1 2025:CGHC:2431-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 351 of 2021 Piyush Mishra S/o Raghvendra Mishra Aged About 37 Years R/o Housing Board, Lalbagh, Jagdalpur District Bastar, Chhattisgarh. Permanent Address Adarsh Nagar, Police Station Kolgawan (Kolgama Wrongly Mentioned In Order Sheet), District Satna, Madhya Pradesh, ... Appellant versus State Of Chhattisgarh Through Police Station Bodhghat, District Bastar, Chhattisgarh ... Respondent For Appellant : Mr.Alok Kumar Dewangan and Mr.P.R.Patankar, Advocates For Respondent : Mr.Sanghrash Pandey, Government Advocate Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, CJ 15/01/2025 1. This criminal appeal arises out of the judgment of conviction and order of sentence dated 29.01.2021 passed by the Additional Sessions Judge (F.T.C.), Bastar at Jagdalpur in Special Sessions BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.01.16 18:06:23 +0530 2 Case No.45/2019, whereby the appellant has been convicted for offence under Section 376 (3) of the Indian Penal Code (hereinafter called as ‘IPC’) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as ‘POCSO’) and sentenced to undergo RI for 20 years and fine of Rs.10,000/-, in default of payment of fine to further undergo RI for 6 months. 2. The prosecution story, in brief, is that on 24.08.2019 the prosecutrix without the knowledge of her parents left her house in the night and travelling through bus reached Jagdalpur in the morning. There she met one unknown person and with his help hired rental home which belongs to unknown person relative Kamli Baghel, there the prosecutrix stayed. When Kamli Baghel was not at home, on 29.08.2019 at about 1:30 P.M. the unknown person came and committed rape with the prosecutrix. The prosecutrix (PW-2) beat him and after fighting came out and told the people in the neighbourhood, then those people called the Child Line and the prosecutrix (PW-2) went with them. The Child Line took her to the Balika Grih from where the Juvenile Justice Board, Jagdalpur directed the Police Station Bodhghat on 4.9.2019 to register the FIR in connection with the crime committed against the the prosecutrix (PW-2). In view of which, on 6.6.2019, on the basis of written complaint of the prosecutrix (PW-2) Ex.P-2, Crime No.216/2019 under Section 376 of the IPC and Section 4 of the POCSO Act was registered at Police Station 3 Bodhaghat vide Ex.P-3. With the consent of the prosecutrix (PW- 2) and the the prosecutrix mother, the prosecutrix genital examination was conducted at Maharani Hospital, Jagdalpur vide Ex.P-1. Spot map was prepared by the investigating officer vide Ex.P-5. The patwari also prepared the spot map vide Ex.P-7. The statement of the prosecutrix under Section 164 CrPC was recorded by the JMFC, Jagdalpur vide Ex.P-8. Two vaginal slides and vaginal swab were seized vide Ex.P-10. Dakhil kharij register in which the date of birth of the prosecutrix has been mentioned as 14.06.2003 was seized vide Ex.P-12. Ossification test of the prosecutrix was conducted and as per radiologist report (Ex.P-14), she is above 13 years & below 16 years. The appellant was also examined by Dr.S.S.Raj (PW-8) vide Ex.P-15. The appellant was arrested on 28.09.2019 vide arrest memo (Ex.P-18). Vaginal swab (Article A) and vaginal smear (Article) seized from the proseuctrix were sent to FSL for examination and as per FSL report (Ex.P- 23), semen stains and human sperm were not found in Articles A and B1. 3. After completion of investigation, charge-sheet was filed before the jurisdictional Court under Section 376 of the IPC and Section 6 of the POCSO Act. 4. The trial Court has framed the charges under Section 376(3) of the IPC and Section 4 of the POCSO Act against the appellant. 4 5. In order to establish the charge against the appellant, the prosecution examined as many as 11 witnesses and exhibited 24 documents. The statement of the appellant under Section 313 of CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted and sentenced the appellant as mentioned in para 1 of this judgment. Hence, this appeal. 6. Learned counsel for the appellant submits that conviction of the appellant is bad, illegal and improper because learned trial Court has erred in considering the statements of the witness who favoured the appellant and thus adopted pick and choose method to anyhow convict the appellant. The age of the prosecutrix is more than 16 years according to date of birth 14.06.2003 mentioned in her dakhil kharij register. Moreover, on the date of incident the prosecutrix was studying in class X as per the prosecution story and she was traveling alone in bus, was searching rental home for herself, itself shows that the prosecutrix was fully mature and the actual cause of leaving the parental house, taking rental house, going for work along with another boy, delay of 9 days in lodging FIR against the present appellant, itself indicates that actual story is something else and not as projected by the prosecution. They further submit that the appellant had been falsely implicated in the alleged commission of offence. 5 Moreover, medical evidence is not supported the case of the prosecution. There is no external injury in private parts of the prosecutrix. Moreover, according to statements recorded by the trial Court, the parents of the prosecutrix were demanding money from the appellant, but when the appellant and his family members failed to fulfill their demand, the appellant was falsely implicated in the case. There is neither external nor internal injury on the body of the prosecutrix nor any mark of resistance on her part. In fact, medical evidence did not support the case of the prosecution nor the doctor who examined the prosecutrix gave any opinion regarding the alleged commission of offence with her. There is no legally admissible evidence in support of age of the prosecutrix showing her to be minor on the date of incident. They also submit that there is delay in lodging the FIR and no plausible explanation was offered by the prosecutrix for delay in lodging the FIR. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 7. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellant and submits that the trial Court has rightly convicted and sentenced the appellant, in which no interference is called for by this Court. 8. