1 Judgment reserved on 06.05.2025 Judgment pronounced on 01.08.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1481 of 2019 Manku Oyami S/o Late Pandu Oyami, aged about 50 Years R/o Village Ghotpal Jodatarai, Police Station - Geedam, District - Dantewada Chhattisgarh., District : Dantewada, Chhattisgarh ... Appellant versus State Of Chhattisgarh through Station House Officer, Police Station Dantewada, District - Dantewada Chhattisgarh ... Respondent For appellant : Shri Pritam Tiwari, Advocate For Respondent : Ms. M. Asha, Panel Lawyer DB : Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Sachin Singh Rajput C A V Judgment Per Sachin Singh Rajput, J. The appellant by this appeal has called in question the judgment dated 06.09.2019 passed by Additional Sessions Judge (FTC) Dantewada, CG in Special Sessions Trial No. 19/2018 convicting him under Sections 363, 376 (AB) of Indian Penal Code, 1860 (for short “IPC”) and section 5 and 6 of Protection of Children from Sexual Offences Act, 2012 (for short the “POCSO 2 Act”) and sentencing him to undergo RI for two years with fine of Rs. 100/- u/s 363 and RI for 20 years with fine of Rs. 100/- under Section 376 (A,B) IPC, plus default stipulations. Since the sentence prescribed for the offence under Section 376 (AB) IPC is greater in degree, no sentence has been imposed by the trial Court under the POCSO Act. 2. FIR (Ex.P-6) lodged on 17.05.2018 by PW-4 – the brother of the victim says that on 16.05.2018 in the afternoon when he was sleeping in his house, the victim was playing outside the house with his nephew. However, when he woke up at about 4:30 PM, the victim was not at home. On being asked, his nephew told him that one old man (the appellant) had taken her with him. On an enquiry being made, one Reshma Nag (PW-6) also told him that an old man had taken the victim pond side. Though search was made in the night, the victim remained untraceable. FIR further says that on the next day at about 6:00 AM one Bidir Netam (PW-7) took the victim home who was seen by him weeping near a water tank. The victim is stated to have disclosed that an old man on the pretext of giving her mango had taken her to the forest and kept her there for the whole night, and in the night when she asked him to let her go home, he abused and beat her. The appellant is also alleged to have made her sleep with him and done bad work by touching her. The appellant was brought to the locality from forest and was identified by the victim as also by Reshma Nag (PW-6), who also disclosed his name and address. With the consent of her brother (PW-4), the victim was medically examined, seizure of school admission register, clothes of the victim, her vaginal slides etc. was made and thus after completion of investigation charge sheet was filed followed by framing of charge for the same offence as contained in the FIR. Appellant however denied the charge and claimed trial. 3 3. Prosecution examined 13 witnesses to prove its case. 313 CrPC statement was also recorded where the accused/appellant pleaded his innocence and false implication in the case. 4. Conclusion of trial led to imposition of conviction and sentence of the accused/appellant as detailed above. Hence this appeal. 5. Learned counsel for the appellant submits as under:- (i) that the judgment of conviction and order of sentence being not based on just and proper appreciation of the evidence is bad in law; (ii) that the statement of PW-1 – the sister-in-law (Bhabhi) of the victim is highly exaggerated and cannot be relied upon; (iii) that the prosecution has failed to prove the exact age of the victim; (iv) that the medical evidence also does not support the case of the prosecution; and (v) that there are material contradictions and omissions in the statements of the witnesses examined by the prosecution. (vi) In support of his submissions, reliance is placed on the decision of Bombay High Court in the matter of Sharad S/o Mahadev Mankar v. State of Mah. Thr. Pso Ps Nandabaon, Peth dated 30.08.2024 rendered in CRA No. 457/2022, decision of High Court of Himachal Pradesh in the matter of Sunder Lal v. State of Himachal Pradesh dated 01.07.2024 rendered in CRA No. 477/2022, and the decision of Allahabad High Court in the matter of Monu v. State of UP dated 31.01.2025 rendered in CRA No. 5774/2021. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that while recording the finding of conviction, the trial Court has dealt with the evidence of the witnesses in detail, and therefore, no interference is called for with the same in this appeal. 