1 2025:CGHC:7468-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1255 of 2021 Sanjay Thakur S/o Ganesh Thakur, aged about 22 years R/o Bhairwa Bisfi District Madhubani (Bihar) present address Tahsilpara Kondagaon Police Station Kondagaon District Kondagaon Chhattisgarh. --- Appellant versus State of Chhattisgarh, Through - Police Station - Kondagaon District Kondagaon Chhattisgarh --- Respondent CRA No. 1312 of 2021 Prakash Nag S/o Brijlal Nag @ Chhotu, aged about 23 years R/o Bhelvapadar Ward No. 12 Kondagaon P.S. and District Kondagaon, Chhattisgarh. ---Appellant Versus State of Chhattisgarh Through Police Station Kondagaon, District Kondagaon, Chhattisgarh. --- Respondent(s) (Cause Title taken from Case Information System) ________________________________________________________ For Appellant in CRA 1255/2021 : Mr. Raza Ali, Advocate For Appellant in CRA 1312/2021 : Mr. Pravin Kumar Tulsyan, Advocate For Respondent/State : Mr. Shailendra Sharma, P.L. ________________________________________________________ ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA Date: 2025.02.13 17:15:44 +0530 2 Hon'ble Mr. Ramesh Sinha, Chief Justice Hon’ble M r. Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha, Chief Justice 12.02.2025 1. Since both the above-captioned appeals arise out of a common factual matrix and common judgment, this Court is disposing of both these appeals by a common judgment. 2. Both these Criminal Appeals have been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) against the impugned judgment of conviction and order of sentence dated 06.10.2021 passed by the Additional Sessions Judge (F.T.C.) Kondagaon, District- Kondagaon (C.G.) in POCSO Case No.41/2019, by which the appellants have been convicted and sentenced in the following manner with a direction to run all the sentences concurrently:- Appellant Sanjay Thakur in CRA No.1255/2021 : Conviction Sentence Under Section 17 of the POCSO Act R.I. for 10 years with fine of Rs.1,000/-, in default of payment of fine, additional R.I. for 3 years. Under Section 366A of IPC R.I. for 10 years with fine of Rs.1,000/-, in default of payment of fine, additional R.I. for 3 years. Under Section 506(B) of the I.P.C. R.I. for 3 years with fine of Rs. 1,000/-, in default of payment of fine, additional R.I. for 4 months. 3 Appellant Prakash Nag in CRA No. 1312/2021 : Conviction Sentence Under Section 6 of the POCSO Act read with Section 376(3) of IPC Life Imprisonment (till natural death) with fine of Rs.1,000/-, in default of payment of fine, additional R.I. for 3 years. Under Section 366 of IPC R.I. for 10 years with fine of Rs.1,000/-, in default of payment of fine, additional R.I. for 3 years. 3. The prosecution story, in brief, is that on 04.11.2019, the complainant Sangeeta Haldhar appeared at the Kondagaon Police Station and lodged an oral report that on 03.11.2019 at 9.00 am, the accused Prakash Nag took her minor girl (victim) on his motorcycle to the forest depot and forcibly had physical relations with her. On the basis of the oral report of the complainant, First Information Report was registered against the accused Prakash Nag under Sections 363, 376 (2) (3) of the IPC and Section 4, 6 of the POCSO Act vide Ex.P-4 and investigation was taken up. During the investigation, the victim told in her supplementary statement that on the date of the incident, the accused Prakash Nag and Sanjay Thakur left her in the forest depot jungle at around 8.00 pm on a blue motorcycle. While returning, Sanjay Thakur had threatened the victim by saying that if she reveals his name, he would kill her. Accused Sanjay Thakur was taken into custody and questioned and he confessed to the crime in his memorandum 4 statement (Ex.P-12), on the basis of which a Yahama Motor Cycle was seized vide Ex.P-13. He was arrested on 10.12.2019 under Section 363, 506 IPC vide Ex.P-14 and information of his arrest was given to his family member vide Ex.P-16 and after presenting before the Court of Additional Sessions Judge, Kondagaon, he released on bail bond. Accused Prakash Nag was duly arrested on 15.12.2019 and an arrest report was prepared vide Ex.P-15 after he confessed to the crime vide Ex.P-7 and information of his arrest was given to his family member vide Ex.P-17. Crime Details Form was prepared vide Ex.P-3. After taking consent from the complainant vide Ex.P-5, the victim was sent for her medical examination to District Hospital, Kondagoan, wherein Dr. Divya Tiwari (PW-6) had medically examined the victim and given her report vide Ex.P-8. Birth certificate (Article A) of the victim has been seized vide Ex.P-1. Cutting of public hair, two vulval swabs, two vaginal swabs, vaginal smear, vaginal washing and uretheral swab and a dark blue colour panty of the victim were seized vide Ex.P-2. Jaccha Baccha Card (Article B) has been seized vide Ex.P-6. A memo was sent for query of seized undergarment of the victim and query report was obtained vide Ex.P-9. Accused Prakash Nag was medically examined vide Ex.P-10 and a brown colour used undergarment was seized from him vide Ex.P-18. A memo was sent for query of seized undergarment of the accused Prakash Nag and query report was obtained vide Ex.P-11. The statement of the victim was recorded under Section 164 Cr.P.C. 5 The properties seized from the victim were sent to Regional Forensic Science Laboratory, Jagdalpur for chemical testing vide Ex.P-19 and receipt of the same was obtained vide Ex.P-20 and report was obtained vide Ex.P-25. The properties seized from the accused were sent to Regional Forensic Science Laboratory, Jagdalpur for chemical testing vide Ex.P-22 and receipt of the same were obtained vide Exs.P-23 & P-24 and report was obtained vide Ex.P-26. 