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 6 9. The prosecutrix in her 164 CrPC statement (Ex.P-8) has stated that the incident is of 29.08.2019. She left her house alone in anger on 24th August, 2019. She boarded a bus to Jagdalpur and reached Jagdalpur bus stand, there she asked a person where she could find a house for rent, then he said that he would find it. He took her to his relative Kamli Baghel’s house and left her there. She used to work in Kamli Baghel’s house, then that person came on 29th in the afternoon, at that time there was no one in Kamli Baghel’s house except her. He forcefully had physical relations with her. She screamed but no one came. Then he left, then she told her neighbours, then the neighbors called the Child Line. Then they came to the police station. She will recognize that person by looking at him. That person seems to be Gokul Baghel’s brother-in-law. 10.The prosecutrix has been examined as PW-2. In para 1 of her statement, she has stated that she recognize accused Piyush Mishra @ Golu. Her date of birth is 16th June, 2003. The incident is of 28.9.2019. On 24.08.2019 she came to Jagdalpur by bus from her home and asked accused Piyush who was standing near the road to find a house for rent, then accused said that he would find a house for rent and took her to his relative’s house and told her to stay there. The name of the said relative of the accused was Kamli. The accused left her there and went away. On 28.09.2019 Kamli was not at home and she was alone, then the accused came home in the afternoon and raped her forcefully. 7 She was refusing the accused, but still the accused raped her forcefully and after that he left the house. She went and told the neighbours about the incident, then they called the Child Line people, then the Child Line people came and took her to the Police Station. In para 2, she has stated that she had made a written complaint about the incident in the police station, the said written complaint is Ex.P-2. At the time of making the complaint, she did not know the name of the accused, so she did not mention the name of the accused in the complaint. The First Information Report on the basis of written complaint is Ex.P-3. In para 9 of her cross-examination, she has denied that the accused has not done anything wrong to her. She has also denied that she has filed a false report against the accused and his family members to get money from them. 11.Dr.Govind Singh (PW-6) who was conducted ossification test of the prosecutrix (Ex.P-14) has stated in para 3 of his examination- in-chief that according to the appearance and joining of the ossification centers of all the above bones, he found the age of the victim to be above 13 years and below 16 years. The x-ray report given by him is Ex.P14. In para 4 of his cross-examination, he has admitted that diet, environment and social environment affect the development of bones. He has also admitted that there can be a variation of three years in the age of appearance and joining of ossification center of bones and he has prepared the report on the basis of variation of three years. 8 12.Headmaster Mehattarram Baghel (PW-5) has stated in para 2 of his evidence that today he is present with original dakhil kharij register No.4, in which number 596, the name of the prosecutrix’s father is mentioned as Sakruram Patel, mother’s name as Smt.Gunbati, date of birth of the prosecutrix as 14.06.2003 and the prosecutrix took admission in school in class 1 on 3.7.2009 and left the school after passing class 5 on 16.06.2014. The verified copy of the dakhil kharij register attached in the case was compared with the original. The original dakhil kharij register is Article-1 and verified copy attached in the case is Article 1C. 13.In the Indian society refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non- permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self- inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in 9 a rape case. The observations of Vivian Bose, J. in Rameshwar v. The State of Rajasthan (AIR 1952 SC 54) were: “The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge...”. 14. 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 Court, therefore, shoulders 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, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires 10 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. This position was highlighted in State of Punjab v. Gurmeet Singh, (1996 (2) SCC 384). 15. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or practice incorporated in the Indian Evidence Act, 1872 (in short ‘Evidence Act’) similar to illustration (b) to 11 Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. 16. The Supreme Court in the matter of Ranjit Hazarika v. State of Assam reported in AIR 1998 SC 635 has held that the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. 12 17. The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of NCT of Delhi, 2012 (8) SCC 21 held as under:- “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 13 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.” 18. As per the statement of the prosecutrix (PW-2), she has stated that she recognize accused Piyush Mishra @ Golu. Her date of birth is 16th June, 2003. The incident is of 28.9.2019. On 24.08.2019 she came to Jagdalpur by bus from her home and asked accused Piyush who was standing near the road to find a house for rent, then accused said that he would find a house for rent and took her to his relative’s house and told her to stay there. The name of the said relative of the accused was Kamli. The accused left her there and went away. On 28.09.2019 Kamli was not at home and she was alone, then the accused came home in the afternoon and raped her forcefully. She was refusing the accused, but still the accused raped her forcefully and after that he left the house. She went and told the neighbours about the incident, then they called the Child Line people, then the Child 14 Line people came and took her to the Police Station. In para 2, she has stated that she had made a written complaint about the incident in the police station, the said written complaint is Ex.P-2. At the time of making the complaint, she did not know the name of the accused, so she did not mention the name of the accused in the complaint. The First Information Report on the basis of written complaint is Ex.P-3 19.Considering the evidence of the prosecutrix (PW-2) who has specifically stated the act of the appellant, evidence of Dr. Govind Singh (PW-6), further considering the ossification test report of the prosecutrix (Ex.P-14), the material available on record and the law laid down by the Supreme Court in the above-stated judgments, we are of the considered opinion that the learned Special Judge has rightly convicted the appellant for offence under Section 376 (3) of the IPC and Section 4 of the POCSO Act. We do not find any illegality and irregularity in the findings recorded by the trial Court. 20.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 Special Judge to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 15 21. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 22. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance. 23. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his 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 the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Bablu