1 Order Reserved on 26.03.2025 Pronouncement on 27.06.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1655 of 2019 Horil Singh S/o Ahibaran Singh Aged About 38 Years R/o Police Chowki - Dafai, Koriya Colliery, Police Station - Chirmiri, District - Koriya Chhattisgarh., District : Koriya (Baikunthpur), Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station - Chirmiri, District - Koriya Chhattisgarh., District : Koriya (Baikunthpur), Chhattisgarh ... Respondent For Appellant : Mr. J. K. Saxena, Advocate For State : Ms. Nandkumari Kashyap, PL {Hon’ble (Smt.) Justice Rajani Dubey & Hon’ble Shri Justice Sachin Singh Rajput} CAV Judgment Per Justice Sachin Singh Rajput, What is under assail in this appeal is the judgment dated 19.09.2019 passed by learned Special Judge (under POCSO Act), Baikunthpur, District – Koriya, CG Special Criminal Case (POCSO) No. 03/2019 by which the accused/appellant has been held guilty under Section 376(3) IPC and sentenced to undergo life imprisonment and pay fine of Rs. 1,00,000/-, plus default stipulation. 2 2. Facts of the case in brief are that on 20.12.2018 prosecutrix reported to the police that on 05.12.2018 at about 9.00 pm, she after taking dinner with her father (the accused) and sister went to bed. She slept with her sister on one bed and the accused/appellant on the other bed in the same room. At about 11.30 pm when she and her sister were in deep sleep, the accused/appellant committed forcible sexual intercourse with her by removing her garment and undergarment. Upon being objected to by the prosecutrix, he scolded her and continued performing such act. He also threatened her not to disclose the incident to anyone. After about five days she disclosed the incident to one Jyoti (PW-3), who in turn disclosed the same to her aunt (Bua) Savitri Singh. After medical examination of the prosecutrix with the consent of her mother and after completing further investigation related formalities charge-sheet was filed under Section 376 IPC and section 4 and 6 of the POCSO Act followed by framing of charge u/s 376(2) (jha) IPC. Later on it was amended as under section 376(3) and Section 6 of the POCSO Act. Thereafter, it was again amended to be Section 376 (2)(च) IPC. Accused/appellant however denied the charge and claimed trial. 3. Prosecution examined as many as 08 witnesses in order to prove its case. Statement of the accused/appellant under Section 313 CrPC was also recorded in which he pleaded his innocence and false implication in the case. 4. Learned trial Court after hearing the parties and going through the evidence adduced before it convicted and sentenced the accused/appellant as described above. Hence this appeal. 5. Learned counsel for the accused/appellant submits that the judgment of the trial Court convicting the present appellant as mentioned above is perverse and not sustainable in law. He further submits that even the medical evidence does not supports the prosecution as no injury has been found on her body. He submits that the material witnesses have not supported the case of the prosecution and have turned hostile. He submits that there is considerable unexplained delay in lodging 3 the FIR and the incident is of 05.12.2018 whereas the report was lodged on 20.12.2018. He submits that considering the overall facts and circumstances of the case and the evidence of the witnesses, the conviction of the appellant as described above is liable to be set aside by allowing the appeal. Alternatively, he submits that life sentence awarded to the appellant is too harsh and the said offence. For this purpose, he placed reliance upon the judgment of the Supreme Court in the case of Madan V. State of Uttar Pradesh, (2023) 15 SCC 701 and that of the division Bench of this Court in the matter of Khemchand Rohra v. State of CG in CRA No. 492 of 2024 rendered on 28.11.2024. 6. On the other hand, learned State counsel strenuously opposed the arguments advanced by counsel for the appellant and submitted that looking to the evidence of the minor prosecutrix who has been molested by the accused-appellant who happens to be her own father, the findings recorded by the Court below convicting and sentencing the accused/appellant as mentioned above are based on due appreciation of the evidence of the prosecution witnesses including the minor victim and her mother and therefore call for no interference by this Court in this appeal. 7. Heard counsel for the parties and perused the material available on record with great care and caution. 8. Victim (PW-1) aged about 14 years has categorically stated that she was studying class IX and she was born in the year 2005 but she was not aware of her month and date of birth. She has stated that on the night of the incident when she was sleeping with her sister and father (accused) she felt as if someone had in- serted something in her private part,and that when she opened her eyes, she found that it was her father (the accused/appellant). She has further stated that when she asked the accused/appellant as to what he was doing, he asked her to sleep. On the next day, when she informed about the incident to her aunt (Bua), she asked her not to sleep in her house, rather asked her to sleep with her. She has stated that as 4 her aunt (Bua) did not lodge the report though assured of doing so, 3-4 days there- after she at the instance of one Jyoti she informed her aunt (Mousi) namely Annu and then on being asked by her she lodged the report (Ex. P-1) Her statement un- der Section 164 CrPC (Ex.P-2) was also recorded. Her undergarments were seized on being given by her under Ex. P-6. According to her, on coming to know about the report being lodged, her father (accused) fled away. She was declared hostile and was cross examined by the prosecution where she admits that at the time of inci- dent she was wearing laggings and panty and after removing the same, her father committed the bad work (Galat Kaam). On being asked, by the learned trial Court, as to what the term “Galat Kaam” did mean, she clarified that her father had in- serted his private part into that of her, which caused great pain coupled with bleed- ing. She has reiterated that when she objected to the act of the accused/appellant, he scolded her and asked her to sleep, and that even thereafter he kept on doing that. On her consent, she was subjected to medical examination at CHC Chirmiri by a lady doctor. On being demanded, she also handed over her class VIII mark sheet to the police. She has stated that her mother did not live with her as after performing second marriage with some other man, she was living with him. She has stated that her father used to sleep with her though there are separate arrangements for all to sleep. She has admitted that even after second marriage, they used to visit each other. She has admitted that before lodgment of the report, she did not inform her mother about the incident. She is stated to have disclosed to the police that her fa- ther (accused) used to sleep on a separate bed. She has then stated that on the date of incident her father was sleeping with her. She has further stated that after she took shelter in the house of her aunt (Bua) her uncle (Foofa) also did bad work with her and against him also she registered a case a of rape. She has stated that her aunt (Bua) was informed about the incident 4-5 days after the incident. She has stated that her mother, aunt (Mousi) and maternal grandfather had accompanied her to police station at the time of lodging the report. 