4. Statements of the complainant, victim and witnesses recorded and on finding sufficient evidence of crime against the accused/appellants, the Charge-Sheet No. 265/2019 was presented before the Additional Sessions Judge (F.T.C.) Kondagaon, District- Kondagaon (C.G.) on 26.12.2019. 5. In order to prove its case, the prosecution has recorded the statements of PW-1 Vidhan Haldar, PW-2 Victim, PW-3 Victim's mother, PW-4 Krishna Sahu, PW-5 Shriraj Manikpuri, PW-6 Dr. Divya Tiwari, PW-7 Rohit Gaikwad, PW-8 Dr. Uday Anand Dhruv, PW-9 Woman constable Gayatri Sori, PW-10 Sub-Inspector Namita Tekam, PW-11 Constable Biju Yadav. 6. Accused Prakash Nag was charged under Sections 366/34, 376 (3) of IPC and Section 6 of the POCSO Act and accused Sanjay Thakur was charged under Sections 366A, 506 (B) of IPC and Section 17 of the POCSO Act. When these charges were read out to them and explained to them, they denied the charges and 6 claimed trial. When their statements were recorded under Section 313 of Criminal Procedure Code, the accused stated that they are innocent and have been falsely implicated. They expressed their desire not to produce defence evidence. 7. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 06.10.2021 convicted and sentenced the appellants in the manner mentioned in the opening paragraph of this judgment, against which these appeals under Section 374(2) of the CrPC have been preferred calling in question the impugned judgment. 8. Mr. Raza Ali, learned counsel for appellant – Sanjay Thakur in CRA No. 1255 of 2021 vehemently argued that submitted that the conviction of the appellant is totally erroneous and against the evidence presented in the case because in the FIR and the statement recorded under Section 161 Cr.P.C. and in the Court statement recorded under Section 164 Cr.P.C., there is no any allegation against any person except co-accused Prakash Nag and after more than 1 ½ months of the incident, supplementary statement of the victim has been recorded, wherein also against the present appellant there is allegation for helping to co-accused Prakash Nag for abduction, but in the Court statement, there is allegation of rape against the present appellant, which the learned trial Court has failed to consider the entire fact in the eye 7 of law. He further submitted that from perusal of the statement of the victim, it prima facie appears that she was under pressure of the family and her statement was record in the Court in presence of her mother, therefore, she has given false statement against the appellant. There are contradictions and omissions in the testimony of the victim with respect to allegations made in the FIR. The medical report also does not corroborate the version of the victim because as per the statement and given by Dr. Divya Tiwari (PW-6), there is no injury caused to the victim in her whole body. He also submitted that there is no evidence regarding his active participation in the commission of offence, the prosecution has not proved the case against the present appellant beyond all the reasonable doubt. Hence, the appellant is entitled for the benefit of doubt. 9. Mr. Pravin Kumar Tulsyan, learned counsel for appellant – Prakash Nag in CRA No. 1312 of 2021 vehemently argued that though as per case of the prosecution, victim was minor on the date of incident, but this fact has not been proved by adducing lawful evidence, hence the finding recorded by learned trial Court in this regard is not sustainable. He further argued that learned trial Court erred in reading FSL report of the articles seized from victim (Ex.P-25) as well as FSL report of the articles seized from accused (Ex.P-26) which also does not prove the incident of rape. He further submitted that the learned trial Court has failed to properly appreciate the evidence led by the prosecution and 8 has wrongly convicted the appellant. The prosecution failed to prove the case against the appellant beyond reasonable doubt. He contended that there is no independent witness, which does not corroborate the evidence of the victim. He lastly submitted the age of appellant at the time of commission of alleged offence was 23 years and at present he is aged about 29 years old and the sentence of life imprisonment which would mean imprisonment for rest of the natural life, is too harsh and instead, the same is requested to convert to rigorous imprisonment for 20 years. 10. On the other hand, learned State counsel for the State/respondent submitted that the accused appellants have committed a heinous crime of rape against minor girl, aged about 12 years 06 months and 22 days by abducting her and also wrongfully confining her for whole night and the same has been duly proved by the prosecution beyond reasonable doubt. As such, the judgment of conviction and sentence awarded by the learned trial Court is just and proper warranting no interference. 11. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 12. The first question for consideration before this Court would be, whether the trial Court has rightly held that on the date of incident, the victim was minor? 