1 2025:CGHC:17608 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR JUDGMENT RESERVED ON 31.01.2025 JUDGMENT DELIVERED ON 11.04.2025 CRA No. 687 of 2021 1 - Avinash Murav S/o Late Shivprasad Murav Aged About 47 Years R/o Near Tifra Dal Mil, Behind Bajrang Hotel, Bilaspur District Bilaspur Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through Police Station Sirgitti, District Bilaspur Chhattisgarh ... Respondent(s) For Appellant(s) : Shri Rishi Rahul Soni, Advocate For Respondent/State : Ms. Sunita Sahu, PL (Hon’ble Shri Justice Arvind Kumar Verma) C A V Judgment This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973, is directed against the judgment dated 01.04.2021 passed by the Additional Sessions Judge F.T.C. (POSCO), Bilaspur District – Bilaspur (C.G.), in Special Sessions Case No.401/2016, 2 whereby the learned Additional Sessions Judge has convicted and sentenced the appellant in the following manner : Conviction sentence Under Section 363 IPC RI for 5 years and fine of Rs. 200/- in default of payment of fine to further undergo RI for 6 months Under Section 365 IPC RI for 5 years and fine of Rs. 200/-, in default of payment of fine to further undergo RI for 6 months Under Section 366-A IPC RI for 5 years and fine of Rs. 200/-, in default of payment of fine to further undergo RI for 6 months Under Section 5(L)/6 of POCSO Act RI for 10 years and fine of Rs. 300/-in default of payment of fine to further undergo RI for 1 year All the sentences are ordered to run concurrently. 2. Brief facts of the case are that the prosecutrix/victim, a student of class X was residing along with her parents in Sirgitti, District Bilaspur. It is the case of prosecution that sister of the victim was admitted in CIMS, Bilaspur as she had sustained burn injuries and on 30.01.2015 she succumbed to the injuries sustained by her. On receiving the said information, the appellant visited the house of the victim as he was known to the family. After few days, when the victim was returning from school, on the way, the appellant stopped her and took her to his house where he provided food and after taking the meals, she fell unconscious and when she regained consciousness, she was in the bed with the appellant, unclothed. The appellant threatened her not to disclose else he would kill her family members. Thereafter, the appellant subjected her to rape/sexually exploited her on several occasions by threatening her. On 29.09.2015, at about 8.00 p.m. again the appellant asked her to come to his house and thereafter he made a phone call to her father 3 stating that his daughter has been abducted and to lodge a report. The matter was reported at police station Sarkanda and a report was made by the father of the prosecutrix/victim. On the basis of the said report Crime No. 475/15 was registered against the appellant. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. in which she has stated that the appellant and one other accused namely, Pramal Ratre used to provoke her and the present appellant had subjected her to rape. On the basis of the said report, FIR (Ex.P-24) was registered against the appellant for the offence under Sections 363,366,365,376,506 IPC and Section 4 & 6 of the POCSO and sent to the police station Sirgitti on 9.10.2015 and Crime No. 298/2015 and FIR Ex.P-25 was registered against the appellant. 3. During investigation, notice Ex.P-4 was sent to the parents and after taking consent vide Ex.P-5, statement of the victim/prosecutrix was recorded before the Child Welfare Committee and after medical examination, prepared slide vide Ex.P-23. Spot map was prepared, progress report of the victim was seized vide Ex.P-11. On 13.10.2015, notice Ex.P-15 was prepared and vide Ex.P-15 the same was sent to the Principal, Maharani Lakshmibai Govt. Middle School, Bilaspur and seizure was made vide Ex.P-28 and after obtaining the xerox of the same, handed over to the Principal. On 16.10.2015, after taking consent from the victim and her parents vide Ex.P-13, notice Ex.P-15 was prepared. Slides were prepared, seized vide Ex.P-42 and thereafter, notice was sent vide Ex.P-18 for recording the statement of the victim under Section 164 Cr.P.C. and on 01.03.2016, vide Ex.P-8 and P.16, the school admission and discharge register of the victim was obtained 4 from Adarsh Convent Primary School, Juna Bilaspur after giving notice Ex.P-20. The school admission and discharge register was seized vide Ex.P-21 and after obtaining xerox vide Ex.P-22, on 13.11.2015, Cyber cell was informed to give the call details of the appellant vide Ex.P-30 and on 28.12.2015, notice was sent to SDM Baitul, MP vide EX.P-32 regarding the movable and immovable properties of the appellant and received information vide Ex.P.