4 7. The victim (PW-2) was put certain preliminary questions to test her capacity to understand the same and give rational answers, and after being satisfied, the trial Judge proceeded to record her statement. The victim while giving evidence has used two vernacular words – Dokra for the appellant which signifies old man and Lota which signifies rape. On being shown the photograph of the appellant affixed on arrest memo, the victim is stated to have identified it to be of the appellant who had committed rape on her. She has stated that on the date of incident she was playing in the courtyard with her nephew Prince. Her sister-in-law (Bhabhi) at that time was at home whereas her brother was watching TV. Appellant whom she had never seen prior thereto, came and asked her as to where he could have liquor. While she was leading him to the house where liquor was available, on the way he enquired from her whether she liked mango. Thereafter, he took her towards jungle on the pretext of having her mango and when in the evening she asked him to let her go home, he intimidated her saying that he would rape her for the whole night. He is stated to have committed rape on her twice. While being raped, she had immense pain and bleeding. Next morning finding the appellant asleep, she wriggled out of his grip. On the way, some Dada (Bidir Netam – PW-7)) met her and took her home. After reaching home, she informed her sister-in-law (Bhabhi) about the entire incident. In cross examination she stood firm to what she stated in the examination-in- chief. 8. Dr. Uttra Kanwar (PW-3) is the witness who medically examined the victim and gave her report (Ex.P-3). She noticed contusion on the left hip, redness in labia majora, but the hymen was intact. This witness has opined the sexual assault having taken place on the victim. She has further stated that panty of the victim was produced before her, in the back side of which 5 brown colour spot was there. She has denied that the redness on labia majora of the victim could be caused on account of fall. As regards commission of sexual intercourse on the victim, this witness has confirmed the sexual assault but not the penetration. She has stated that had penetration been there, the victim must have suffered severe injuries. She however has stated that it was attempted. 9. PW-1 – the sister-in-law of the victim has stated that on the date of incident when she asked her son Prince with whom the victim was playing of her whereabouts, he informed her that she had accompanied some old man. Reshma Nag (PW-6) had also informed this witness about the victim being taken away river side by an old man. This witness then informed her husband about the victim going missing, and after he came home, the search operation was launched but she could not be traced in the night. According to this witness, on the next morning at about 7:00 AM, one Bidir Netam (PW-7) whom the victim met on the way weeping, brought her home. Victim then narrated her entire agony as to how the appellant had removed her clothes and committed rape on her for the whole night. PW-4 is the brother of the victim who has stated that on the date of incident when he was sleeping in his house, the victim was playing outside the house with his nephew Prince John. However, when he woke up at about 4:30 PM, the victim was not at home. On being asked, his nephew told him that one old man (the appellant) had taken her with him. He has stated that one Reshma Nag (PW-6) had told him that an old man had taken the victim with him. Though search was made in the night, the victim could not be found. According to him, on the next day at about 6:00 AM one Bidir Netam (PW-7) brought the victim home who was seen by him weeping near a water tank. This witness has further stated that on being asked by PW-1, the victim is stated to have disclosed her that an old 6 man on the pretext of giving her mango had taken her to the forest, kept her there for the whole night, and in the night when she asked him to let her go home, he abused and beat her. The appellant is also alleged to have made her sleep with him and done bad work by touching her body. The appellant was brought to the locality from forest and was identified by the victim as also by Reshma Nag (PW-6). In the cross examination also this witness has stated the same thing as in the examination-in-chief and thus remained consistent. 10. Siyaram Nag (PW-5) has stated that on the date of incident at about 5:00 PM (PW-1), (PW-4) and (PW-13) had come to his house in the search of the victim. This witness is then stated to have been informed by his son Ganesh as to the manner in which she was brought home by PW-7 and the appellant was identified by her. Smt. Reshma Nag (PW-6) is the witness who had seen the victim accompanying the appellant. She has further stated that the victim had informed her sister-in-law (Bhabhi) about being subjected to rape by the appellant. This witness is stated to have identified the appellant to be the same person whom the victim had accompanied. 