9 13. When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredient to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years. 14. In Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263, the Hon’ble Supreme Court laid down the guiding principles for determining the age of a child, which read as follows: “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under : “12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, 10 prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating 11 the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, 12 would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.” 15. In the present case, the victim's mother PW-03 has been examined and while examining PW-10 Sub-Inspector Namita Tekam, the seizure of the original birth certificate (Article -A) seized vide Ex.P-1 and the Jaccha Baccha Card (Article -B) seized vide Ex.P-6 have been certified. The date of birth of the victim is mentioned as 11.04.2007 in the aforesaid birth certificate (Article -A) and the Jaccha Baccha Card (Article -B). Regarding the date of birth of the victim, her mother (PW-3) has stated in her judicial statement that the age of her daughter victim is 12 years 13 and she had given birth certificate (Article-A) and Jaccha Baccha Card (Article-B), which were seized by the police. Both the above prosecution witnesses have corroborated the date of birth of the victim and have stated that her date of birth was 11.04.2007, which could not be refuted by the defence during cross- examination. 16. In the above circumstances, the evidence of PW-03, mother of the victim and PW-10, Sub-Inspector Namita Tekam proves the fact that the date of birth of the victim on the date of incident was 11.04.2007 and the incident occurred on 03.11.2019. Thus, the prosecutrix/victim was 12 years 6 months 22 days old on the date of incident and was a minor below 18 years of age and came under the category of a child. Thus, the prosecution has been successful in proving the victim to be a minor (child) under Section 2(d) of the POCSO Act on the date of incident. 17. Now it has to be seen whether the accused have committed the crime of luring the victim and taking her away, raping her, threatening to kill her and committing aggravated penetrative assault. 18. In this regard, the statement of the victim PW-02 has been recorded by the prosecution. PW-02 has stated in her judicial statement that she knows the accused. The incident took place about two-four months ago. It was about 6.00 in the evening when she was playing in the Bandha Talab Garden. At that time 14 both the accused came on a motorcycle and told her that her mother is calling her and took her inside the Kondagaon depot. Inside the depot, both the accused together forcibly removed her clothes and did bad things with her one by one. The accused lay on top of her and held her chest and put their urinator in her urinal. They kept her there the whole night and were doing the same wrong things with her again and again. This witness further stated in her main examination that in the morning they left her near the garden and went away. Her mother came searching for her near the garden. She told her mother about the incident and then went to the police station. Her mother filed a report in the police station. The police had gone with her to the crime scene on the day of filing the report. The police had prepared the scene map of the crime scene as per her description which is Ex.P-3. The police then took her to the medical examination center. She was taken to the District Hospital Kondagaon for examination. The police took her to Keshkal Court. She told the Magistrate about the incident in Keshkal Court. The police interrogated her in the police station. 19. This witness has admitted in her cross-examination conducted on behalf of accused Sanjay Thakur that she had told her mother about the entire incident, after which her mother had lodged a report in Kondagaon police station and the police had also questioned her about the incident. It is also said to be true that while interrogating the police she did not tell that accused Sanjay 15 Thakur came near the garden and took her from there. It is also admitted to be true that while interrogating her she did not tell that inside the depot both the accused together forcefully removed her clothes and after that both the accused did bad things with her one by one. She did not even tell that the accused slept on her and held her chest and put their urinator in her urination place. She did not even tell that they kept her there at night and were doing the same kind of bad things with her again and again. This witness has also admitted to be true that while giving statement in the court of Keshkal she did not tell the above mentioned things about accused Sanjay Thakur. 