1 2025:CGHC:7371 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1402 of 2019 Hemant Devdas S/o Jagannath Gaada Aged About 20 Years R/o Village Bohardih, O.P. Gidhpuri, Police Station Palari, District - Balodabazaar - Bhatapara Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Police Station - Palaari, District - Balodabazaar - Bhatapara Chhattisgarh. ... Respondent For Appellant : Mr. Anchal Kumar Matre, Advocate. For Respondent/State : Mr. S.S. Ubeja, P. L. for the State. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 10/02/2025 1. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure 1973, against the impugned judgment of conviction and sentenced dated 29.08.2019 passed by learned Special Judge, (POCSO) Balodabazar in Special Criminal Case No.36 of 2018, whereby the appellant has been convicted for the offence under Section 367 of IPC and Section 4 of POCSO Act and have sentenced VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.03.17 16:56:42 +0530 2 under Section 4 of POCSO Act for R.I. for 10 years and fine of Rs. 1,000/- in defualt of payment of fine further R.I. for 3 months. 2. The brief facts of the case are that the mother of the victim PW-3 has lodged a written complaint Ex.P/6 to the police with the effect that on 03.05.2018 at about 7:00 p.m., her minor daughter was being taken to her house by her neighbor and informed that the appellant has committee rape upon her. When she examined her private part, she found certain abnormalities and then she made a written complaint Ex.P/6 to the police. On the basis of written complaint the FIR Ex.P/7 was registered against the appellant for the offence 376 of IPC and Section 4 of POCSO Act. The victim was sent for her medical examination to District Hospital Balodabazar, where PW-10 Dr. Neha Gangotri has medically examined her and gave report Ex.P/16. While medically examining the victim the doctor has found her hymen was torn and laceration seen, mild edema (swelling) over vulval region and After her medical examination the doctor has opined that the above mentioned injuries can be caused friction with hard and blunt object and also by act of intercourse. Two slides of vaginal swab were prepared, sealed and handed over to the police for its chemical examination. Spot map Ex.P/2 was prepared by the patwari and Ex.P/10 was prepared by the police. The underwear and top of the victim have been seized vide seizure memo Ex.P/8. With respect to the age and date of birth of the victim the School register Ex.P/14–C has been seized by the police and after retaining its attested true copy, the original school register has been returned back to the school. The appellant was arrested on 04.05.2018 and he too was sent for its medical examination to Community Health Center Palari, where he 3 was medically examined by PW-14 Dr. B.S. Dhruv who found him capable to perform sexual intercourse. The vaginal slide of the victim and her underwear and top, the plastic bag seized from the spot and also the underwear of the appellant were sent for its chemical examination to State FSL, Raipur from where report Ex.P/32 was received and according to the FSL report the semen and sperm were found on the sent articles. The statement of the witnesses under Section 161 of Cr.P.C. has been recorded and statement under Section 164 of Cr.P.C. of the victim has also been recorded and after completion of usual investigation charge-sheet has been filed against the appellant for the offence under Section 376 of IPC and Section 4 of POCSO Act, before the learned trial Court. 3. The learned trial court has framed charge against the appellant for the offence under Section 376 of IPC and Section 4 of POCSO Act. The appellant denied the charges and claimed trial. 4. In order to established the charge against the appellant the prosecution has examined as many as 16 witnesses and statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him plead innocence and submitted that he has been falsely implicated in the offence and he also stated that there was a dispute between his father and the father of the victim for which he has been falsely implicated in the offence. 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence this appeal. 4 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witness, which cannot be made basis for his conviction in the present offence. There is no sufficient evidence with respect to age of the victim further the victim was a tutored witness. Her mother PW- 3 has admitted that there exists a dispute between the father of the appellant and father of the victim. He would also submit that the identification of the appellant is also doubtful that he committed the offence with the victim, there is no clinching and cogent evidence produced by the prosecution to hold conviction of the appellant and therefore, in absence of any material evidence, the appellant is entitled for his acquittal. 7. On the other hand learned counsel for the State opposes and have submitted that from the evidence of victim the guilt of the appellant has duly been proved which further supported her medical report in which the injuries have been found on the body of the victim. The victim has duly identified the appellant that he committed rape upon her which has not been specifically challenged by the defence in her cross- examination. From the evidence of the victim PW-4, it does not appears to be a tutored witness rather he firmly denied the suggestion given by the appellant and stuck in saying that the appellant has committed rape upon her. Her evidence is not required to be corroborated by any other piece of evidence and her evidence alone is sufficient to hold conviction of the appellant. Her parents have also supported the case of the prosecution. The age of the victim has not been specifically challenged by the defence therefore, there is no need 5 to adduce further evidence with respect to the age of the victim. However, she is aged about 11 years which has been proved by her school record Ex.P /14-C which is proved by PW-8. Therefor, there is overwhelming evidence available on record against the appellant on which learned trial Court has rightly convicted him and sentenced him which need no interference. 8. I have heard learned counsel for the parties and perused the record of the case. 9. The prosecution has proved the age of the victim by producing the school admission and discharged register Ex.P/14-C which is sought to be proved by PW-8 who is the headmaster of the school. He stated in his evidence that the police has seized school register from him with respect to the date of birth of the victim and after retaining the attested true copy of the school register Ex.P/14-C, the original register was return back to him. As per the entries made in the school register, the date of birth of the victim is 19.10.2007. He also issued a certificate on the basis of the school register which is Ex.P/15. In cross-examination he admitted that the birth certificate of the victim has not been seized from him and the police has asked only for the school register. He denied that the date of birth of the students are to be recorded in the school register on the basis of the information given by their parents. He however, stated that the date of birth of the students are to be recorded on the basis of their birth certificate. He further stated that although in the school register Ex.P/14-C, there is no mention about any document produced by her parents but there is a separate register which is called as affidavit register in which all the details are mentioned. He also denied that the father of the victim has not 6 produced any birth certificate of her at the time of her admission. He further denied that since he has not got admitted in the school therefore, his signature is not there in the school register. 