1 2025:CGHC:11041-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2038 of 2023 1 - Bhawesh Rajak S/o Ram Dulare Rajak Aged About 36 Years R/o Kodu Chowk Karbala, Police Station City Kotwali, Tehsil And District Bilaspur (C.G.) ... Appellant versus 1 - State Of Chhattisgarh Through - Station House Officer, Police of Police Station - Tarbahar, District Bilaspur (C.G.) ... Respondent For Appellant : Mr. Ashutosh Shukla, Advocate. For State/Respondent : Mr. N.K. Jaiswal, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha , Chief Justice 06-03-2025 1. The present criminal appeal under Section 374(2) of the Cr.P.C. against the impugned judgment of conviction and order of sentence dated 20-09-2023 passed by the learned Additional Sessions Judge, Second Fast Track Special Court, Bilaspur in Special Criminal Case (POCSO Act) No.178/2022 whereby the appellant has been convicted and sentenced in the following manner with a direction to run all the jail sentences concurrently:- Digitally signed by MOHAMMAD AADIL KHAN 2 Conviction Sentence Under Section 5(m)(n)/6 of POCSO Act R.I. for 20 years and fine of Rs.3000/-, in default of payment of fine, further R.I. for 1 year The appellant has also been convicted under Section 376(2)(f), 376AB of the IPC. Since the appellant has been awarded R.I. for 20 years and fine of Rs.3000/-, in default of payment of fine, further R.I. for 1 year for his conviction under Section 5(m)(n)/6 of the IPC, no separate sentence has been awarded to him for his conviction under Section 376(2)(f) and 376AB of the IPC. 2. Brief facts of the case are that on 10-10-2022 the mother of the victim PW-2 lodged a written complaint Ex.-P/4 to the police with the allegation that she has got married with the appellant in the year 2010 and out of their wedlock one daughter has been born who is presently aged about 11 years and studying in class 7th. Due to the dispute with her husband she is residing separately from him along with her minor daughter and employed as nurse. Her daughter is residing in hostel. At the time of Dushera holidays she came to her house on 02-10-2022. On 08-10-2022 when she took out money from her purse without her permission, she scolded her and then she had gone to her father/appellant who was working at Boby lodge and residing there. Today, that is on 10-10-2022 she was called by Kotwali police and when she had gone there her daughter was crying and informed that her father has committed rape upon her in the night. On the written complaint made by mother of the victim (PW-2), FIR Ex.-P/5 was 3 registered against the appellant for the offence under Section 376 of the IPC and Section 4 of POCSO Act. The victim was sent for her medical examination to District Hospital, Bilaspur where she was medically examined by PW-10 Doctor Rama Ghosh who after her examination gave report Ex.-P/12A. While medically examining the victim the doctor has found following injuries on her body: (i) libia majora has redness and tenderness present, (ii) left side near libia minora small deep redness with tenderness present, hymen was intact, but tenderness present. She opined that the victim may be subjected to sexual intercourse. Two slides of her vaginal swab were prepared, sealed and handed over to the police for its chemical examination. Spot map Ex.-P/2 was prepared by the police and Ex.-P/8 was prepared by the Patwari. With respect to the date of birth of the victim, the birth certificate of the victim has been seized vide seizure memo Ex.-P/7. The underwear of the victim has also been seized from the spot, i.e., Boby lodge vide seizure memo Ex.- P/10. With respect to the date of birth and age of the victim the school register from National Primary School Bilaspur has been seized vide seizure memo Ex.-P/22 and after retaining its attested true copy Ex.-P/25C, the original school register was returned back to the school. The appellant was arrested on 10-10-2022 and he too was sent for his medical examination to District Hospital, Bilaspur where he was medically examined by PW-11 Doctor K. L. Oraon who after his medical examination gave report Ex.-P/14A and found the appellant to be 4 capable to perform sexual intercourse. The underwear of the appellant has also been seized vide seizure memo Ex.-P/11. The vaginal slides, plazo and underwear of the victim and the half pant of the appellant were sent for its chemical examination to regional FSL Bilaspur from where report Ex.-P/24 was received and as per the FSL report, semen and sperms were found on the vaginal slides, underwear of the victim as well as half pant of the appellant. Statement of the witnesses under Section 161 of the Cr.P.C. and statement of the victim under Section 164 of the Cr.P.C. have been recorded and after completion of usual investigation charge sheet was filed before the learned trial Court for the offence under Section 376 of the IPC and Section 4 of POCSO Act. The learned trial Court has framed the charge against the appellant for the offence under Section 376(2)(f) and 376AB of the IPC and Section 5(m) (n)/6 of POCSO Act. The appellant denied the charge and claimed trial. 