1 2025:CGHC:7246 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1039 of 2023 Sushil Tekam S/o Late Krishna Tekam, Aged About 35 Years R/o Village Korar, P.S. Korar, District North Bastar Kanker Chhattisgarh. --- Appellant versus State of Chhattisgarh, Through Police Station- Korar District North Bastar Kanker Chhattisgarh. --- Respondent CRA No. 1349 of 2023 Ghurvaram Yadav S/o Shivram Yadav Aged About 35 Years R/o - Village- Korer P.S.- Korer North Bastar, District : Kanker, Chhattisgarh ---Appellant Versus State Of Chhattisgarh Through Station Korer North Bastar, District : Kanker, Chhattisgarh --- Respondent For Appellant : Mr. Pravin Kumar Tulsyan, Advocate {Cr.A. No. 1039/2023} Mr. Basant Dewangan, Advocate, {Cr.A. No. 1349/2023} For Respondent : Mr. Swajeet Uboweja, Panel Lawyer Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 10/02/2025 1. The appellants have filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.) questioning the impugned judgment dated 25.04.2023 passed in Special (POCSO Act) 2 Case No. 39/2021 by which the learned Special Judge (POCSO Act) and 1st Additional Sessions Judge, North Bastar, Kanker, has convicted and sentenced the appellants as under: Conviction under Section Sentence (Rigorous imprisonment) Fine In default of payment of fine additional rigorous imprisonment Appellant-Sushil Tekam 6 read with Section 18 of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act) 10 years Rs. 2000/- 2 months Appellant-Ghurvaram Yadav 363 of the Indian Penal Code (for short, the IPC) 3 years Rs. 1000/- 1 month 366 of the IPC 3 years Rs. 1000/- 1 month 6 of the POCSO Act For Life till natural death Rs. 2000/- 2 months All sentences have been directed to run concurrently. 2. The appellant-convict Ghurvaram Yadav was charged for the offences punishable under Sections 363, 366, 342/34, 376(2)(n), 376(3), 376DA, 506 (Part-II) of the IPC and Section 6 of the POCSO Act alleging that for the first time on date 06.12.2020 at 09:30 p.m. and second time on 13.12.2020 at some time took the minor victim aged about 14 years 02 months 22 days by force or intimidation, from the lawful guardianship of her parents without their consent and kidnapped her with the intention of having illicit sexual intercourse with her and on 13.12.2020, he stopped the victim at the house of accused Sushil Tekam in village Tekampara Korsar with the intent to rape her and caused wrongful confinement despite knowing that the victim was below 16 years of age. The convict Sushil Tekam was been charged under Section 342, 376DA IPC and in violation of Section 5(g) and in the alternative, in violation of 3 Section 5(l) and Section 6 of the POCSO Act alleging that he wrongfully confined the victim in his house who was brought by the co-accused Ghurvaram Yadav and assisted the co-accused in commission of rape against the victim. 3. The case of the prosecution in brief is that the mother of the victim made a written complaint (Exhibit P/8) at Police Station, Korar on 16.12.2020 alleging that the incidents took place in between 06.12.2020 to 13.12.2020, when her minor daughter aged 14 years 3 months was lured by appellant-Ghurvaram Yadav and forcibly taken to his house at Gadaria Para, Korar and on 13.12.2020 to the house of his friend Sushil Tekam at Tekampara Korar and raped forcibly, by threatening to kill her on the basis of which, an FIR (Exhibit P/5) bearing Crime No. 77/2020, was registered against accused Ghurwaram Yadav under Sections 376(3) and 506 of the IPC and Section 4 and 6 of the POCSO Act. During investigation, the Assistant Sub-Inspector Sharda Yadav (PW- 13) interrogated the victim and recorded her police statement and after obtaining written consent from the victim and her guardian, sent a memo (Exhibit P-6A) for MLC and sent the victim to Government K.D. Hospital Kanker for examination. The victim was examined by a lady doctor and its report was obtained. Two vaginal slides were prepared by the Doctor which were seized by the lady constable vide Exhibit P/26. During the course of investigation, the IO (PW-13) on 16.12.2020, went to the scene of incident and as per the information given by the victim, prepared a spot map (Exhibit P/1) of the house of accused Sushil Tekam and a spot map (Exhibit P/2) of the house of accused Ghurwaram. Inspector Naresh Dewan (PW-10), while taking the investigation forward, arrested the accused and prepared arrest memo Exhibit P/15 and P/16 and sent information regarding their arrest to their relatives vide Exhibit P/15A and P/16A. The accused were sent to the 4 Community Health Centre, Dhaneli Kanhar for their examination with regard to their potency. The statement of the victim was recorded under Section 164 Cr.P.C. and further the statement of the witnesses were also recorded. The documents with relation to the age of the victim was seized from the concerned Primary School. The articles seized from the victim as well as the accused were sent to the FSL for examination and its report was obtained. After completion of the investigation, charge sheet was filed by the police on 10.02.2021 before the learned trial Court. 4. Charges were framed on 16.02.2021 against the appellant-Ghurvaram Yadav for the offences under Sections 363, 366, 342/34, 376(2)(l), 376(3), 376DA, 506 (Part II) of the IPC and Sections 5(l) and 6 and Section 5(g) and 6 of the POCSO Act and against the appellant-Sushil Tekam for the offences under Section 342 read with Section 34 of the IPC, 376DA of the IPC and Section 5(g) and 6 of the POCSO Act and The appellants abjured the guilt and prayed for trial. 