1 2025:CGHC:10637 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1101 of 2021 1 - Panbudi @ Mukhiram Sahu S/o Jhaduram Sahu Aged About 65 Years Resident Of Thakurdeva, Chowki Malhar , Police Station Masturi , District Bilaspur Chhattisgarh. ...Appellant(s) versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station Masturi District Bilaspur Chhattisgarh ... Respondent(s) For Petitioner(s) : Shri Akash Shrivastava, Advocate For Respondent(s) : Shri Neeraj Sharma, GA (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 04/03/2025 This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred against the judgment of conviction and order of sentence dated 04.09.2021 passed by the Additional Sessions Judge (POCSO Act) No.09/2019. 2 2. By the impugned judgment the learned trial court had convicted and sentenced the appellant as under: Conviction Sentence Under Section 342 IPC RI for 1 year and to pay fine of Rs. 1,000/-, in default of payment of fine to further undergo SI for one month. Under Section 376(A) (B)/511 IPC RI for ten years and to pay fine of Rs. 4,000/-, in default of payment of fine to further undergo SI for 6 months Both the sentences are ordered to run concurrently. 3. Brief facts of the case are that on 11.11.2018, report was lodged by the father of the minor victim at police station Malhar alleging that on 11.10.2018 at about 1.00 pm. one Ajay Sahu informed that Chaiti Bai had informed him that the appellant had detained his daughter and one another girl in his house and had committed rape with them. When they went to ask the children palying there, they stated that the appellant took them to his house to gie money and thereafter attempted to commit rape on them and thereafter gave 5/- each and had asked them not to disclose it to anyone. On the basis of the said information, Crime No.0/2018 was registered against the appellant under Sections 376,511 and 342 IPC and Section 8 of the POCSO Act, 2012. The investigation was set on motion and after due investigation, the charge sheet was filed before the competent court. 4. The appellant was charged as stated above who denied the charges and claimed to be tried. Prosecution in order to establish the case, examined as many as 17 witnesses. Statement of the accused under Section 313 Cr.P.C. was recorded in which he pleaded his innocence and false implication in the case. 5. Learned trial court after appreciating the evidence and material on record, found the appellant guilty of the aforesaid offences and convicted him 3 as stated about by the impugned judgment. 6. Shri Shrivastava learned counsel for the appellant made the following submissions on behalf of the appellant: i) The entire case of the prosecution rests on the statement of child victims (PW-2) The Trial Court did not appreciate the fact that the they are child witnesses and their statements should have been thoroughly scrutinized and corroborated. ii) It is submitted that the finding recorded by the learned trial court is perverse to the records as the learned trial court has not appreciated the evidence brought before it in its proper perspective. iii) The statement of the witnesses are full of omissions and contradictions and they do not inspire confidence of the Court hence, conviction on such evidence cannot sustain. iv) the findings recorded by the trial court is baseless, perverse, erroneous and contrary to the evidence available on record and therefore they are liable to be quashed. v) the learned trial court had committed a gross error of law in appreciating that the victim was examined by Dr. Parul Jogi (PW-10) who has given the report wherein she has opined that there was no external or internal injury found on the body of the victim and in such circumstances, it is evident that the appellant has not committed any offence as alleged against him. vi) he submits that due to previous enmity, the parents of the victim have falsely implicated him. The present case at best will amount to an attempt to rape, rather than the appellant having committed rape. 7. Per contra, the learned counsel appearing on behalf of the State had made the following observations:- 4 i). The child victims in all her statement, has supported the case of the prosecution and there is no inconsistencies in her statement and stated that the accused had done bad work with the victims and when they resisted and cried to open the door he did not open the door. ii) He therefore submits that the findings recorded by the trial Court being based on due appreciation of the evidence of the witnesses, ocular and medical, require no interference in this appeal. 8. I have heard the counsels for the parties and perused the material on record. 9. The child victim (PW-2), in her testimony before the Trial Court, has clearly stated that she was 8 years old and on the date of incident, when she was playing along with her friends, he called her and her cousin sister to the house of the appellant and said that he will give Rs.5/- and thereafer closed the door. Then he unclothed them and done bad work. They began crying and asked him to let them go but he did not open the door and thereafter, gave Rs. 5/- to each and asked them not to disclose it to anyone. (PW-1) mother of the victim has stated that on the date of incident, the victim was 7 years old and on that day, the victim, his cousin sister and other children were playing under the Peepal tree. At that time, the appellant took her daughter and her niece to his house and after unclothing them, committed rape. The victims screamed and asked him to open the door but he did not open and after sometime, he opened the door and gave Rs. 5/- each. He had also asked them not to disclose about the act to any one. (PW- 3) is the uncle of the victim. He has stated that on the date of incident, when he saw the appellant taking the children inside his house and after about half an hour, when they did not come out, he asked them and they informed about 5 the act of the appellant. On hearing about the same, he informed the elderly people of the village and thereafter, report was lodged at police station Malhar. Chaiti (PW-4) is a villager who had seen the victims being taken by the appellant inside his house. After sometime when they came out, she asked the victims as to what was they keeping in their hands and they showed her Rs.5/- given by the appellant and they did not disclose about the incident to her. Then she informed about the incident to the uncle of the victim who in turn informed father of the victim. (PW-5) father of the victim has stated that on receiving information from Vijay Sahu, he immediately went to the police station Malhar and lodged the report against the appellant. The testimony of the child victim has been consistent with her statement. The child victim has withstood the cross-examination conducted on behalf of the appellant and has throughout been consistent about the appellant having committed penetrative sexual assault on her and her cousin sister. In her cross-examination, she has stated that some quarrel had taken place between her mother and the mother of the appellant. Further, the mother of the victim in her testimony did not mention about any previous dispute with the appellant. 