-33 and thereafter notice Ex.P-35 was sent for information regarding the whereabouts of the appellant. Absconding panchnama Ex.P-31 was prepared and on 17.03.2016, SP had taken permission vide Ex.P-34 and on 9.12.2015, notice was sent to the High Court for obtaining the photographs and service book and vide Ex.P-37. On 19.05.2019, notice Ex.P-36 was prepared and information Ex.P-38 was attached the presence of the appellant. Statement of the victim and other witnesses were recorded slide were prepared and sent for chemical examination to FSL vide Ex.P-40 and report was attached vide Ex.P-41. On 20.07.2016, charge sheet was filed against the appellant on 07.09.2016 and on 24.06.2019, he surrendered before the court. The accused abjured his guilt, pleaded innocence and claimed for trial. 4. In order to establish the charge against the appellant, the prosecution has examined 16 witnesses. Statement of the appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the material appearing against him and stated that he is innocent and has been falsely implicated in the case. 5 5. After appreciation of the evidence available on record the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para one of this judgment. Hence this appeal. 6. Learned counsel for the appellant has argued that the prosecution has failed to prove the case beyond reasonable doubt. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. The learned trial Court has failed to appreciate that the prosecution was unable to explain that on what basis the age of the prosecutrix was recorded in her school record He submits that the report was lodged belatedly and it has to be taken into notice. He submits that the delayed FIR may be an afterthought to give a colored version of the incident and the delay is not satisfactorily explained. He submit that the offence of rape as alleged against the appellant having not been established in the manner known to law, the conviction and sentence imposed on the appellant is liable to be set aside. The findings given by the learned trial Court against the appellant is perverse and contrary to the evidence available on record and consequently, the same is liable to be set aside. He contended that there are material contradictions and omissions in the statements/depositions of the prosecution witnesses, falsifying the case of the prosecution. As such, the appeal deserves to be allowed and the impugned judgment deserves to be set aside. He has placed his reliance upon the judgment of the Apex Court in the matter of Rai Sandeep @ Deepu Vs.State (NCT of Delhi), 2012 SCC OnLine SC 590 wherein it has been observed as under: “22. In our considered opinion, the ‘sterling 6 witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co- relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the 7 core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 7. He has further placed his reliance upon the judgment of the Apex Court in the matter of Nirmal Premkumar & Another Vs. State Rep. By Inspector of Police (Criminal Appeal No. 11098 of 2024) wherein it has been observed as under: 15. What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistences excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution’s case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.” 8. In yet another decision of the Apex Court in the matter of Kirishan Kumar Malik Vs. State of Haryana (2011) 7 SC 130, it has been observed as under: “31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, Crl. A. @S.L.P. (Crl.) No.8021 of 2009 have already been projected hereinabove, would go to show that her evidence does not fall in 8 that category and cannot be relied upon to hold the Appellant guilty of the said offences.” 9. In the matter of Ramdas and Others Vs.State of Maharashtra, (2007) 2 SCC 170, it has been held by the Apex Court that : “23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality. Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to merit acceptance. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice.” 10. He has placed his reliance upon the judgment of the Apex Court in the matter of Dola @ Dolagobinda Pradhan and Another Vs. State of Odisha, AIR 2018 SC 4020, wherein it has been obsered as under: “9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary 9 evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.” 11. In the matter of Sekaran Vs. The State of Tamil Nadu, Criminal Appeal No. 2294 of 2010, it has been held by the Apex Court as under: “Mere absconding by the appellant after alleged commission of crime and remaining untraceable for such a long time itself cannot establish his guilt or his guilty conscience. Abscondence, in certain cases, could constitute a relevant piece of evidence, but its evidentiary value depends upon the surrounding circumstances. This sole circumstance, therefore, does not enure to the benefit of the prosecution.” 12. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellant and submits that the prosecutrix was minor and below 18 years of age at the time of incident, which is proved by the School admission and discharge register (Ex.P-22) which contains the date of birth of the prosecutrix as 13.01.2000. The school admission and discharge register is admissible piece of evidence to determine the age of the prosecutrix. He submit that the apellant could remained absconded for three years and only on 24.06.2019, he surrendered before the Court. He further submits that the trial Court has rightly convicted and sentenced the appellant, in which no interference is called for by this Court. 