3. In order to prove charges against the appellant, the prosecution has examined 11 witnesses. Statement of the appellant under Section 313 of the Cr.P.C. has also been recorded in which he denied the circumstances appearing against him, pleaded innocence and has submitted that the complainant is his wife with whom he is having family dispute. She has lodged various reports against him and a case has already been filed before the Family Court. She insisted him to get the partition from his family property and for that reason the dispute arose between them and he has been falsely implicated in the present case. 4. After appreciation of the oral as well as documentary evidence led 5 by the prosecution the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence, this appeal. 5. 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, which cannot be made basis to convict the appellant for the offence in question. There is no cogent and clinching evidence with respect to the age and date of birth of the victim that she was minor and less than 18 years of age. The documents collected with respect to the age of the victim has not been proved in accordance with law and merely on the basis of superficial evidence age of the victim cannot be determined that she was minor on the date of incident. He would further submit that the complainant who is mother of the victim is wife of the appellant with whom he is having family dispute and in order to settle her score, the victim has been made instrumental. Had the appellant having evil eyes upon his own daughter, she would not have come to her father when her mother scolded her. Her hymen was found intact which clearly shows that she was not subjected to forceful sexual intercourse and from the evidence of the doctor also the allegation of rape is not established by the prosecution, yet the appellant has been convicted for the said offence. In absence of any cogent and clinching evidence the appellant cannot be convicted and he is entitled for acquittal. 6. On the other hand, learned counsel for the State opposes the 6 submission made by learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions, the evidence of victim as well as other witnesses are fully corroborated each other and sufficient to hold conviction of the appellant in the offence in question. The report of the incident has been lodged without any delay and the victim was medically examined by the doctor who found injuries on her private part. In the FSL report also, semen and sperms were found present on the vaginal swab of the victim which unerringly supported the prosecution’s case that the victim was subjected to sexual intercourse by the appellant. Therefore, there are ample evidence against the appellant in the case and he has rightly been convicted and sentenced by the learned trial Court and his appeal is liable to be dismissed. 7. We have heard learned counsel for the parties and perused the record of the case. 8. The First and foremost question arose for consideration would be age of the victim as to whether the victim was minor on the date of incident or not. 9. The prosecution has relied upon the school register Ex.-P/25C which is sought to be proved by PW-8 who is the Head Master of the school. The police has also seized birth certificate (Article A) of the victim issued by the Municipal Corporation, Bilaspur. PW-8, the Head Master of the school has stated in his evidence that police has seized the school register with respect to date of birth of the victim vide seizure 7 memo Ex.-P/22 and after retaining attested true copy of the school register Ex.-P/25C, the original school register Ex.-P/25 was returned back to the school which he brought today with him. He is posted as Head Master of the school since 2012. In cross-examination he admitted that the entries made in the school register have been made by him and he has given her admission in the school. He did not state as to whether her parents have got recorded her date of birth by reducing her age or not. 10. In the matter of State of State of Madhya Pradesh Vs Preetam, (2018) 17 SCC 658 the Hon’ble Supreme Court has held that:- (10). ……...It is to be relevant to note that before the trial court the prosecution has examined Bhaulal (PW-8), Head master/Head teacher of Primary School Chor Pind Ke Par, District Balaghat. In his evidence, Bhaulal (PW-8) has stated that the date of birth of the prosecutrix (PW-1) was 16th May, 1981 which means that on the date of the occurrence i.e. 6th March, 1993, the prosecutrix (PW-1) was only aged about 12 years. The trial court has neither acted upon the evidence of Bhaulal (PW-8) nor on the school certificate on the ground that the person who has admitted the prosecutrix in the school was not examined. (11) In our considered view, the approach of the trial court was not correct. In each and every case the prosecution cannot be expected to examine the person who has admitted a student in the school. The school registers are the authentic documents being maintained in the official course, entitled to credence of much weight unless proved otherwise. In our view, considering the evidence of head master, Bhaulal (PW-8), and the school certificate produced by him i.e. Ex.P/13-A, age of the victim has to be taken as 12 years at the time of occurrence." 