10. The Supreme Court in Phool Singh Vs. State of Madhya Pradesh, (2022) 2 SCC 74, has held that the conviction can be on the basis of the sole testimony of the prosecutrix when the deposition is found to be trustworthy and credible and no independent corroboration is required for the same. In my considered view, the statement of the child victim is reliable and trustworthy and has also withstood cross-examination on this aspect. 11. The aforesaid testimony of the child victim has been corroborated by the mother of the child victim (PW-1). She has denied the allegations levelled 6 against the appellant. The statement of the mother becomes relevant and admissible as res gestae evidence under Section 6 of the Indian Evidence Act, 1872 (Evidence Act) since immediately after hearing about the incident, he informed the elderly people of the village and thereafter lodged a report at police station Malhar. 12. The submission of the appellant that as per the MLC conducted by Dr. Parul Jogi (PW-10), there were no external injuries on the private parts of the child victim and the hymen was intact does not hold merit. Just because the hymen of the child victim is found to be intact, it does not mean that the victim was not subjected to penetrative sexual assault. 13. The learned State counsel had correctly relied on the judgments of the Supreme Court in Radhakrishna Nagesh (supra), and the judgment of this Court in Sher Alam (supra). 14. The Supreme Court in its judgment in Radhakrishna Nagesh (supra) has held as under:- "25. The mere fact that the hymen was intact and there was no actual wound on her private parts is not conclusive of the fact that she was not subjected to rape. According to PW9, there was a definite indication of attempt to rape the girl. Also, later semen of human origin was traceable in the private parts of the girl, as indicated by the FSL Report. This would sufficiently indicate that she was subjected to rape. Penetration itself proves the offence of rape, but the contrary is not true i.e. even if there is no penetration, it does not necessarily mean that there is no rape. The explanation to Section 375 IPC has been worded by the legislature so as to presume that is there was penetration, it would be sufficient to constitute sexual intercourse necessary for the offence of rape. Penetration may not always result in tearing of the hymen 7 and the same will always depend upon the facts and circumstances of a given case. The Court must examine the evidence of the prosecution in its entirety and then see its cumulative effect to determine whether the offence of rape has been committed or it is a case of criminal sexual assault or criminal assault outraging the modesty of a girl." 15. The aforesaid judgment in Radhakrishna Nagesh (supra) was followed by a Coordinate Bench of this Court in Sher Alam (supra) which held as under:- "8. 'X' was medically examined promptly at GTB hospital vide MLC Ex.PW-5/A where she informed the examining doctor about sexual assault committed by her neighbour. It is true that as per MLC (Ex.PW-5/A), hymen was found 'intact' and there was no tear and abrasion. Merely because the hymen of the prosecutrix was found 'intact' and there was no actual wound on her private parts, it is not conclusive of the fact that she was not subjected to rape. The Trial Court has dealt with this aspect elaborately citing judgments to conclude that the absence of injuries or mark of violence on the person of the prosecutrix does not lead to any inference that she consented for sexual intercourse with the accused. In Madan Gopal Kakkad vs. Naval Dubey and Another (1192) 3 SCC 204, a minor girl aged about eight years was raped. 16. It was held that even slight penetration of the penis into the vagina without rupture would constitute rape. In the matter of Radhakrishna Nagesh Vs. State of Andhra Pradesh 2012 (12) SCALE 506, the Supreme Court held that being so it is quite possible to commit legally the offence of 8 rape even without causing any injury to the genitals or leaving any seminal stains. MLC (Ex.P-10) does not state in so many words that it was not a case of sexual assault. However, in the MLC report the doctor (Dr. Parul Jogi PW- 10) has stated that there was no external injury on or over genitalia and hymen was found intact. She has however opined that no definite opinion can be given about forceful sexual act. She has further opined that the underwear of the minor in which semen stains were present has been sent for FSL examination. 17. The POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8 and 10 of the POCSO Act for various categories of sexual assaults on children. The impact of the obnoxious act on the mind of the victim child will be lifelong. The impact is bound to adversely affect the healthy growth of the victim. There is no dispute that the age of the victim was less than twelve years at the time of the incident. 18. In Ganesan v. State (2020) 10 SCC 573, the Supreme Court held that the sole testimony of the victim, if found reliable and trustworthy, requires no corroboration and may be sufficient to invite conviction of the accused. In the aforesaid case, the Supreme Court had an occasion to consider the series of judgments on conviction on the sole evidence of the prosecutrix. In paragraphs 10.1 to 10.3, it was observed and held as under: 10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v.State of M.P., (2010) 8 SCC 191], it is observed in paras 9 to 14 as under: (SCC pp. 195-98) “9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of 9 Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but isa victim of another person's lust and, therefore, herevidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) ‘16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no 10 hesitation in accepting her evidence.’ Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12) ‘12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.’ 11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384], this Court held that in cases involving sexual harassment, molestation, etc. the court is duty- bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out and otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual 11 offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) ‘8. … The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. … The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. … Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. … 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 given circumstances.… *** 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 12 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.’ 12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86], this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. 13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622], this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, AIR 1952 SC 54]. 14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the 13 prosecutrix. 19. What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution’s case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded. 20. Thus, having considered all the facts and circumstances of the case as stated earlier, the sexual assault by the appellant with the victim child could not be doubted. The medical evidence produced in this regard has corroborated the evidence of child victim. The fact that the appellant has sexually assaulted is also fortified from the testimony of the victim which has been recorded and she has specifically described about the appellant as the person who had committed rape on her. There is absolutely no dent in the case of the prosecution and the same stood proved beyond reasonable doubt. 21. Thus I do not find any good ground on the basis of which the judgment and order passed by the trial court may be interfered. The quantum of 10 years imprisonment under Sections 376(A)(B)/511 IPC also appears to be perfectly justified in the background of the brutality and inhumanness with which the rape has been committed by the appellant with the victim of the age of 7 years. The evidence of the victim of the crime is to be kept at a 14 higher pedestal and if the same is reliable and trustworthy the same may be accepted without any fear and conviction may be based on it without any corroboration while in the instant case the victim child has narrated and proved that the appellant has committed rape with her as also on the other victim girl who is her cousin sister. 22. Although a victim of sexual assault, particularly when she is a minor, cannot be discarded because such minor child has no such hostility of her own towards an accused for false implication though the mother and father of the victim have turned hostile as he is a maternal brother of the victim and therefore they did not support the prosecution case but the statement of the victim is credible and trustworthy which requires to be relied upon. The victim in her cross-examination has stated that the victim was never tutored by her mother to give false evidence." 23. Recapitulating the aforesaid testimonies of the witnesses examined on behalf of the prosecution and other evidences available on record, it is well founded that the learned Trial Court has rightly come to the conclusion that a minor aged about 7 years of age at the time of incident, who is incapable of thinking rationally has been sexually assaulted by the appellant. 24. Once we put the things in right perspective in the manner stated above, we have to treat it as a case where the appellant has committed rape on a minor girl which is regarded as a heinous crime. Such an act of sexual assault has to be abhorred. In the case of Nawabuddin V. State of Uttarakhand reported in (2022)5 SCC 419, the Hon'ble Supreme Court has observed and held which are reproduced herein below: “18. Children are precious human resources of our country; they are the country's future. The hope of tomorrow rests on them. But 15 unfortunately, in our country, a girl child is in a very vulnerable position. There are different modes of her exploitation, including sexual assault and/or sexual abuse. In our view, exploitation of children in such a manner is a crime against humanity and the society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas. “ 25. The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of the crime. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation on the part of the prosecutrix. It will all depend on the facts and circumstances of each case. 26. Thus, if the aforesaid factual matrix is seen carefully in the light of the evidence adduced by the prosecution, in particular that of the victim, this Court is of the considered opinion that by removing the girl child from lawful guardianship, taking her to his house, bolting the door from inside, and after removing her underwear making physical contact with her and touching her vagina with sexual intent, the complicity of the accused in the crime in question is fully established. Prosecutrix had been fully consistent in giving narration of the incident everywhere i.e. in the statement recorded under Section 161 CrPC by the police, under Section 164 Cr.P.C made before the Magistrate as also in the evidence recorded during trial. This Court is not in agreement with the submission of the counsel for the appellant that on account of family dispute, the appellant has been roped in a false case by the 16 family members of the victim. It is for the reason that no parent would implicate anyone on account of a trivial family dispute by putting at stake the entire future of their own girl child by making such ignominous character- related imputations which are bound to bring a life-long disgrace and disrepute to her in the society. In view of the above discussion, the conviction of the accused/appellant as described above does not suffer from any illegality or infirmity and is maintained as such. So also the sentences imposed does not appear to be disproportionate and is the minimum prescribed in the relevant provisions of law. 27. The judgment impugned is therefore upheld and the appeal stands dismissed. 28. As the appellant is already in jail, no order in this regard is necessary to be passed. 29. Let a copy of this order be sent to the trial Court for necessary compliance. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.24 11:50:10 +0530