1 2025:CGHC:9316-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 500 of 2021 Vijay Kumar Nageshiya, S/o Shivnath Nageshia, Aged About 21 Years R/o Village - Chilma, Police Station - Pasta, District - Balrampur - Ramanujganj Chhattisgarh., District : Balrampur, Chhattisgarh ... Appellant versus State of Chhattisgarh Through - Police Station - Pasta, District - Balrampur - Ramanujganj Chhattisgarh., District : Balrampur, Chhattisgarh ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Bhupendra Singh, Advocate For Respondent-State : Mr. Hariom Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 24.02.2025 1. Heard Mr. Bhupendra Singh, learned counsel for the appellant as well as Mr. Hariom Rai, learned Panel Lawyer appearing for the State/respondent. 2. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) arises out of the judgment of conviction and order of sentence dated 11.10.2021 passed by the ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.02.24 16:55:29 +0530 2 Additional Sessions Judge/Special Judge (POCSO/F.T.C.), Ramanujganj, District Balrampur-Ramanujganj (C.G.) in Special Sessions Case (POCSO) No.41/2014, whereby the accused-appellant has been convicted and sentenced as under :- Conviction Sentence Under Section 363 of the Indian Penal Code, 1860 Rigorous imprisonment for 5 years and fine of Rs.5000/-, in default of payment of fine amount, additional rigorous imprisonment for 3 months. Under Section 366 of the Indian Penal Code, 1860 Rigorous imprisonment for 5 years and fine of Rs.5000/-, in default of payment of fine amount, additional rigorous imprisonment for 3 months. Under Section 506 of the Indian Penal Code, 1860 Rigorous imprisonment for 1 year and fine of Rs.2000/-, in default of payment of fine amount, additional rigorous imprisonment for 1 month. Under Section 342 of the Indian Penal Code, 1860 Rigorous imprisonment for 1 year and fine of Rs.2000/-, in default of payment of fine amount, additional rigorous imprisonment for 1 month. Under Section 4 of the Children from Sexual Offences Act, 2012 Life imprisonment and fine of Rs.10,000/-, in default of payment of fine amount, additional rigorous imprisonment for 6 months. All the sentences were directed to run concurrently 3. The prosecution story, in brief, is that, the victim (PW-1) of the incident appeared at Police Station and submitted a written complaint (Ex.P/1) to the effect that on the night of 13.09.2017, she was studying after having dinner, at that relevant time, about 09:00 PM, the accused 3 came to her house and knocked on the window, asked for water. On the pretext of drinking water, when she was giving water, he caught hold of her hand and stated that if she makes a noise then he will kill her, dragged her to his house and forcibly had physical relations with her. He kept her in the custody for three days in the house as also he took her around the forest after two days. Thereafter, while leaving her, he threatened her to kill if she stated anyone or reported the matter to the Police Station. He also threatened to kill her maternal grandfather, maternal grandmother, maternal uncle and mother and throw them away. On the basis of written complaint (Ex.P/1), Police of Police station Parata registered a First Information Report (Ex.P/2) under Crime No.59/2017 for the offence punishable under Sections 363, 366, 506, 342 and 376 of the Indian Penal Code, 1860 (for short, “IPC”) and Sections 4, 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”) and started investigation. 4. During the investigation, after reaching the spot and seeing the spot as told by the victim in the presence of witnesses, a visual map of the spot was prepared vide Ex.P/4. After giving consent of the victim (Ex.P/3) as also from her grandfather Devdhari (PW-2) vide Ex.P/6 for examination of the private parts of the victim, the victim was taken to Block Medical Officer, Community Health Centre, Rajpur along with a letter (Ex.P/13) for getting the private parts of the victim examined by a lady doctor, on which Dr. A. Kachhap (PW-10) conducted a medical examination of the victim and gave a detailed investigation report vide Ex.P/12. A letter (Ex.P/18) was written to the Judicial Magistrate First 4 Class, Rajpur for getting the statement of the victim recorded under Section 164 of the Cr.P.C. and the statement of the victim was recorded vide Ex.P/5. On the same day, a letter was written to the Chairman/Member of Bal Kalyan Samiti Balrampur to record the statement of the victim and provide a copy of the same. In order to obtain the Patwari's Nazri Naksha, a letter was written to the Tehsildar Balrampur vide Ex.P/17, on which the map of the incident site was prepared vide Ex.P/11. A letter (Ex.P/20) was sent to the Headmaster, Government Pahari Korwa Ashram Chilma for providing the attested copy of the school's admission-rejection register related to the victim, the same was seized vide Ex.P/8C vide property serizure memo Ex.P/7. The accused was taken into custody and arrested in front of witnesses vide Ex.P/15 and information about his arrest was given to his family members vide Ex.P/16. 