8 11. So far as the other part of the evidence with respect to the age of the victim is concerned, the prosecution has relied upon the birth certificate Article A of the victim. The said birth certificate is issued by the Municipal Corporation Bilaspur on 12-05-2011, in which the date of birth is shown as 15-01-2011. The said birth certificate Article A itself shows that after birth of the victim, her birth certificate has been prepared within 4 months, i.e., in the year 2011 itself and at that time the parties may not have any apprehension that any offence could have committed with her so that her age may be recorded by reducing the same. Even otherwise, the mother of the victim PW-2 has stated that she has got married with the appellant in the year 2010 and out of their wedlock the victim born in the year 2011 which is proved that the victim has born in the year 2011. There is no reason for them to get the victim’s age recorded after reducing it. The said birth certificate is a statutory document kept by public servant in discharge of his official duty and the said birth certificate is abstract of said official record which is admissible under Section 35 of the Indian Evidence Act, 1872 and in absence of any specific rebuttal or replacing by any concrete evidence that her date of birth is other than the date recorded in the said birth certificate, the same cannot be disbelieved. Here in the present case, the age of the victim and her date of birth is corroborates with the date of birth recorded in her school register Ex.-P/25C. Therefore, the prosecution is able to prove the age of the victim, that on the date of incident, i.e., on 10-10-2022 she was aged about 11 years and 9 9 months and was minor. We are also in agreement with the finding recorded by the learned trial Court that the victim was minor on the date of incident and was less than 12 years of age. 12. So far as offence of rape is concerned, we again examine the evidence available on record. 13. PW-1, the victim has stated in her evidence that her date of birth is 15-01-2011 and her date of incident she was aged about 11 years. She knew the appellant who is her father. At the time of Dushera holidays she came to her mother and since she took out the cash amount from purse of her mother, she scolded her and then due to anger state of her mind she went to her father at Boby lodge, old bus stand, Bilaspur, where her father was working. In the night, her father has committed rape upon her. In the next morning when her father had gone to his work she fled away from there and came to Kotwali police station. From Kotwali police station her mother was called there and she disclosed the incident to her mother and lodged the report to the police. In cross-examination she admitted that her mother and father are residing separately since last 5-6 years and the father is residing at Boby lodge and working there. She voluntarily stated that her mother had stopped her to stay with the appellant with him in the night. She admitted that her mother has lodged various report against her father. She further stated that her father had heavily beaten her mother and committed wrong with her. Therefore, her mother were lodging report against him. She was having affection with her father, therefore, she was in his favour, her father cannot do any wrong with her mother. She 10 admitted that she has not disclosed the incident to any person at Boby lodge. Even she has not disclosed the incident to auto driver in whose auto she had gone to Kotwali police station. She firmly denied that her father has not committed rape upon her. She also denied that under the influence of her mother she deposed against her father. 14. From the evidence of the victim PW-1, we find nothing in her cross-examination to discredit her evidence or to disbelieve the same rather it is found proved by her evidence that the appellant has committed rape upon her own daughter on the alleged date of incident. 15. PW-2, mother of the victim has stated in her evidence that at the time of Dushera festival her daughter came to her house in holidays. Since she has taken out the cash amount from her purse, she scolded her and then she went to her father at Boby lodge, old bus stand, Bilaspur on 08-10-2022. On 10-10-2022 she was called by City Kotwali police and when she went there, her daughter has informed that she has been subjected to rape by the appellant and she is feeling pain on her private part. Then the report has been lodged. In cross-examination she stated that she has not lodged any report at City Kotwali police station because she was informed there that the jurisdictional police station is Tarbahar and therefore, she has lodged her complaint at Tarbahar police station. She admitted that her marriage with the appellant was love marriage. She denied the suggestion given by the defence that due to her own conduct, dispute arose between her and her husband and she pressurized him to get the partition of his family property. She also denied the suggestion that since she is residing 11 separately from her husband, to settle her grievance she falsely implicated the appellant in the offence in question. 