5. In order to bring home the offence, the prosecution examined as many as 14 witnesses namely, the victim (PW-1), mother of the victim (PW-2), father of the victim (PW-3), Mohani Dhruw (PW-4), brother of the victim (PW-5), Aunt (Bua) of the victim (PW-6), younger sister of the victim (PW-7), Dr. Dayanand Sahu (PW-8), Duwaru Ram Mandavi (PW-9), Inspector Naresh Diwan (PW-10), Dr. Sarita Kumeti (PW-11), Dr. S.P.Shandilya (PW-12), Smt. Sharda Yadav (PW-13) and Sumitra Gota (PW-14) and exhibited as many as 27 exhibits and two articles namely Article A and B. 6. The statement of the appellants/convicts were recorded under Section 313 Cr.P.C. wherein they expressed their ignorance about many 5 questions and some of them were denied as well. They stated that they had been falsely implicated in this case. 7. The learned trial Judge, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellants/convicts as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellants/convicts. 8. Mr. Basant Dewangan, learned counsel appearing for the appellant- Ghurvaram Yadav and Mr. Pravin Kumar Tulsyan, learned counsel appearing for the appellant-Sushil Tekam submits that the appellants have been falsely implicated in this case. Mr. Dewangan submits that it is not a case of kidnapping but is a case of elopement as the victim was having love affair with the appellant-Ghurvaram. She stayed with the appellant-Ghurvaram for more than 10-12 days in the house of appellant-Sushil Tekam and when she came to know that her parents were searching her, under the pressure of her parents, she lodged the FIR. Even the prosecution has not been able to prove beyond reasonable doubt that the victim was a minor on the date of incident. The conviction is based on conjectures and surmises and there is no eye witness to the incident. Mr. Tulsyan submits that there are contradictions and omissions in the statement of the prosecution witnesses and the allegation against the appellant-Sushil Tekam is that he gave shelter to the appellant-Ghurvaram Yadav and the victim. The appellant-Sushil Tekam has neither committed nor assisted in commission of alleged rape against the victim and as such. Lastly, they pray that the appeals may be allowed and the appellants may be acquitted of the charges. 9. On the other hand, Mr. Swajeet Uboweja, learned Panel Lawyer appearing for the State/respondent submits that the learned trial Court was fully justified in convicting and sentencing the convict/appellant as 6 mentioned in the opening paragraph. There is ample evidence on record to hold the appellants guilty of the offence. The order passed by the learned trial Court needs no interference and the appeal filed by the convict/appellant deserves to be be dismissed. 10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 11. In the case in hand, firstly, a written complaint (Exhibit P/4) was made to the police on the basis of which the FIR was registered on 16.12.2020 at 16:10 hours. In the FIR, the name of the appellant-Ghurvaram Yadav has been clearly mentioned. The victim was medically examined and in the MLC report (Exhibit P/6) Dr. Sarita Kumeti (PW-11) has found the secondary sexual characteristics of the victim at an under developing stage. Though she has not found any injury over the body of the victim, however, the hymen was found to be ruptured at 2, 4, 6 and 8 O’Clock position. Abrasion mark was present in labia majora. She prepared two vaginal slides and handed over to the lady constable for FSL examination. She had also referred to the Radiologist for determination of the age. 12. The appellant-Ghurvaram Yadav was medically examined by Dr. Dayanand Sahu (PW-8), who, vide his report (Exhibit P/13), found the appellant to be capable of performing sexual intercourse. He had examined the underwear of the appellant where he found some stains which was sealed and handed over to the Constable for FSL examination. 7 13. The FSL report (Exhibit P/25) states that semen and human sperms have been found in Article B and C which are the vaginal slides and underwear of the appellant-Ghurvaram Yadav. 14. The victim, in her statement under Section 164 Cr.P.C. has stated that she had attended the school upto class 8th. In December 2020, appellant Ghurva Ram came and in presence of her sister, said that he loves her. She was lured by the appellant-Ghurvaram and was taken to his house on 06.12.2020 where the appellant committed forceful sexual intercourse. This incident was known to the wife of the appellant. Thereafter, on 13.12.2020, in the night at about 7-8 p.m, appellant Ghurvaram came to their house. Thereafter, Ghurvaram called the victim and dragged her towards the kitchen garden and tried to rape her by disrobing her. When she started crying, he left her. Since it was night time, she was scared and hence, she accompanied with the appellant to the house of co-accused Sushil Tekam where Sushil Tekam said that why don’t she gives what the appellant-Ghurvaram wants. Thereafter, Ghurvaram again raped her. On the next day, when she woke up, she tried to search Ghurvaram who was missing then appellant-Sushil Tekam showed him the path from where she reached to her house and she met her mother on the way and she narrated the entire incident. 15. Though there is some variation in the deposition made by the victim before the learned trial Court but the gist of the deposition that there is no major contradictions or omissions which may create any suspicion and hence, the contention of the victim appears to be truthful. In her deposition, she has further clarified as to how the co-accused Sushil Tekam assisted the accused-Ghurvaram in commission of rape as he not only insisted to cooperate with the accused-Ghurvaram but also locked the door of the house. 