1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1165 of 2019 1 - Hariram S/o Udlu Aged About 34 Years R/o Village Khutitoli (as per challan) Police Station - Kansabel, District - Jashpur Chhattisgarh. ... Appellant Versus 1 - State of Chhattisgarh Through The Station House Officer, Police Station - Kansabel, District - Jashpur Chhattisgarh. ... Respondent(s) For Appellant : Shri JK Saxena, Advocate. For Respondent : Shri Shailendra Sharma, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 15.01. 202 5 1. The present appeal has been filed against the impugned judgment of conviction and order of sentence dated 17.07.2019 passed by the Special Judge (Protection of Children from Sexual Offences Act (in short, POCSO Act) Jashpur, District Jashpur, in Special Criminal Case No.11/2018, whereby the appellant has been convicted and sentenced as under : Conviction Under Section Sentence 457 of IPC RI for 3 years with fine of Rs.1000/-, in default of payment of fine, additional RI for 3 months. 363 of IPC R.I. for 2 years with fine of Rs. 500/-, in default of payment of fine, additional R.I. for 1 month. 366-A of IPC R.I. for 3 years with fine of Rs. 1000/-, in default of payment of fine, additional R.I. for 3 months. Digitally signed by INDRAJEET SAHU Date: 2025.03.07 16:59:49 +0530 2 376 (2)(i) of IPC R.I. for 10 years with fine of Rs. 1000/-, in default of payment of fine, additional R.I. for 3 months. All the sentences are directed to run concurrently. 2. Brief facts of the case are that, on 22.02.2018, at about 11-12 in the night the appellant entered into the house of victim and tried to kidnap her. While inserting piece of clothes in the mouth of victim she raised hue and cry due to which other family members awoke and then appellant fled away from her house. Victim disclosed that 3 days back also the appellant had taken her near Kusum tree and after removing her cloths he tried to commit rape upon her. When he could not succeed, he inserted his penis in the mouth of victim and thereafter left her to her house. On the same day i.e. on 22.02.2018 also at about 8 PM he tried to commit the same offence. Since she was scared with the incident and threatening given by appellant, she could not disclose the incident to anyone. On the written complaint Ex.P/1 lodged by the father of victim on 24.02.2018, an FIR Ex.P/2 was registered against the appellant for the offence under Sections 363, 457 and 376 IPC and Section 5 & 6 of POCSO Act. With respect to incident of about 8 PM of the same day, recovery Panchnama Ex.P/3 was prepared in presence of witnesses. The victim was sent for her medical examination to the Community Health Centre, Kansabel where PW-8, Dr. Rosa Toppo medically examined her and gave report Ex.P/10. While examining the victim, the doctor did not notice any external injuries over her body and opined that victim was not subjected to sexual intercourse. Spot map Ex.P/5 was prepared by the police whereas Ex.P/6 by the Patwari. With respect to age and date of birth of the victim, the police seized school 3 register from AJK Primary School Khutitole vide Ex.P/12 and after retaining its attested true copy Ex.P/14-C, the original was returned back to school. The appellant was arrested on 05.03.2018 and he too was sent for his medical examination to Community Heath Centre, Kansabel, where PW-7 Dr. Sunil Kumar Khess medically examined him found him capable to perform sexual intercourse. His report is Ex.P/8. 3. Statement of witnesses under Section 161 of Cr.P.C. and statement of the victim under Section 164 of Cr.P.C. have been recorded and after completion of usual investigation, charge-sheet was filed against the appellant for the offence under Sections 363, 376 and 457 IPC and Sections 5 & 6 of POCSO Act before the learned Trial Court. 4. The learned trial court has framed charge against the appellant for the offence under Sections 363, 366-A, 457 and 376 (2)(i) IPC and Section 6 of the POCSO Act. The appellant denied the charge and claimed trial. 5. In order to bring home the charge, the prosecution has examined as many as 14 witnesses. The statement under section 313 of CrPC of the appellant was also recorded in which he denied the material appears against him, pleaded innocence and submitted that he has been falsely implicated in the offence. He would also submit that PW-5 is his elder sister in relation. His father gave Rs.40,000/- to PW-5 to contest BDC election. Out of which some amount was returned back and some was outstanding. When he asked for refund of said outstanding amount, she threatened him to rope in a false case and accordingly did not return back the outstanding amount. His father purchased some land from the father of victim which was being objected by PW-5 and on her instance he is falsely implicated in the offence. 4 6. After appreciation of the oral as well as the documentary evidence led by the prosecution, the trial court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence this appeal. 