13. I have heard the learned counsel for the parties and perused the record with utmost circumspection. 10 14. In order to consider the age of the prosecutrix, at first the evidence produced by the prosecution has to be examined. The prosecution relied upon the School admission and discharge register (Ex.P-22) which is sought to be proved by PW-10, Smt. Shobha Kashyap Principal of Primary School Amarnath Sao Adarsh Convent School, Juna Bilaspur. She has stated in the school admission and discharge register, at Sl. No. 2373, name of the victim and her date of birth was mentioned as 13.01.2000, date of admission in the school in class 1 was 01.07.2005. 15. Smt. Shobha Kashyap (PW-10) is the Principal of Primary School, Amarnath Sao Adarsh Convent School, Juna Bilaspur. He has stated that in the school admission and discharge register Ex.P-21, at Sl. No. 2373 name of the victim and her date of birth was mentioned as 13.01.2000, date of admission in school was 01.07.2005, in Class 1. She is the author of the date of birth in the school admission and discharge register. 16. Contention of the counsel for the appellant is that the age of the victim has not been proved as per law. 17. After going through the records, the deposition of the witnesses, statement of the In charge headmaster, the school admission and discharge register in which the date of birth of the prosecutrix has been got entered in the school is 13.01.2000. Though the author of the school admission register has not been examined but as per the statements of the parents, age of the prosecutrix is about 15 years meaning thereby at the time of incident, the age of the prosecutrix was below 18 years. 11 18. Determination of the age of a prosecutrix under the Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as the “POCSO”) has been considered by the Supreme Court in Mahadeo Vs. State of Maharashtra and Anr. – (2013) 14 SCC 637 wherein, the Supreme Court has laid down that : “the date given in the matriculation or equivalent certificate must first of all be considered for the purpose of determining the age of the prosecutrix on the date of offence and, if that is not available, other means of determining the age of prosecutrix must be resorted to. While laying down this proposition, the Supreme Court took inspiration from rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (referred hereinafter as “Rules of 2007”). The said rule provided various means of assessing the age of a juvenile in conflict with law. The Supreme Court applied the same parameters for determining the age of a prosecutrix under the POCSO. Under rule 12(3) of the Rules of 2007, the age determination inquiry shall obtain evidence relating to the age of the juvenile firstly, from the matriculation or equivalent certificates if available [r. 12(3)(a)(i)] and in its absence, the date of birth certificate from the school first attended (other than a play school) [r. 12(3)(a)(ii)], and in its absence, the birth certificate given by a municipality, corporation or a panchayat [r. 12(3)(a)(iii)]. Thereafter, the Supreme Court refers to rule 12(3)(b) and opines that it is only in the absence of any of the means provided in rr. 12(3)(a) (i) to (iii), that medical opinion could be sought to determine the age of the juvenile. Thereafter, the Supreme Court applies the same standard to determine the age of the prosecutrix under POCSO. 15. The question before this Court is whether the judgment of the Supreme Court in Mahadeo supra binds all inferior Courts to accept the date of birth of the prosecutrix as entered in the school register as an indelible fact, prohibiting any enquiry into the reliability of such an entry? In Haryana Financial Corporation and anr., Vs.Jagdamba Oil Mills and Anr – (2002) 3 SCC 496, the Supreme Court held in paragraph 19 that judgements are not to be interpreted as statutes and the observations of the Courts are not to be assigned the mathematical 12 rigidness of a Euclid’s theorem. The observations of the Court are to be understood in the backdrop of the facts in which the judgment was passed.” 19. A plain reading of the judgment in Mahadeo (supra) reveals that the Supreme Court had to borrow the means of determining the age of the prosecutrix from the provisions of r.12(3) (i) to (iii) of the Rules 8 of 2007, on account of the absence of an analogous provision in the POCSO. However, the Supreme Court never intended its opinion to forbid an enquiry by the Courts into the reliability of the date of birth of the prosecutrix, as entered in the school register. Such a view is further sustainable in the light of stringent and draconian provisions in the POCSO which require that the enquiry by the Court to ascertain the guilt of an accused under the provisions of the POCSO should be detailed and intense to ensure that there is no miscarriage of justice by convicting an innocent or acquitting the guilty. The judgment does not require that the Courts consider the date of birth of the prosecutrix entered in the school register as gospel truth.” 