20. In the cross-examination conducted on behalf of accused Prakash Nag, in paragraph 10, this witness has admitted to being correct that during interrogation she had not told that inside the depot both the accused together forcibly removed her clothes and thereafter commit misdeeds with her one by one. It was also not told that the accused lay on top of her and held her chest and put their urinal in her urinary area. It was also not told that they kept her there the whole night and were repeatedly committing misdeeds with her. 21. On observing the statement of this witness recorded by the police under Section 161 Cr.P.C. and the statement recorded before the Court under Section 164 Cr.P.C., the fact stated by the victim in her main examination that the accused Sanjay Thakur had also raped her on the date of the incident is not there in the statement 16 recorded under Section 161 Cr.P.C. and Section 164 Cr.P.C. In such a situation, it appears that the victim has stated before the Court for the first time that the accused Sanjay Thakur raped her by forcefully having intercourse with her. 22. 22. The mother of the victim, PW-3, has stated in her judicial statement that she recognizes the accused. The victim is her daughter. The incident took place on 03 November 2019. Her daughter victim had gone to play in the park near Bandha Talab with her friends from 9.30 am. When the victim did not reach home till evening, she went to look for her but could not find her. When her daughter did not return home till late night, she went to Kondagaon police station and informed them verbally. The next day between 10.30 and 11.00 am, a boy named Rohit called her and told her that her daughter is sitting in the park. She immediately went to the park and found her daughter sitting outside the park and crying. On asking, she was not saying anything, so she took her home with her. At home, she asked her daughter where she was, she told that she was playing in the park around 6.00 in the evening when two boys took her on their motorcycle to Forest Depot Kondagaon saying that her mother was calling her. This witness further stated in her main examination that her girl victim told her that both the boys beat her and also misbehaved with her. When she screamed, they stuffed a cloth in her mouth and tied both her hands. Her girl victim told that both the boys forcefully had physical relations with 17 her, after that one boy went home at night, and the other kept her with him the whole night. On the information given by his girl victim, she went with her to Kondagaon police station on the same day and filed a report of the incident. The police registered the report as per her information, which is Ex.P-4. Her girl victim told her when he asked that one of the accused was calling the other one Sanjay, she told this to the police. The police caught a boy named Sanjay and brought him, on interrogation he told the name of the other boy as Prakash Nag. While filing the report, she told the names of both of them in the police station. After writing the report, the police took her consent for conducting a private examination of his daughter, which is Ex.P-5, After that, his daughter victim was taken for medical examination. This witness has further stated in her examination-in-chief that slides were seized by the police personnel at the police station when the lady constable brought them from the hospital and presented them, which is Ex.P-2. 23. This witness in the cross-examination done on behalf of accused Sanjay Thakur has stated that it is wrong that she did not tell the police during interrogation that "Her daughter victim told her that both the boys beat her and also misbehaved with her, when she screamed they stuffed a cloth in her mouth and tied both her hands, her daughter victim told that both the boys forcefully had physical relations with her, after that one boy went home at night, and the other kept her with him for the whole night." But she has 18 said that if the above mentioned things told by her main examination are not written in her police statement Exs.D-1 and D-2, then she cannot give the reason for it and in paragraph 08, this witness has stated that it is correct that her daughter victim while giving statement in Keshkal Court had told the name of only one accused Prakash about whom this witness has information. It is also said to be true that her daughter victim was not called to the Kondagaon police station for identification proceedings and she did not know Sanjay Thakur earlier. 24. In the cross-examination conducted on behalf of accused Prakash Nag, this witness has admitted in paragraph 10 that the victim did not tell her about the wrongdoings of Prakash Nag at home. It is also said to be true that while filing the report in the police station, the name of the accused Prakash Nag was not told to him by the victim. It is also admitted to be true that she came to know the name of the accused Prakash Nag after the police told her. It is also said to be true that his daughter did not get the victim to identify Prakash Nag. 25. Thus, the facts revealed in the above cross-examination of this witness do not show that accused Sanjay Thakur had sexual intercourse with the victim on the date of the incident. If accused Sanjay Thakur also had sexual intercourse with the victim, then certainly the victim would have told her mother about it and the victim's mother would have told about it while filing the FIR and while giving a statement to the police. 