5 9. Annu Khalko (PW-2) has stated that year of birth of the victim is 2005 and that the victim at the relevant time was aged about 13 years. She has stated that the victim had told her of being subjected to forcible sexual intercourse by the accused/appellant and also by her uncle (Foofa). She has also stated that the mark- sheet of the victim of class VIII was seized by the police in her presence. 10. Dr. Ayushree Rai (PW-4) is the witness who medically examined the victim and gave her report (Ex. P-12). According to this witness, there was no external in- jury on the body of the victim; that she was of normal built; her mental health was good; that her menstrual cycle had started three month prior the date of her exami- nation; her breasts were not fully developed; pain was complained in her perineum; recent rupture of her hymen in 5 O’clock position was there and that she was not habitual to sexual intercourse. Two vaginal slides were prepared and sent for chemi- cal examination. In cross-examination, she has stated that 15-16 days after the inci- dent, the victim had come to her for medical examination. On being asked by the Court as to what the term “recent” according to her did mean, she replied by stating that it meant within a month. As regards swelling in perineum of the victim, this wit- ness has stated that sexual intercourse with her may have been around a week prior to her examination. She has denied that the rupture of hymen as opined by her,could be caused by other reason such as cycling or playing. She has reiterated that rupture of hymen in 5 O’clock position can be on account of forcible sexual in- tercourse. 11. Kamleshwar Paikra (PW-5) is the investigating officer has duly supported the case of the prosecution. Smt. Nirmala Toppo (PW-6) has stated that on being given by her, the police had seized the admission register in respect of the victim under Ex. P-10, according to which date of birth of the victim is 05.06.2005. This witness however has stated that at the time of admission of the victim, no document regard- ing her date of birth was produced. Smt. Rukmani Banjare (PW-7) is the witness who assisted in the investigation and she too has supported the case of the prose- 6 cution. Dr. J.K. Yadav (PW-8) is the witness who has medically examined the ac- cused/appellant and gave his report Ex. P-23 stating that he was capable of per- forming sexual intercourse. 12. The overall narration of the background of facts in the light of the evidence of the witnesses particularly that of the victim (PW-1) and that of the doctor who medi- cally examined her (PW-4), it is manifest that on the date of incident when the victim was asleep, the accused/appellant who happens to be her father has committed forcible sexual intercourse with her. Of course, about 15 days delay in setting the criminal law in motion which starts from lodgment of the report is there yet keeping in mind numerous judicial pronouncements of the Supreme Court to the effect that if the victim remains consistent and trustworthy in giving the narration of the incident, delay in such cases involving innumerable reasons including social stigma going along the minor victim all throughout her long span of life, which are pondered over before taking the matter to the police station, cannot be said to be fatal to the case of the prosecution. Being so, the argument on delay aspect of the matter advanced by the counsel for the appellant does not seem to be of any help to the defence and is therefore turned down. Furthermore, if the statement made by victim at all places right from the one contained in the FIR, another recorded under Section 164 CrPC before the Magistrate, then in the examination in chief and then in the cross-exami- nation is seen minutely, barring certain minor contradictions, she stood firm every- where on material particulars, and there appears to be no need for any other corrob- orative piece of evidence. Dealing with the like issue in the matter of State of Himachal Pradesh v. Asha Ram reported in AIR 2006 SC 381, the Supreme Court highlighted the importance to be given to the testimony of the prosecutrix in the following terms:- “5. …It is now well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured 7 witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.” (emphasis added).” 13. In that case also like the present one, the father was alleged to have committed the offence of rape on one of his daughters who was staying with him while his wife was living separately due to estranged relationship. While dealing with the said case, where the prosecutrix all throughout maintained her allegation against her father to be the person who committed forcible sexual intercourse with her and thus robbed her chastity. Version of the minor victim, in the facts and circumstances of the case, merits acceptance, inasmuch as, the evidence of rape victim is more reliable than even that of an injured witness. The minor contradictions and discrepancies in her testimony are insignificant and immaterial and are liable to be ignored. 14. Having thus seen the evidence on record and applying the aforesaid principles to the facts of the present case, this Court finds that the version of the victim which has been fully corroborated by the medical evidence as well is completely trustworthy inspiring the confidence of the Court. The prosecution has succeeded in establishing its case beyond all reasonable doubt and so also the Trial Court has undertaken a legally desirable approach in appreciating the same. Thus, no fault can be found in the view taken by the trial Court holding the accused/appellant guilty as detailed above. 8 15. As regards the sentence, looking to the facts and circumstances of the case and the judgment of the co-ordinate Bench of this Court in the matter of Khemchand Rohra v. State of CG (supra) and also being thoughtful of the fact that the sentence imposed by the trial Court appears to be too harsh, this Court feels it just and proper and also in the interest of justice if the sentence of life imprisonment imposed on the accused-appellant is reduced to the term sentence of RI for 20 years. Order accordingly. 16. The appeal thus is allowed in part by maintaining the conviction but reducing the sentence to RI for 20 years from that of life imprisonment. The sentence of fine is however left undisturbed. 17. Records be sent back along with the copy of this judgment. Appellant be informed accordingly. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Jyotishi