20. It is undisputed that the information relating to the date of birth of the student entered in the school register. First source of information is the birth certificate of the child issued by the Municipality, Corporation, or the Panchayat or any such other local authority / body, which itself is based upon the certificate given by the hospital where the child was born. The second source of information is the date of birth of the child as given by the parent/guardian. Where the source of information relating to the date of birth of the child/prosecutrix is the statement of the parent/guardian, the Court must satisfy itself that such parent/guardian has affirmatively stated so in his or her testimony. 13 21. Now, reverting to the facts of the present case and after considering the evidence collected by the prosecution and in the light of the aforesaid judgments of Hon’ble Supreme Court, it appears that the victim had consistently described the incident that on the date of incident, the appellant had taken her to his home, offered him rice and dal and after consuming the food, she fell unconscious. She has stated that the appellant himself did not eat and when she regained consciousness, she found herself in the bed along with the appellant unclothed and he threatened her not to disclose about the incident to anyone or else he will kill her family members. Thereafter on several occasions, he used to threaten her and subjected to repeated penetrative sexual intercourse. The statement of the prosecutrix has been consistent from the beginning to the end (except minor inconsistencies), from the initial statement to the oral testimony, without creating any doubt qua the prosecution’s case. The prosecution has clinching and legally admissible evidence to prove the fact that the victim was minor and less than 18 years of age on the date of incident. The school admission and discharge register obtained from the Adarsh Convent School, Juna Bilaspur wherein the date of birth of the victim has been mentioned as 13.01.2000 and her admission was of the year 01.07.2005 in class 1. 22. The question for consideration is whether the appellant has committed rape on minor victim? 23. Prosecutrix (PW-2) has stated that she was residing at Bahtarai, Sarkanda with her parents. She has stated that they are four brothers 14 and sisters and her sister Rani aged about 8 years, died due to burning on 28.11.2014. when her sister was admitted in the hospital at Shishu Bhawan, Eidgaah Chowk, the ward boy Pramal Ratre looked after her. She has stated that in the hospital, when she was sitting near the bed of her sister, at about 5-6.00 am, said Pramal Ratre, Ward boy caught her hand and tried to sexually assault her and when she resisted that she will inform the doctor, he threatened her for dire consequences. She did not inform about the incident to her parents. On 30.01.2015, when her sister died, the present appellant came to her house. At that time, the parents of the victim were residing at Dayalband, Bilaspur and stated the he was reader in the high court and is residing at Tifra on rent. The appellant visited their house on the next day and asked her father to file a case. After 10-12 days of the death of her sister, when she was returning from school at about 12-12.30 noon, appellant came in his motorcycle and invited to his house and she went along with him where no one was present. Appellant offered her rice and dal and he himself did not eat the food. After sometime, she felt headache and fell unconscious. After regaining consciousness, she saw herself in the bed along with the appellant unclothed. She was feeling pain and the appellant threatened her not to disclose about the incident to anyone or else he will kill her family members and she came home from the auto. On being asked by her mother as to why she was late from school, she informed that there was some program in the school and therefore she was late. After 3-4 days, again when she was going to school on her bicycle, the appellant came on his motorcycle and took her along with him to his house where he administered milk and she fell unconscious 15 and after regaining consciousness, she found herself along with the appellant in his bed and she was subjected to rape. Three-four days after the incident, again the appellant came in his motorcycle and took her to his house, checked her bag and found the mobile, took her number and tied her with a rope, undressed her and committed rape on her. Thereafter he untied her and left on the place from where he picked her and he continued to commit rape on her for 10-12 times. 