19 26. Dr. Divya Tiwari (PW-6) has stated in her examination in chief that on 05.11.2019 at 12.40 pm, the victim was brought before her for genital examination by lady constable Gayatri Sori No. 671 of Police Station Kondagaon. She started examining the victim on the same date at 12.45 pm, and found that Labia majora and minora were not fully developed. Redness was also found in the foreskin and internosis. Her hymen was old and torn at 6 o'clock clockwise. Redness was also found in that. Signs of immediate sexual intercourse with the victim were found. There were no marks of injury on the external parts of her body and private parts. She prepared her pubic hair, two vulval swabs, two vaginal swabs, vaginal smear, vaginal washing, urethral swab and advised for chemical tests to test whether sexual intercourse had taken place with her or not. She referred her to the radiologist by advising her to get an X-ray done for determining her age. Her test report is Ex.P-8. This witness has further stated in his examination-in-chief that on 05.11.2019, the police station Kondagaon presented the seized panty of the victim before her for query and sought a query to the effect that 01- whether there is human semen on the seized panty or not. 02- If any other fact is reflected, then clarify. On examining the panty of the victim, she found that it was a dark blue panty on which dark brown stains were visible. She advised for chemical test of the stains to determine whether there is human semen on it or not and sealed it and handed it over to the same constable. Her query report is 20 Ex.P-9. This witness has admitted in her cross-examination that she had seen the body of the victim, but no marks of injury were found internally or externally. If two persons forcefully assault a victim then it is possible that her internal body may get injured. In this case there was no injury on the body of the victim. She found her vagina red and hence she stated that intercourse had taken place at that time. She has also accepted it to be true that she had sent the victim for chemical examination to confirm that intercourse had taken place. She had advised for X-ray to ascertain the correct age of the victim. 27. Thus, the above statements of this witness confirm the existence of immediate sexual intercourse with the victim. However, this witness has accepted the suggestions of the defence in her cross-examination that if two persons forcefully assault the victim, then it is possible that her internal body may get injured, but accepting the above suggestions does not have any adverse effect on the case of the prosecution because this case is related to the POCSO Act and in such a situation, there is no place for consent. 28. The evidence of the victim is the most important evidence in relation to the rape incident, which needs to be discussed minutely. It is not necessary that the human sperm is found in the FSL report. There is no need to go into the details of the extent to which the urinator of the man had entered. It is also not 21 necessary that the vaginal membrane had been torn, because the penetration of the penis to any extent is sufficient for rape. 29. 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 prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. 30. 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. 31. 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 difficulty 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. 22 32. Applying the law laid down by the Supreme Court in the cases (supra) to the facts of the case in hand and as observed hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the victim. They are found to be reliable and trustworthy against accused Prakash Nag. Therefore, without any further corroboration, the conviction of the accused Prakash relying upon the sole testimony of the victim can be sustained. 33. So far as the allegation against accused Sanjay Thakur is concerned, there is no evidence regarding his active participation in the commission of offence, the prosecution has not proved the case against him beyond all the reasonable doubt. Thus, we are of the considered opinion that benefit of doubt ought to have been given to accused/appellant Sanjay Thakur. 34. For the foregoing reasons, CRA No. 1255 of 2021 filed on behalf of appellant- Sanjay Thakur is allowed and his conviction & sentences are hereby set aside. He is on bail. He is not required to surrender. His bail bonds are cancelled and sureties stands discharged. Keeping in view the provisions of Section 437-A CrPC, appellant- Sanjay Thakur is directed to furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant 23 judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 35. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt against accused/appellant Prakash Nag 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 appellant/convict. 36. Consequently, the conviction and sentence as awarded by the trial Court to appellant Prakash Nag under Section 366 of the IPC is hereby upheld. So far as the conviction under Section 6 of the POCSO Act read with Section 376(3) of IPC is concerned, the same is also upheld, however, considering the submission of learned counsel for the appellant, 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. 37. The appellant is stated to be in jail since 15.12.2019 being the date of arrest. He is directed to serve out the sentence as modified above. 38. Accordingly, CRA No. 1312 of 2021 filed on behalf of appellant- Prakash Nag is partly allowed to the extent indicated hereinabove. 24 39. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also 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 High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Chandra