1 2025:CGHC:7370 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1394 of 2019 Sandeep Toppo S/o William Toppo Aged About 20 Years R/o Birsingha, Police Station- Lailunga, District- Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station Lailunga, District- Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Ashish Gupta, Advocate For Respondent/State : Mr. Atanu Ghosh, Dy. Govt. Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 10/02/2025 1. The present criminal appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 22.08.2019, passed by learned Additional Sessions Judge, Gharghoda District Raigarh, in Special Criminal Case (POCSO Act) No. 7/2018, whereby the appellant has been convicted for the offence under Sections 376(2) Digitally signed by VEDPRAKASH DEWANGAN 2 (i), 377 of IPC and Section 6 of POCSO Act and considering the provisions of Section 42 of the POCSO Act, the sentence of R.I. for 10 years with of fine Rs. 2000/- in default of payment of fine further R.I. for 30 days has been awarded only for the offence under Section 6 of POCSO Act. 2. The brief facts of the case are that the victim/PW-1, aged about 5 years, had gone to the house of the appellant on 29.01.2017, at about 8:30 am. The appellant took her to inside his house and after removing her clothes committed rape upon her. He also committed unnatural sexual intercourse with the victim. At about 9:30 am, she came back to her house by crying and informed the incident to her mother/PW-2. Her mother has informed the incident to other relatives and persons of the vicinity, and had gone to lodge the report. ******* FIR (exhibit P-1) was registered against the appellant for the offence under Section 376 of IPC and Sections 4 and 6 of POCSO Act with the allegation that on 29.01.2017 the appellant committed rape and unnatural sexual intercourse with the victim. Spot map (exhibit P-5) was prepared by the police. The victim was sent for her medical examination to Community Health Centre, Lailunga, but there was no lady doctor available at Community Health Centre, Lailunga, she was referred to KGH Hospital, Raigarh, where she was being examined by Dr. Smt. Pratima Bhagat, who gave report/Exhibit P-3. Since Dr. Pratima Bhagat had gone to her further studies and was not available, the said medical report of the victim has been proved by Dr. T.K. Sahu/PW-6, who was also working along with her. According to the MLC report, there is redness just at the clitoris, but 3 no active bleeding was seen and the doctor has opined that no definite opinion about the recent intercourse can be given right now and the opinion can be given under anesthesia to be done. For that, the patient is advised admission. The victim was referred to radiologist for age estimation. ******* Two slides of her vaginal swab were prepared, sealed and handed over to police for its chemical examination. Birth certificate of the victim has been seized vide seizure memo/exhibit P-6. The underwear of the victim has also been seized vide seizure memo/exhibit P-7. The appellant was arrested on 31.01.2017 and he too was sent for his medical examination to Community Health Centre, Lailunga, where he was medically examined by Dr. Y.S. Sarathia. He found the appellant capable to perform sexual intercourse. The progress report card of class-4 of the appellant was seized vide seizure memo/exhibit P-16. The underwear of the appellant has also been seized vide seizure memo/exhibit P-17. The vaginal slides and clothes of the victim as well as appellant were sent for chemical examination to Regional FSL Raigarh. From where FSL report has been received and according to which the semen and sperm were absent in the sent articles. ******* Statement of the witnesses under Section 161 of CRPC and statement of the victim under Section 164 of CRPC have been recorded and after completion of usual investigation charge sheet was filed against the appellant for the offence under Sections 376 and 377 of IPC and Sections 4 and 6 of POCSO Act before the learned trial Court. 4 3. The learned trial Court has framed charge against the appellant for the offence under Sections 376(2)(i) and 377 of IPC and Section 6 of POCSO Act. The appellant denied the charge and claimed trial. 4. In order to prove the charge against the appellant, the prosecution has examined as many as 6 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. Two defence witnesses have been examined by the appellant. 5. After appreciating the 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. 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. He would further submit that there is no injuries found on the body of the victim to support her allegation that she was subjected to sexual intercourse by the appellant. There was previous enmity with the family members of the victim, which has given in colour of the present offence. He would further submit that there are material inconsistencies in the evidence of victim with that of her parents, and only to settle their personal grievance with the appellant, they have made instrumental the victim. The evidence led 5 by the prosecution is not sufficient to hold guilty of the appellant and he is entitled for acquittal. 7. On the other hand, learned counsel for the State opposes and has submitted that the prosecution has proved its case beyond reasonable doubt, but for minor omissions or contradictions which are trivial in nature, the evidence of the prosecution witnesses are fully reliable and conviction can be made on the basis of the evidence led by the prosecution. The evidence of the victim is fully reliable, which need not any corroboration. He would further submit that even if no injuries have been found on the body of the victim, looking to the nature of the offence and the manner in which she was subjected to sexual intercourse by the appellant, injuries may not have been possible to receive by the victim. He would also submit that in every case, the injuries are not necessarily to be found on the body of the victim and it depends upon the facts of each case. In the present case, the allegation of unnatural sexual intercourse is also there. He would further submit that redness has been found on the private part of the victim, which clearly reflects from her MLC report and therefore, the allegation leveled by her has duly been proved by the prosecution. She being the minor girl subjected to rape and unnatural sexual intercourse by the appellant for which the learned trial Court has rightly convicted and sentenced him, which is absolutely justified and is not required to be interfered with. 8. I have heard learned counsel for the parties and perused the record. 