24. On 29.09.2015, at about 12.00 noon, he made a call to her father and asked her to meet near Eidgaah Chowk, where he threatened her not to disclose about the incident to anyone. When she reached the place of incident, appellant came and took her in a motorcycle and made her understand that he will lodge a false report of kidnapping against Dr. Giri and according to the plan, 5-6 persons came in a white car, had abducted her and hands were chopped. After sometime, he made a call to her father and informed that his daughter has been abducted. After sometime, he again made a call to her father and informed him that his daughter has been recovered and he came to the house of the appellant where she narrated to him according to the plan. Thereafter, they went along with the appellant to police station Sarkanda and lodged a report. After lodging of the report, her statement was recorded and she was sent to district hospital for medical examination vide Ex.P-4 and after getting consent vide Ex.P-5, she was examined by the doctor. On 11.10.2015, spot map was prepared vide Ex.P-6, Statement under Section1 64 Cr.P.C was recorded before the Judicial Magistrate twice vide Ex.P-8 and P-9 where she had stated about the commission of rape by the appellant several times. She has further 16 stated that she made a statement before the Child Welfare Committee, Bilaspur vide Ex.P-10 that the appellant had sexually exploited her. She has stated that the police persons had prepared seizure memo Ex.P-11 and seized progress report of 2013-14 wherein the date of birth is mentioned as 13.01.2000. 25. In her cross-examination, she has admitted that her sister was admitted in the Clinic of Dr. Giri and during treatment she died and therefore complaint was lodged against the doctor which is pending before the High Court. She has stated that the appellant had helped in providing advocate in the case and she used to resemble the appellant as uncle. 26. Mother of the prosecutrix (PW-4) has stated that at about 8-9.00 pm when they were watching TV, her husband received a phone call that their daughter is missing and after sometime, again he received a phone call from the appellant that the prosecutrix has been found and then the appellant took her to the police station and lodged a report. Thereafter, her husband and daughter came home and after sometime, the police persons came from Mahila Thana and took the prosecutrix to Child Welfare Committee and after taking consent for her to be examined vide Ex.P-13, the progress report Ex.P-12 was seized. 27. Father of the prosecutrix (PW-5) has stated that the victim used to go to school in the morning and returned at 12-1.00 noon. He has stated that he was searching to lodge report against the accused as his daughter has died and at that time, he met the appellant who was residing at Katiyapara, Bilaspur and he came to know that the appellant was working in the High Court. The appellant helped in giving 17 assistance for Advocate. He has stated about the incident of kidnapping of his daughter that the appellant had asked him to lodge a report at police station about recovery of his daughter. Thereafter the police persons took his daughter for medical examination and on the next day, the police came and took his daughter to Mahila Thana and from there took her to observation Home. The police persons had asked him to withdraw the case. Thereafter, on three occasions the police had sent notice for recording the statement of the prosecutrix repeatedly. In his cross-examination he has stated that he is very much scared of the police. His daughter was kept in the observation home for 4-5 days and therefore he has filed application before the high court for custody of his daughter. 28. Dr. Rama Ghosh (PW-09) is the Medical Officer at District Hospital, Bilaspur who medically examined the prosecutrix and gave her report (Ex.P-4) wherein she has opined that the hymen was found ruptured and she was habitual to sexual intercourse and two slides were prepared and sent for chemical examination. 29. The Supreme Court in the matter of State of Himachal Pradesh Vs. Sanjay Kumar @ Sunny (2017) 2 SCC 1: (AIR 2017 SC 463) has held that:- "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 18 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, 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. 30. As regards the appreciation of a minor victim's testimony, it has been held thus:- "By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which testimony of the prosecutrix is to be examined and analyzed 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." The settled proposition of law is that even statement of victim in a case of rape has to be critically appreciated with utmost sensitivity keeping in view the broader probability of the incident. It is understood when a self respected woman like the victim would come forward in a Court to make a humiliating statement against her honour such as is involved in the commission of rape on her it is beyond of imagination that parents of the victim would manufacture a false case at the cast of assassinating the character of their own daughter though victim was a minor girl 19 but in any rate she is woman with all attributes showing modest to her.” 31. The submission made by learned counsel for the appellants that there are contradictions in the statement of the prosecutrix, are of no help to the appellant. The Supreme Court in “Appabhai v. State of Gujarat” [1988 Supp SCC 241] observed that- “13….The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.