11. Bidir Netam (PW-7) is the witness whom the victim had met weeping and then was brought home by him, has supported the case of the prosecution. According to him, the victim had disclosed to him as to how the appellant had taken her to the jungle in the name of giving her mango, and did bad work with her for the whole night. Ganesh Ram Nag (PW-9) is the witness to whose house PW-1 had gone in search of the victim, and on the next day he came to know that the appellant had taken her to the jungle and committed bad work with her. PW-13 has also stated almost the same thing like PW-1, PW-4, PW-6, PW-7 and PW-9. He too has stated that after the appellant was brought from jungle, the victim and PW-6 had identified him to 7 be the culprit in the case. Smt. Sunita Sahu (PW-10) is the investigating officer who has supported the case of the prosecution. Ram Charan Yadav (PW-11) is the witness who had produced the school register where the victim was studying, in which her date of birth is entered as 23.12.2010. The victim had taken admission in the school on 18.04.2017. 12. Facts sketched and the evidence surveyed now require this Court to draw the conclusion as to the fate of this appeal. The victim (PW-2) – a girl aged about 08 years on the date of incident, after being assessed to be capable of giving evidence by testing on the anvil of preliminary questioning, she has categorically stated that when she was playing outside her house along with her nephew Prince, the appellant came, asked as to where he could get liquor, on being led by the victim to the liquor spot, the accused/appellant took her away to the jungle on the pretext of giving her mango, and thus removed her from the lawful guardianship. Accordingly, the trial Court appears to be fully justified in holding the appellant guilty under Section 363 IPC. This victim has also been consistent in narrating the ghastly experience she had had after being taken by the appellant to the jungle and assaulted sexually for the whole night. She has recounted the incident she came across of being subjected to rape by the appellant. The medical evidence also opines that the victim was subjected to sexual assault though penetration did not take place. The medical evidence further clarifies that had there been penetration, the victim would have suffered severe injuries. But, certainly the penetration was attempted, is the opinion of the doctor who medically examined the victim. She also noticed contusion on the left hip, redness in labia majora. Since according to the doctor the penetration was attempted with the victim and the injury was also found on her private part, the finding of the trial Court holding the appellant guilty under Section 8 376 (AB) IPC does not appear to suffer from any illegality or infirmity, particularly looking to the fact that the victim has categorically described the manner in which she was taken and subjected to sexual intercourse, and also considering the settled legal position that to constitute an offence of rape even the slightest penetration is sufficient. After returning home also she identified the appellant to be the same person who had taken her with him and sexually assaulted her. Not only this, Reshma Nag (PW-6) has also identified the appellant to be the person who was seen by her taking the victim away. It is a settled legal position that the conviction can rest on the sole testimony of the victim and normally the corroboration need not be looked for if her version is worthy of credence, in the case in hand statement of the victim, has been fully corroborated by almost all the independent witnesses, including the doctor who medically examined her. In this view of the matter, the conviction of the appellant under Section 376 (AB) IPC and the resultant sentence as described above also appears to be based on just and proper appreciation of the evidence on record and requires no interference in this appeal. The decisions sought to be taken support of by the counsel for the appellant being distinguishable on facts are not of much help to the appellant. 13. Accordingly, the appeal being without substance is liable to be and is hereby dismissed, and the judgment impugned is hereby affirmed. Since the appellant is already in jail, no further consequential order is necessary to be passed. 14. Let a copy of this judgment along with the record be sent back to the trial Court for due compliance. 15. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing the sentence so as 9 to serve the same on the appellant informing him that he is at liberty to assail the same by preferring an appeal before Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Jyotishi AVANISH JYOTISHI Digitally signed by AVANISH JYOTISHI Date: 2025.08.02 10:36:41 +0530