7. Learned counsel for the appellant would submit that prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict the appellant in the alleged offence. The evidence of victim suffers with material discrepancy and there is no corroboration of her evidence with other evidence. No injuries were found on the body of victim. Although the allegation of previous incident was made, but she had not disclose the incident to anyone and no report was lodged. There is no legally admissible evidence with respect to age of victim, therefore, in absence of any cogent and clinching evidence the appellant cannot be convicted and he is entitled for acquittal. 8. On the other hand, learned counsel for the state opposes and have submitted that but for minor omissions and contradictions, the evidence of prosecution witnesses are fully reliable and the trial court has rightly appreciated the evidence available on record and convicted the appellant. The evidence of victim, PW-4 is self sufficient to convict the appellant and the same does not require any corroboration. Even if no injures were found on the body of victim, the nature of allegation and the act of appellant clearly demonstrate that in such act injuries may not have been caused to the victim. Even otherwise, in every case there is no necessity that victim must have received injuries on her 5 body. There are overwhelming and clinching evidence against the appellant and the appeal is liable to be dismissed. 9. I have heard learned counsel for the parties and perused the records carefully. 10. The age of the victim to be that of 10 years on the date of incident have not been specifically disputed by the appellant. Even otherwise, the age of victim has been proved by the prosecution by producing her school record Ex.P/14-C which is sought to be proved by PW-9, Anand Kumar Ekka who is Headmaster of the school and who have stated that police has seized school register with respect to date of birth of victim. He has brought the original register with him, according to which the date of birth of victim is 03.09.2008. Although PW-9 is not the author of school register as per his own statement, but considering the age as shown in the school register and date of birth disclosed in it, further from the evidence of PW-4, the victim who stated to be aged about 10 years and have not been cross examined on that point, it cannot be said that appellant has challenged the age of victim. In the evidence of PW-1, the father of victim and PW-2, the mother of victim, her age has not been challenged by the prosecution. Therefore, in absence of any specific challenge of the age of victim, it cannot be said that prosecution could not able able to prove her age, and accordingly it is found that the victim was aged about 10 years on the date of incident. 11. So far as the offence of kidnapping and rape is concerned, PW-4, the victim have stated that prior to the date of present incident, the appellant took her to a rocky area where after removing her clothes, he committed rape upon her and he also inserted his penis on her mouth. 6 He also inserted his finger on her private part. He kept her there for about three hours and committed bad work and thereafter he left her to her house. On third day of said incident also he took her towards threshing field and again committed the said act. On the date of incident when she was sleeping in her house, at about 8 PM he entered into her house and tried to gag her mouth by a towel. At that time, on alarm being raised her parents awoke, to which the appellant explained that he came there for Tobacco and fled away from the place. On the next morning, they had gone to the house of her maternal aunt, PW-5 and informed the incident. Thereafter, she was being taken to Kansabel police station where she narrated the entire incident to police persons. In cross examination she states that due to fear she could not disclose the incident earlier. She explained that the bolt of the door of her house was loose and easily openable after a push. She firmly denied the suggestion given by the defence that appellant has not committed any rape upon her. Defence cross examined on the point that she made complaint and lodged report on the instance of PW-5, but she denied the same also. This witness remain firm in saying that the appellant has committed rape upon her prior to the date of incident. On the date of incident also when he tried to kidnap her after gagging her mouth by clothes, her family members awoke due to which he could not succeed in his intention, but she proved the earlier incident of rape by appellant. 12. Rape has been defined under Section 375 of IPC which reads as under: “[375. Rape.-- A man is said to commit "rape" if he-- 7 (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person” 13. In the matter of Satyapal Vs. State of Haryana, 2009 (6) SCC 635, the Hon’ble Supreme Court in paragraph 18 of its judgment has held as under: “18. In Modi's Medical Jurisprudence, twenty-third edition, at pages 897 and 928, it is stated: "To constitute the offence of rape, it is not necessary that there would be complete penetration of the penis with emission of semen and the rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. XXXX XXXX XXXX In small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and the perineum." 