5. The statement of the victim and witnesses was recorded. Two slides were prepared from the vaginal secretion of the victim in a sealed packet and pubic hair of the victim was also seized in a sealed packet vide Ex.P/14. The articles were brought from the Community Health Centre, Rajpur by Lady Constable No.874 Alma Tirkey. Thereafter, the sealed packet related to the victim was sent for chemical testing to Joint Director Regional Forensic Science Laboratory Ambikapur, Surguja, Chhattisgarh through Superintendent of Police Balrampur, in relation to which the acknowledgment was obtained vide Ex.P/21 and the FSL report received subsequently vide Ex.P/22. 5 6. After completion of investigation, charge-sheet was filed before the jurisdictional Court under Sections 363, 366, 506, 342, 376 of the IPC and Sections 4 and 6 of the POCSO Act. 7. The trial Court has framed the charges under Sections 363, 366, 506, 342 of the IPC and Section 4 of the POCSO Act against the appellant. 8. In order to establish the charge against the appellant, the prosecution examined as many as 12 witnesses and exhibited 22 documents. The statement of the appellant under Section 313 of Cr.P.C. was also recorded, in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in paragraph-2 of the judgment. Hence, this appeal. 9. Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence passed by the learned trial Court is bad in law. There is no evidence against the appellant and the case of the prosecution is based on surmises, so the appeal be allowed and the appellant be acquitted. He further submits that the learned trial Court has erred in believing the statement of the prosecutrix because there is large large number of contradictions amongst the statement of the prosecution witnesses. There is no legally admissible evidence in support of age of the prosecutrix showing her to be minor on the date of incident. He also submits that no ossification 6 test of the prosecutrix was conducted to ascertain her exact age. Thus, there is no authentic proof of age of the prosecutrix. There is delay in lodging the FIR and no plausible explanation was offered by the prosecutrix for delay in lodging the FIR. He lastly submits that the trial Court has awarded the sentence of life imprisonment, which would mean imprisonment for rest of the natural life which is too harsh considering the evidence available on record and the same may be converted to rigorous imprisonment for 20 years. As such, the appeal deserves to be allowed in full or in part. 10. 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. 11. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 12. The prosecutrix in her 164 Cr.P.C. statement (Ex.P/5) has stated that she has studying in Class VIII. She lived with her mother, maternal uncle, maternal aunt and maternal grandmother. She further deposed that the incident happened on 13.09.2017 when she was sleeping in her house at 09.00 PM, a boy named Vijay came and asked for water. She gave him water but he did not drink it and asked her to come with him. At that relevant time, she was alone in the house and her mother had gone to Chando as also her maternal grandparents gone to the forest. Her maternal uncle and maternal aunt were sleeping in their room. 7 When she refused Vijay to go with him, he took her by holding her hand. He further told her that if she scream, he will kill her. Thereafter, Vijay took her to his house and locked her in his house and ran away. Vijay has committed forceful sexual intercourse and then, locked her in the room and went away. On Sunday, her mother and family members searched for her and brought her out from the room. She further deposed that Vijay had committed sexual intercourse in his house on 13.09.2017. She lodged the report of the incident on 25.09.2017 along with her maternal uncle Dhirendra Kumar Banjare (PW-12). 