16. PW-6 is friend of the mother of the victim and she was well acquainted with the family affairs of the victim as well as the appellant. On the date of incident she accompanied the mother of the victim to police station City Kotwali, Bilaspur where the victim informed her about the incident. She also witnessed the dispute between the mother of the victim and her husband. 17. PW-10, Doctor Rama Ghosh who medically examined the victim has found injuries on her private part, redness and pain over there. Though her hymen was found intact, but she was complaining pain over there and there was sign of forceful act on the private part of the victim. She prepared two vaginal slides, sealed and handed over to police for its chemical examination. In cross-examination she admitted that the injuries on libia minora can be caused by rubbing any hard object. She also admitted that in case of sexual intercourse the hymen is normally torn. The defence could not abstract any clinching material from her evidence which makes her evidence doubtful that she has not found any injuries on the body of the victim or she has not medically examined her. 18. In the matter of Satyapal Vs. State of Haryana, (2009) 6 SCC 635 the Hon’ble Supreme Court has considered the definition of Section 375 of the IPC that even slightest form of penetration is sufficient to constitute offence of penetrative assault. It is not necessary that there has to be some injury on genitals or any other part of the victim’s body. 12 In para 18 of that judgment Hon’ble Supreme Court has held that: “18. In Modi's Medical Jurisprudence, 23rd Edn., at pp. 897 and 928, it is stated: "To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with the 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 the 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." 19. In the matter of State of Punjab Vs. Gurmit Singh, reported in (1996) 2 SCC 384, the Hon’ble Supreme Court has observed in para 21 of its judgment that:- “21. …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 he 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.” 20. In the matter of Prahlad and another Vs. State of Haryana, 2015 13 (8) SCC 688 the Hon’ble Supreme Court has observed in para 17and 18 that:- “17. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of IPC but also the right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitations. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Article 14 and right to life under Article 21 of the Constitution, for they are the “fons juris” of our Constitution. The said rights are constitutionally secured. 18. Therefore, regard being had to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. The perpetrators of the crime must realise that when they indulge in such an offence, they really create a concavity in the dignity and bodily integrity of an individual which is recognised, assured and affirmed by the very essence of Article 21 of the Constitution.” 21. In the present case also the victim innocently trusted her father 14 and in fact there was no reason to demonstrate any kind of doubt. The mental and physical condition of the victim who was aged about 11 years under the domination of her father, who had become slave of his prurient attitude can be well imagined. 22. Further, the allegation made by the victim that she was subjected to rape by the appellant has been further corroborated by the FSL report Ex.-P/24 that in her vaginal swab and underwear and also in the half pant of the appellant semen and sperms were found. Further, the underwear of the victim has been seized from the spot, i.e., Boby lodge where the appellant was residing and thus, there are clinching and cogent evidence against the appellant to hold him guilty for the offence in question. 23. There is no reason to disbelieve the testimony of the victim as this conclusion was arrived at after considering of all the evidences on record and evidence of witnesses. We find no reason to disbelieve the evidence of victim and further found that the judgment of conviction and sentence passed by the learned trial Court is well merited and after due appreciation of evidence available on record as well as the law applicable to it. Accordingly, the appeal fails and is hereby dismissed. 24. The appellant is stated to be in jail since 11-10-2022. He shall serve out the remaining part of the sentence as has been awarded to him by the learned trial Court. 25. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentences to serve the same on the appellant informing him that he 15 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. 26. Record of the trial Court be sent back along with copy of this judgment. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Aadil