14. In the present case also, the allegation against the present appellant is that he tried to commit rape upon the minor victim and when he could not succeed in complete penetration, not only he inserted his penis on 8 her mouth, but also finger on her vagina. Though no injuries were found on the body of victim while medically examined by doctor, but in view of provisions of Section 375 IPC and also in view of judgment in case of Satyapal (Supra), the act of appellant completely falls under the definition of offence of rape. 15. PW-1, the father of victim, have stated in his evidence that on the date of incident they were sleeping in their house. In the next morning his daughter informed that at about 10-11 PM the appellant kidnapped her and took her towards rocky area where after removing her clothes he committed rape upon her. He allured that he will give her money and clothes and not to disclose the incident to anyone. When his daughter disclosed about the incident, he disclosed the matter to his sister PW-5 and thereafter they went to lodge report. When leading question was asked from this witness, he supported the incident and the incident of earlier occasion also which the victim had disclosed to him. Though defence tried to brought the dispute between father of victim as well as the appellant with respect to purchase of land, but that itself is not sufficient in the facts and circumstances of the present case as no one can make his minor daughter instrumental to settle his score particularly when the period of dispute is not established by the defence. Even the defence taken that report was lodged on the instance of PW-5 who was having grudge against the appellant has not been established and it is not sufficient to discard the evidence of victim as well as her father. PW-1 stands on his allegation that appellant committed rape upon his minor daughter and as soon as he came to know about the incident, he immediately lodged the report. 9 16. PW-2, the mother of victim, have stated in her evidence that on the date of incident when her daughter was sleeping in the house, the appellant came there and tried to insert piece of cloths on her mouth and after hearing hue and cry they woke up and the appellant fled away. Her daughter informed them that appellant has committed rape upon her on the earlier occasion. The appellant is uncle of victim in relation, yet he has committed rape upon her. She admits in her cross examination that incident of rape was not informed by the victim to her directly, but she informed the same to PW-5, who in turn, had informed about the incident to her. She denied the suggestions given by the defence that appellant did not enter into her house on the date of incident. 17. PW-3 is the brother of victim who have supported the case of prosecution that on the date of incident the appellant entered into her house and tried to gag the mouth of his sister by a piece of cloth. When the family members woke up, the appellant replied that he came there for Tobacco and thereafter he fled away. Nothing could be elicited from the evidence of this witness that appellant has not committed any offence or his evidence can be disbelieved. 18. PW-5, the Aunt of victim, have stated in her evidence that on the date of incident the victim disclosed her about the incident that appellant committed rape upon her after taking her towards rocky area. She also disclosed that victim disclosed her that appellant inserted his penis upon her private part and when he could succeed in penetration, he inserted his finger on her private part and thereafter penis on her mouth. She also disclosed that he repeated his act on the next day 10 also and allured that he will give her new frock and cash amount and threatened that if she discloses the incident to anyone, he will kill her. This witness was also cross examined by the defence, but that was with respect to her own dispute with the appellant. Despite that, she remain firm in saying that victim disclosed about the incident to her and the same cannot be rebutted in her evidence by the defence. 19. Although, Dr. Smt. Rosa Toppo, PW-8, who medically examined the victim did not find any external injury on the body of victim, yet under the facts and circumstances of the case, injury could not be possible to have been received by the victim as firstly the appellant tried to insert his penis on her private part and when he could not succeed, he inserted his penis on her mouth. Therefore, even if injuries were not found on the body of victim, the offence is said to have been proved from the other evidence of victim, her parents and brother. 20. From all these evidences, this court is of the considered opinion that the trial court has rightly appreciated the evidence available on record and has convicted the appellant for the offence under Sections 457, 363, 366-A and 376(2)(i) IPC in which I do not find any illegality or perversity to interfere with the same. 21. In the result, the appeal fails and is hereby dismissed. The appellant is reported to be in jail since 05.03.2018. He shall serve out the entire jail sentence as awarded by the trial court. 22. 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 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 11 High Court Legal Services Committee or the Supreme Court Legal Services Committee. 23. The trial court records along with a copy of this judgment be sent back to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge inder