-2021 when she recorded the statement of the victim and her mother they have not disclosed that the victim suffered by the offence of rape and obscene video has also been prepared and when on 13-03-2021, the statement was again made by the victim and her mother and the incident of 17-08-2020 with respect to rape upon the victim is disclosed, and she voluntarily stated that when she asked about the incident to her mother and the victim, they disclosed her that due to shame and family reputation, they did not disclose the incident to anyone. Since 08-03-2021 the victim and her mother have not disclosed the incident which has been disclosed subsequently, she recorded another statement of the victim and her mother on 13-03-2021. She further voluntarily stated that on 13-03-2021 it has been disclosed by the victim that on 08-03-2021 she disclosed the incident to her mother about rape with her, but the same has not been disclosed by her mother in her police statement dated 08-03-2021. She 22 further admitted that the mother of the victim has filed her affidavit Article-P/2 before the police station which is dated 09-03-2021 and based on the said document Article-P/2 the second statement of the victim and her mother have been recorded. Copy of the said affidavit was also annexed with the charge sheet and in the said affidavit Article- P/2 it has been disclosed that when they returned back from the police station on 08-03-2021 the victim disclosed the incident of rape to her mother. It is the answer to the fact that on 08-03-2021 there is no mention of the incident of rape in their statement. On 08-03-2021 when the victim and her mother were at the police station the victim has not disclosed the incident of rape with her when they returned back to their house in the night she disclosed about the incident to her mother that she was subjected to rape by the appellant repeatedly and then on 09- 03-2021 the affidavit Article-P/2 was got executed by mother of the victim which was given to police and their statement was recorded in which they disclosed about the incident of rape. It is quite possible that on 08-03-2021 when the victim has not disclosed about the incident of rape obviously the same was not there in her statement dated 08-03- 2021. From elaborate cross-examination of this witness, she remained firm in the process of her investigation which she conducted during the investigation. But for minor contradictions, nothing is there which makes her evidence doubtful or the credibility of this witness can be suspected. The omissions or contradictions came in her evidence are trivial in nature which does not affect substantial allegations in the case. 24. The defence has examined 4 witnesses in his support, DW-1 who 23 is the aunt of the victim who lodged the report against her with respect to theft of ornaments from her house. She stated in her evidence that on the intervening night of 02 and 03-03-2021, the theft was committed in her house and her golden ornaments and cash Rs.3,500/- were stolen by someone. She informed the incident to parents of the victim on their mobile phone and raised suspicion upon the victim because she remained absent for some time from the place where they gathered for dinner. When she asked the mother of the victim to get her ornaments back if her daughter had taken the same, then the mother of the victim disclosed that her ornaments had been given to a Mohammedan person by her daughter and she would return her ornaments later on. Since the mother of the victim had assured her that she would return her ornaments, she has not lodged any report on that day and when her ornaments were not returned by her, she lodged her report on 07-03- 2021 which is Ex.-D/9. In cross-examination, she admitted that she came to know later on that the victim had given her ornaments to an auto driver and she also given the articles of her house after committing theft in her own house. With respect to the present incident, the evidence of this witness does not affect the credibility of the allegation levelled by the victim against the appellant rather, it supported to some extent that the appellant was having relation with the victim for which she alleged that the appellant extorted money from her which she has given on various occasions and in the report lodged by this witness, DW-1 it reflects that she came to know that the victim after committing theft in her house given it to the appellant, although the said allegation was subject matter of the Crime No.146/2021 for which a criminal case 24 is pending before the learned Juvenile Justice Board, Rajnandgaon. 25. 25. DW-2 is younger brother of the appellant before whom the auto was seized vide memo Ex.-P/28. His evidence as defence witness is also not having much significance as he did not speak any substantive which relates to the present case except denial that his brother has not committed any offence. 26. DW-3 is also the cousin brother of the appellant. He too is a witness similar to DW-2, both these witnesses are the witnesses with respect to the seizure of auto Ex.-P/28 and denied that his brother has committed any offence. 27. DW-4 is Assistant Sub-Inspector of police, who investigated the offence of Crime No.146/2021 against the victim for the offence under Section 457, 380 and 34 of the IPC and stated that on the same time offence of Crime No.147/2021 for the offence under Section 354D, 506, 384, 376(2) of the IPC and Section 4, 6 and 8 of POCSO Act have also been registered against the appellant. He is the procedural witness of the investigation in the offence of Crime No.146/2021 in which the charge sheet was filed before the Juvenile Justice Board Rajnandgaon. 28. From the aforesaid evidence the victim has a status of the witness of that sterling quality on which the appellant can be convicted. The sterling witness has been considered by the Hon’ble Supreme Court in the matter of Santosh Prasad @ Santosh Kumar v. State of Bihar, 2020 (3) SCC 443, which is reproduced herein below: “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 25 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 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 26 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 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.” 29. In the matter of State of H.P. Vs. Sanjay Kumar alias Sunny, (2017) 2 SCC 51 the Hon’ble Supreme Court has held in para 30 and 31 as under:- “30. …….. 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 than outside. Most of the time, acquaintance rapes, when the culprit is a 27 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 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, 28 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.” 30. In the matter of State of Punjab Vs. Gurmit Singh, reported in (1996) 2 SCC 384, the Hon’ble Supreme Court has observed in para 21 of its judgment that:- “21. …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, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires 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 he 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.” 29 31. In the matter of Prahlad and another Vs. State of Haryana, 2015 (8) SCC 688 the Hon’ble Supreme Court has observed in para 17and 18 that:- “17. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of IPC but also the right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitations. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Article 14 and right to life under Article 21 of the Constitution, for they are the “fons juris” of our Constitution. The said rights are constitutionally secured. 18. Therefore, regard being had to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. The perpetrators of the crime must realise that when they indulge in such an offence, they really create a concavity in the dignity and bodily integrity of an individual which is recognised, assured and affirmed by the very essence of Article 21 of the Constitution.” 30 32. 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 may be some contradictions and omissions in the statement of the victim and her parents. The law is well settled that in the case of rape, conviction can be maintained even on the basis of the 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 levelled against the appellant beyond any reasonable doubt, in which the prosecution has succeeded in doing in the instant case. 33. For the foregoing reasons, we do not find any ground to allow the appeal filed by the appellant. There is sufficient evidence against the appellant to prove that he committed the offence and the learned trial Court has rightly convicted and sentenced him for the alleged offence which does not warrant any interference. In the result, the appeal fails and is hereby dismissed. 34. The appellant is stated to be in jail since 08-03-2021. He shall serve out the remaining part of the sentence as has been awarded to him by the learned trial Court. 35. The Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentences to serve the same on the appellant informing him that he 31 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. 36. Record of the trial Court be sent back along with copy of this judgment for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Aadil