10. PW-4, the victim, who stated that her age is 11 years the same have not been challenged by the defence in her cross-examination. In the evidence of PW-2 father of the victim and PW-3 mother of the victim also, there is no challenge of the age and date of birth of the victim. The age of the victim shown by her and her parents are duly corroborated by the school record Ex.P-14-C which is proved by PW-8 headmaster of the school. When the victim was being produced before the doctor for her medical examination, she also written in MLC report that she is aged about 11 years and the doctor has also not been cross-examined on the point of her age. All these evidences would clearly shows that the appellant has not changed the age of the victim and from the evidence it is found proved that the victim was aged about 11 years at the time of incident. 11. So far as the offence of rape is concerned, I examined the evidence of the victim PW-4. She stated in her evidence that she is well acquainted with the appellant. He is the resident of her own village. On the date of incident when she was playing Near the house of other villager and went to answering the call of nature, the appellant gagged her mouth took her to some distance and after removing her cloths committed rape upon her. She started crying and then the villager in whose house she was playing has taken her to her own house and then she informed the incident to her mother. Her parents have taken her to police station for lodging of the report. In cross examination she remained firm in saying that it is the appellant who committed rape 7 upon her. Although she admitted that when the appellant gagged her mouth and took her with him she could not shouted, though she further admitted that when the appellant removed his cloths and her cloths, she could not shouted and even when appellant committing rape upon her she could not shouted but she voluntarily stated that the appellant gagged her mouth. She firmly denied the suggestion given by the defence that the person who gagged her mouth committed rape upon her is not the appellant and firmly stated that it is the present appellant who committed the incident. 12. Considering the age and physical condition of the victim that she being minor girl aged about 11 years and the appellant was aged about 20 years, he obviously over powered on the victim, he gagged her mouth and in that condition victim might not have been in position to protest or to raise alarm but the fact remains that she remain firm in saying that it is appellant who committed rape upon her. 13. PW-3 is the mother of the victim who stated in her evidence that on the date of incident her minor daughter had gone to play near her house and when she went for answering the call of nature the appellant took her towards some distance and committed rape upon her. Her daughter was being taken back by her neighbor and informed the incident. She saw the private part of the victim and found injuries over there. She informed the incident to her husband and other persons and lodged report against the appellant. She too have denied the suggestion given by the defence that victim was being raped by other persons and not by the appellant. She also firmly stated that the appellant has committed rape upon her daughter. Although she admitted that there was a dispute between the family of her neighbor 8 and the family of the appellant, she also remained firm in cross- examination and the defence could not extracted any material from her to disbelieve her evidence that she is making false allegation against the appellant. PW-2 the father of the victim have also supported the prosecutions case that he was being informed about incident by her daughter and he lodged report. Nothing specific has come in favour of the appellant and he too have stated that the appellant has committed rape upon his daughter. 14. PW- 6 is the neighbor who took the victim to the house when she found her standing outside of her house by crying, she stated in her evidence that on the date of incident, when she was going to garbage pit nearby her house, the victim was found standing who was crying and asked her to left her to her house. She took her to her house and came back. She subsequently came to know that the appellant has committed rape upon victim. She is the witness to the fact that she left the victim to her own house which is supported the evidence of her mother that the victim was being brought back by this witness PW-6. 15. Dr. Neha Gangotri who medically examined the victim and has found injuries on her private part there was swelling found on vulval region and her hymen was ruptured redness and swelling were also seen on her private part and there was a sign of struggle on her body. In cross- examination nothing specific has been suggested by the defence that the injuries found on the body of the victim could have been caused by some other reasons. Though she admitted that the victim could have received injuries on her private part by dashed by hard and blunt object but it is not suggested to the victim that while playing with others she was dashed with any hard and blunt object. 9 16. In the matter of State of Punjab Vs. Gurmit Singh, 1996 (2) SCC 384, The Hon’ble Supreme Court has held in para 21 of its judgment:- 21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The 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 inspirers 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. 17. From all these evidences it cannot be said that there is lack of cogent and clinching evidence on which the conviction can not be sustained rather from the evidence of victim PW-4 and Doctor PW-10 alone the conviction of the appellant can be sustained and hold that the appellant has committed rape upon the victim. Therefore, we find no reason to 10 upset well reasoned finding recorded by the learned trial Court convicting the appellant for the alleged offence of commission of rape upon the victim. 18. In the result, the appeal filed by the appellant fails and hereby dismissed. The appellant shall undergo entire sentence awarded by the learned trial Court. 19. 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 High Court Legal Services Committee or the Supreme Court Legal Services Committee. 20. The trial Court record 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 Vaibhav