2025:CGHC:10153 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 803 of 2019 Dhaniram @ Sunny S/o Santuram Dhruw, Aged About 18 Years, and 3 Months, R/o Village - Sirri, Chowki, Birejhar, Police Station Kurud, District Dhamtari Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Chowki - Birejhar, Police Station Kurud, District Dhamtari Chhattisgarh ... Respondent (Cause title is taken from the CIS) ------------------------------------------------------------------------------------------------------------------ For Appellant : Shri Roshan Kumar, Advocate For Respondent/State : Shri Shailendra Sharma, PL ------------------------------------------------------------------------------------------------------------------ Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 28.02.2025 1. This appeal arises out of the judgment of conviction, and order of sentence dated 28.03.2019 passed by the learned Special Judge, POCSO (FTC), Dhamtari, District-Dhamtari CG, in Special Criminal Case- 124 of 2018, whereby the appellant has been convicted and sentenced as under with default stipulation: Conviction Sentence Under Section 376 of the IPC, and Section 6 of the POCSO Act, 2012 RI for 10 years and fine of Rs.500/- 2. Brief facts of the case are that on 25.08.2018 a written complaint (Ex.P1) was lodged by the father of the victim, PW3 to the Police Station- Digitally signed by V PADMAVATHI Date: 2025.04.23 10:49:34 +0530 Cra 803 of 2019 2 Virejhar, KURUD, with the allegation that on 25.08.2018, when they had gone to police station along with father of another victim for lodging report against the appellant, his minor daughter informed him that she too was subjected to rape by the appellant at the time of opening of the school when she was returning to her house at about 4.00pm. The appellant took her to his house and committed rape upon her. Thereafter, he also lodged report against the appellant. Based on the written complaint Ex.P1, an unnumbered FIR Ex.P2 has been registered against the appellant for the offence under section 376 AB of the IPC, and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’). The victim was sent for her medical examination to the Government Hospital, Kurud, where she was medically examined by Dr.Saroj Diwan, PW14, who, after her examination, gave report Ex.P14. While medically examining the victim, the doctor has not noticed any external injuries on her body, and opined that the findings suggestive of there is no evidence of recent sexual assault. The victim was referred to Gynecologist for expert opinion. Spot-map Ex.P3 was prepared by the police and Ex.P10 was prepared by the Patwari. The birth certificate of the victim has been seized vide seizure memo Ex.P7, the numbered FIR Ex.P13 was registered at Police Station-Kurud for the offence punishable under Section 376 AB and Section -6 of the POCSO Act against the appellant. The appellant was arrested on 26.08.2018 and he too was sent for his medical examination to the Civil hospital Kurud where he was medically examined by PW8, Dr Cra 803 of 2019 3 US Navratn, who gave report Ex.P12. After medical examination of the appellant, the doctor has opined that he was capable to perform sexual intercourse. 3. Statement of the prosecution witnesses under Section 161 of the CrPC, and statement of the victim under Section 164 of the CrPC have been recorded, and after completion of usual investigation,charge-sheet was filed against the appellant for commission of offence under section 376 AB of the IPC, and section 6 of POCSO Act before the learned trial court. 4. The charge under Section 376 (2) of the IPC and Section 6 of POCSO Act have been framed against the appellant. He denied the charge and claimed trial. 5. In order to prove the charge, the prosecution has examined as many as 14 witnesses, statement of the appellant under section 313 of the CrPC has also been recorded in which he denied the circumstances appearing against him, pleaded innocence and submitted that he has been falsely implicated in the offence. 6. After appreciation of 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. Cra 803 of 2019 4 7. Learned counsel for the appellant would submit that prosecution has proved 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 inordinate delay in lodging the FIR, as the incident is said to have been occurred in the first week of July, 2018 at the time of opening of the school but the report has been lodged on 25.08.2018 and there is no explanation for lodging the report at a belated stage. He would further submit that it is only when the father of another victim has gone to lodge report against the appellant with respect to another offence, present incident has also been reported. He would further submit that there is no clinching evidence with respect to age of the victim. No injuries have been found on the body of the victim and even no FSL report is there on record. Therefore, there is lack of cogent and clinching evidence against the appellant and he cannot be convicted for commission of offence of rape upon the victim, and he is entitled for acquittal. 8. On the other hand learned counsel for the state opposes the submissions made by learned counsel for the appellant and submitted that victim is aged about 8 years and her age is proved by the birth certificate Article A1, by which the victim is found to be aged about 8 years on the date of incident. From the evidence of the victim, guilt of the appellant has duly been proved, as act of the appellant could not be rebutted in her cross- examination. Although no injuries have been found Cra 803 of 2019 5 on the body of the victim but that itself does not make the prosecution case doubtful, when the victim firmly supports her case that she was subjected to sexual intercourse by the appellant. The 8 year old victim was scared by the act of the appellant and she could not disclose the incident to her parents but in view of her evidence before the court, guilt of the appellant has duly been proved. Evidence of the victim has been supported by other witnesses which is corroborated her evidence and therefore, there is overwhelming evidence available on record against the appellant, and the learned trial court after appreciating the entire facts and circumstances of the case, as well as evidence available on record, convicted the appellant and sentenced him, which needs no interference. 9. Heard learned counsel for the parties and perused the record. 