8 16. Mother of the victim (PW-2) deposed that on the date of incident, she had gone to attend some funeral function. While she was returning back at about 9 p.m. she met her husband on the way who asked her with regard to the victim upon which she told that the victim was not with her. Thereafter, they tried to search for her but the whole night, she did not return back. In the morning, when they went towards Tekampara, she found the victim at about 7 a.m. alone. After returning home, the victim narrated the entire incident and thereafter they went to lodge the FIR. She also stated that the appellant-Ghurvaram had threatened the victim to kill her and thereafter committed rape. She also stated that the age of the victim would be around 14 years and few months. 17. With regard to the age of the victim, Mohni Dhruv, Head Mistress of Primary School, has deposed that in the admission/discharge register (Exhibit P/11A), the date of birth of the victim is stated as 14.09.2006 and she was admitted in Class I on 02.07.2012 and had left the school on 04.07.2015. Article A is the birth certificate of the victim according to which the date of birth of the victim is 14.09.2006. The said document has been issued by the Government of Chhattisgarh, Department of Finance, Planning, Economics and Statistics, and as such, there is no reason to disbelieve the said document being a government document. In the present case, the radiological test was conduct and its report (Exhibit P/20A) given by Dr. S.P.Shandilya (PW-12), Radiologist, opines the age of the victim to be in between 13-14 years. As such, this Court is of the opinion that the finding arrived at by the learned trial Court with regard to the age of the victim to be 14 years 2 months and 22 days on the date of incident, is just and proper warranting no interference. 18. The MLC report, the FSL report coupled with the statement of the victim herself, clearly establishes the fact that it is the appellant-Ghurvaram 9 Yadav who had committed forceful sexual intercourse against the victim and the appellant-Sushil Tekam had assisted Ghurvaram for commission of the said offence. Further, the documentary evidence in the form of admission/discharge register, birth certificate and the progress report of the victim, also establishes the fact that the victim was a minor on the date of incident. We are in respectful agreement with the findings arrived at by the learned trial Court and are of the considered opinion that no interference is warranted with the judgment of conviction passed by the learned trial Court. 19. The appellants have not stated anything in their statement under Section 313 Cr.P.C. as to why the victim would falsely implicate both of them in the present offence. There is no dispute that the appellants are friends. The victim was abducted from the lawful guardianship of her parents and thereafter taken to the house of the co-accused Sushil Tekam where he tried to illegally confine the victim in his house by locking the door and also asked the victim to cooperate with the appellant- Ghurvaram Yadav. 20. In the case of Ganesan v. State, (2020) 10 SCC 573, the Supreme Court observed and held that that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the victim is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. 21. In the case of State (NCT of Delhi) v. Pankaj Chaudhary, {(2019) 11 SCC 575}, it was observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. 10 22. In the case of Sham Singh v. State of Haryana, {(2018) 18 SCC 34}, the Supreme Court observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difÏculty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. 23. Applying the law laid down by the Supreme Court in the cases (supra) to the facts of the case on hand and as observed herein above, we see no reason to doubt the credibility and/or trustworthiness of the victim. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the victim can be sustained. 24. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellants/ convicts. 25. So far as the quantum of punishment is concerned, since the appellant- Ghurvaram Yadav has been awarded sentence of life imprisonment till natural death for the offence under Section 6 of the POCSO Act, the same appears to be on a higher side and as such, we are of the considered opinion that the appellant-Ghurvaram Yadav be sentenced to rigorous imprisonment for a period of 20 years with fine amount as awarded by the learned trial Court. It is ordered accordingly. So far as conviction and sentence under the other Sections are concerned, the 11 same are upheld. The conviction and sentence with regard to the appellant-Shushil Tekam is also upheld. 26. Accordingly, the appeal so far it relates to the appellant-Ghurvaram Yadav is concerned, stands partly allowed and the appeal so far it relates to the appellant-Sushil Tekam is concerned, the same is dismissed. 27. The appellants are stated to be in jail. They shall serve out the remaining part of their respective sentences. 28. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentences to serve the same on the appellants informing them that they are 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. 29. Let a certified copy of this judgment alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.02.12 16:07:00 +0530