13. The victim has been examined as PW-1. She has deposed in her evidence that on the date of the incident, she was studying in her room after dinner at around 09:00 PM at her maternal grandparents' house at village Chilma. At that relevant time, the accused came to her house and started knocking on the door. He asked for water to drink and when she went to give water to the accused, he caught hold of her hand and started saying that if she make a noise, he threatened her to kill and took her to his house. Thereafter, the accused took her to a room in his house and committed sexual intercourse with her. On the next day, he took her for a walk in forest and in the evening, brought her to his house and kept her locked up for three days. After two days, the accused locked her inside the room and fled somewhere. At that relevant time, she was crying and making a lot of noise, then hearing her noise, her maternal grandfather, maternal uncle, maternal aunt and other people of the village came and opened the door as also took her out. Thereafter, she told her mother, maternal grandfather and maternal uncle about the 8 incident and when they asked me about the accused, she told that the accused had fled somewhere. 14. Rajesh Kumar Singh (PW-3) Headmaster of Government Middle School, Chilma, Block Balrampur, District Balrampur, C.G. has stated that the police had seized the dakhil kharij register of the Government Middle School, Chilma from the year 2005 vide Ex.P/8 and after taking a photocopy, the original was handed over to him. Today, he has brought the original dakhil kharij register of the school with him, which is Ex.P/8 in Serial No.127, the date of the birth of the prosecutrix was mentioned as 26.05.2004. 15. 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 a rape case. The observations of 9 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...”. 16. 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 10 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. 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). 17. 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. 11 There is no rule of law or practice incorporated in the Indian Evidence Act, 1872 (in short ‘Evidence Act’) similar to illustration (b) to 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. 18. 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. 19. The Supreme Court in the matter of Rai Sandeep @ Deenu v. 12 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 13 as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, 14 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.” 20. As per the statement of the prosecutrix (PW-1), she used to live with her mother, maternal uncle, maternal aunt and maternal grandmother. The incident of 13.09.2017 when she was sleeping in her house at 09.00 PM, a boy named Vijay came and asked for water. She gave him water but he did not drink it and asked her to come with him. At that relevant time, she was alone in the house and her mother had gone to Chando as also her maternal grandparents gone to the forest. Her maternal uncle and maternal aunt were sleeping in their room. When she refused Vijay to go with him, he took her by holding her hand. He further told her that if she scream, he will kill her. Thereafter, Vijay took her to his house and locked her in his house and ran away. Vijay has committed forceful sexual intercourse and then, locked her in the room and went away. On Sunday, her mother and family members searched for her and brought her out from the room. She further deposed that Vijay had committed repeated sexual intercourse with her. 21. Considering the aforesaid facts and circumstances of the case, particularly the evidence of the victim (PW-1), it is quite clear from the 15 documentary and oral evidence presented by the prosecution on record and its analysis that the accused/appellant has forcefully committed rape the victim. The prosecution has also been successful in proving beyond reasonable doubt that on the date of the incident the victim was minor. Thus, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. 22. Consequently, the conviction as awarded by the trial Court under Sections 363, 366, 506, 342 of the IPC and Section 4 of the POCSO Act is hereby upheld, however, considering the submission advanced by learned counsel for the appellant, also considering the evidence of the victim (PW-1) and the material available on record, this Court is of the view that the sentence of life imprisonment, which would mean imprisonment for rest of the natural life, is too harsh and instead, the same is converted to rigorous imprisonment for 20 years. The imposition of fine amount and the default sentence is upheld. 23. The appellant is stated to be in jail since 26.09.2017 being the date of arrest. He is directed to serve out the sentence as modified above. 24. The criminal appeal is partly allowed to the extent indicated hereinabove. 25. 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 16 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. 26. Let a certified copy of this judgment along with the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Anu