10. Prosecution has proved age of the victim that she was aged about 8 years at the time of incident, by producing her birth certificate Article A1. In the said birth certificate, date of birth of the victim is recorded as 15.01.2010 and the date of incident was 1st week of July, 2018. Therefore, on that date victim was aged about 8 years. The age and date of birth of the victim have not been specifically challenged in the cross- examination of the witnesses. The birth certificate issued by the Registrar, Births and Deaths is an extract of the register kept in the office of the Registrar, Births and Deaths, which is a statutory document maintained in discharge of official duty by the Public Servant, and it is Cra 803 of 2019 6 admissible of Section 35 of the Indican Evidence Act, 1872. In absence of any specific challenge to the birth certificate, Article A1C, it cannot be disbelieved. Even otherwise, it is not the case of the appellant that the victim has crossed the age of 18 years. Therefore, in absence of any dispute with respect to age of the victim, it is found that she was aged about 8 years on the date of the incident. 11. So far as the allegation of rape is concerned, this court again examined the evidence of PW2, the victim. She stated in her evidence that she knew the appellant as he is also resident of her village. At the time of incident when she had gone to school along with her brother, and after leaving the school, the appellant allured her that he will give her a maize, and then, when she had gone with the appellant, he dragged her inside his house and committed rape upon her. Since she was scared she could not disclose the incident to anyone of her family members. In cross- examination, she remained firm that she along with her brother had gone to the house of the appellant, on the allurement that he will give them the Maize. In her police statement she disclosed about the entire incident. She denied the suggestion given by the defence that she took her brother back from the house of appellant and voluntarily stated that her brother fled away from the place, and the appellant dragged her inside his house. From the evidence of this witness, it is not reflected that the victim has falsely implicated the appellant, rather it reflects that the victim has stated whatever she suffered by the act of the appellant that the appellant committed rape upon her. Cra 803 of 2019 7 12. PW1 mother of the victim stated in her evidence that on 24th, mother of another victim came to her house, and informed her about the act of the appellant that he committed rape upon her daughter. When they had gone to the house of the appellant and informed their parents about the act of the appellant, they started quarrelling with them. Thereafter, mother of another victim lodged report against the appellant. Then, her daughter too has informed about the incident occurred with her, and then they have also lodged report against the appellant. Since the victim could not inform due to fear of the appellant, they could not lodge the report about the incident earlier, and when she disclosed the incident, immediately they lodged the report against the appellant. Nothing specific could be extracted from cross-examination of this witness also, that they have falsely implicated the appellant in the offence in question, or they made instrumental their daughter to falsely implicate the appellant in the offence. 13. PW3 is father of the victim. He also stated that when they had gone to the police station with respect to the offence with another victim, her daughter has informed him that she too was subjected to rape by the appellant at the time of opening of the school, and thereafter, he has also lodged the report against the appellant. In cross-examination, he admitted that when he reached to the police station, her daughter and another victim already present there in the police station and her daughter has informed him about the incident in the police station itself, but she could not disclose the date and month of the act of the appellant Cra 803 of 2019 8 by which she suffered. He too has remained firm in saying that when the victim/his daughter disclosed about the incident, he lodged report to the police. 14. PW4 is the Aunt of the victim, she too has supported the prosecution case that when the victim informed her father about the incident, they lodged report to the police station. Though she stated in her cross-examination that she for the first time deposed before the court about the incident about the present victim, but in view of evidence of the victim PW2, her mother PW1 and her father PW3, her evidence is not of much significant. 15. Although PW14, Dr Saroj Diwan, who medically examined the victim, has not noticed any external injuries on her body, but in fact that the alleged incident is about first week of July, 2018 and the report is lodged on 25.08.2018, even if no injuries have been found on the body of the victim that itself does not affect the prosecution case. 16. So far as the argument advanced by learned counsel for the appellant that FIR has been lodged after about 1 and half month for which no explanation has been given by the complainant, from perusal of evidence available on record it reflects that on 25.08.2018 when father of the victim had gone to police station to lodge report with respect to another victim, his daughter has disclosed that she too was subjected to rape by the appellant at the time of school opening, and when she was returning from the school along with her brother, the appellant dragged Cra 803 of 2019 9 her inside his house and after giving allurement of giving Maize, he committed rape upon her. Since she was scared she could not disclosed the incident to anyone. From an 8 year old girl, it cannot be expected that she boldly come forward to lodge report immediately, when she specifically stated that she was scared by the conduct of accused. When she considered that another victim was also subjected to rape by the appellant, and the report has been lodged, she too disclosed the incident to her father and then the report has been lodged, which cannot be said to be un-explained delay. Therefore, from the aforesaid discussion, I do not find any good ground to upset the well merited finding recorded by the learned trial court, convicting the appellant in the offence in question. 17. In the result, the appeal fails and it is hereby dismissed. The appellant shall undergo the entire sentence as ordered by the learned trial court. 18. Record of the trial court be sent back immediately to the trial Court concerned along with copy of this judgment for compliance and necessary action. 19. 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 Cra 803 of 2019 10 assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- (Ravindra Kumar Agrawal) JUDGE padma