…” ii. In the case at hand, the alleged discrepancies which have been pointed out regarding threatening the prosecutrix are of a minor character and do not call into question the veracity of the prosecution story. The basic version regarding the manner and commission of offence is constant. 20 iii. Moreover, the Supreme Court in “State of Punjab v. Gurmit Singh” [(1996) 2 SCC 384], the Court observed as under:- “21…A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, 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.” 32. Thus, it is agreeable that the view taken by the learned Special Judge (POCSO) in the impugned judgment that there is no reason to disbelieve the testimony of the prosecutrix as this conclusion was arrived at after considering all the evidences on record and testimonies of the witnesses. It is a settled position of law that the statement of prosecutrix can be the sole basis for conviction unless there are cogent reasons for the Court to be hesitant in believing the statement at its face value or to seek corroboration. The Supreme Court in “State of H.P. v. Sanjay Kumar”[(2017) 2 SCC 51] held that:- 21 “30…We have already discussed above the manner in which the 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. 31…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, 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.” 33. The legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the 22 consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so- called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance. 34. Once if the things are put in right perspective in the manner stated above, we have to treat it as a case where the appellant has committed rape of a minor girl which is regarded as a heinous crime. Such an act of sexual assault has to be abhorred. If the consent of minor is treated as a mitigating circumstance, it may lead to disastrous consequences. This view gets strengthened when it is kept in mind the letter and spirit behind the Protection of Children from Sexual Offences Act, 2012." 35. Considering the evidence of the prosecutrix (PW-3) who has specifically stated the role of the appellant, evidence of her father (PW- 5), mother (PW-4), evidence of Principal Smt. Shobha Kashyap (PW-10) and also considering the evidence of Dr. Rama Ghosh (PW-9), the material available on record in particular, the testimony of the 23 prosecutrix is of sterling quality and inspires the confidence of this Court. This Court finds no reason to discredit or disbelief the statement of the prosecutrix. In addition, the statement of the prosecutrix has also been duly corroborated. 36. So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which librate in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition-bound society it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. The intention of the prosecutrix in falsely implicating the appellant can also not be made out. In the statement made by the prosecutrix, there are clear allegations of subjecting her to repeated penetrative sexual intercourse by the accused/appellant. 37. Sexual offence leaves an indelible mark not only on the body but in the mind of the victim. Damage caused to the respect, dignity and the psyche of the victim continues to haunt her throughout her life even after the visible scars of sexual crime have disappeared. It is more traumatic when such heinous act is perpetrated by someone, who is a known person and she used to call him ‘uncle’ but he was having fiduciary control over the victim. 38. In view of the above and the law laid down by the Supreme Court in the above-stated judgments, I am of the opinion that the learned Special Judge has rightly convicted the appellants for offence under 24 Section 363, 365, 366-A of the IPC and Section 5(L)/6 of the POCSO Act. I do not find any illegality and irregularity in the findings recorded by the trial Court. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes, for it serves as a deterrent. Taking into consideration the persistence in the statement of prosecutrix under Section 164 Cr.P.C. statement and deposition before the Court which are cogent, articulate and stated with clarity, there is absolutely no reason to conclude that her evidence was concocted or unbelievable. 39. In view of the above observation and for the reasons stated above, I find no fault or irregularity in the order of the learned Special Judge (POCSO Act) and I am not inclined to interfere with the impugned judgment of conviction and order of sentence dated 13.02.2019. The appeal lacks merit and is accordingly dismissed. 40. The conviction of the appellant under 363, 365, 366-A of the IPC and Section 5(L)/6 of the Protection of Children from Sexual Offences Act, 2012 is hereby maintained. Being already inside the jail, no order in respect of arrest etc. of the accused/appellant is required. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.04.17 14:01:11 +0530