6 9. The age of the victim has not been disputed by the learned counsel for the appellant. However, the prosecution has proved the age of the victim by producing her birth certificate/article A-1, which has been issued by the Sub-Register, Birth and Deaths, Gram Panchayat, Birsingha, District Raigarh. According to the birth certificate, the date of birth of the victim is 21.02.2012. The said birth certificate is an extract of the official record kept under the Office of Registrar, Birth and Deaths in discharge of the official duty and it is admissible under Section 35 of the Indian Evidence Act, 1872. Further, during the examination of victim/PW-1, her mother/PW-2, maternal uncle/PW-5 and also Dr. T.K. Sahu/PW-6, the age of the victim has not been challenged by the appellant. Therefore, there is no dispute in the case that the victim is aged about 6 years. 10. So far as the offence of rape and unnatural sexual intercourse are concerned, I again examine the evidence of the victim/PW-1. She stated in her evidence that she knew the appellant, who is her maternal uncle in relation and residing nearby her house. On the date of incident, when she had gone to the house of the appellant, he committed rape upon her and thereafter he committed unnatural sexual intercourse also by inserting her penis on her mouth. She started crying and returned back to her house and informed the entire incident to her mother. Her mother has examined her private part and thereafter the appellant was being called to her house and her parents have assaulted him. She further stated that at the time when the appellant was committing rape upon her, she was feeling pain on her private part. 7 ******* In cross-examination, this witness has remained firm and firmly denied the suggestion given by the defence. Nothing could be elicited from the evidence of this witness, which makes her evidence doubtful. Despite having such a tender age, the victim/PW-1 has firmly stated against the appellant that he committed rape upon her and unnatural sexual intercourse. 11. PW-2, who is the mother of the victim, has stated in her evidence that on the date of incident, the victim had gone to the house of the appellant for playing. She had gone at about 8:30 am and about 9:30 am she came back by crying and she informed the incident that the appellant has committed rape upon her. She saw her private part, in which injuries were visible and thereafter she informed the incident to her family members and other persons of the vicinity and lodged the report. ******* This witness has also denied any previous dispute between the appellant and her brother. This witness has also remained firm in saying that at about 9:30 am the victim came back to her house by crying and informed the incident that the appellant has committed rape and unnatural sexual intercourse with her. 12. PW-6/Dr. T.K. Sahu, has proved the medical report of the victim (exhibit P-3). He stated in his evidence that the victim was being medically examined by Dr. Pratima Bhagat, but since she was outside for her further studies and she was his subordinate, therefore, he was well acquainted with the handwriting and signature of Dr. Pratima Bhagat, and therefore, he proved the medical report 8 (exhibit P-3). In cross-examination, he denied that the doctor has not examined her oral cavity. He admitted that it is not possible for a doctor to give any opinion with respect to the oral sex. This witness has proved the contents of the medical report (exhibit P-3). He further stated that the victim was admitted in the hospital for further examination after anesthesia and she was medically examined by Dr. Deepika Singh. Since Dr. Deepika Singh is also on long leave and she was also his subordinate, therefore, he was also well acquainted with the handwriting and signature of Dr. Deepika Singh. On examination by Dr. Deepika Singh, she found that the hymen of the victim was ruptured and her report is Exhibit P-27. ******* In cross-examination, he admitted that the internal examination of the victim has not been conducted by Dr. Pratima Bhagat, but it was conducted by Dr. Deepika Singh. Dr. Deepika Singh could not find any active bleeding on her private part. 13. In the matter of ‘Satyapal v. State of Haryana’, (2009) 6 SCC 635, the Hon’ble Supreme Court has considered the Modi’s Medical Jurisprudence and held that: “18. In Modi's Medical Jurisprudence, 23rd 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 9 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. … * * * 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 perineum.” 14. In the matter of ‘State of Punjab v. Gurmit Singh and others’, (1996) 2 SCC 384, the Hon’ble Supreme Court has held that: “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.” 10 15. From all these evidence, when the victim remains firm in saying that she was subjected to sexual intercourse and unnatural sexual intercourse by the appellant, injury has been found on her body, her mother has also supported the case of the prosecution and corroborates the evidence of the victim, it is found that the learned trial Court has rightly appreciated the evidence available on record and convicted and sentenced the appellant. 16. Therefore, I do not found any ground to upset the finding recorded by the learned trial Court and therefore, the appeal filed by the appellant is devoid of merits and is hereby dismissed. 17. The appellant shall undergo the entire jail sentence as awarded by the learned trial Court. 18. 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. 19. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved