2025:CGHC:48-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1045 of 2024 Ramprasad Bargah S/o Ramkumar Bargah Aged About 35 Years R/o Village- Revti (Khutanpara), Chowki- Revti, Police Station- Chandaura, District : Surajpur, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station, Chandaura, District : Surajpur, Chhattisgarh ... Respondent (Cause-title taken from Case Information System) ------------------------------------------------------------------------------------------------------------------ For Appellant : Shri DN Prajapati, Advocate For Respondent/State : Shri SS Obeja, Panel Lawyer --------------------------------------------------------------------------------------------------------- Hon'ble Shri Justice Ramesh Sinha, Chief Justice & Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board Per Ravindra Kumar Agrawal, J. 02.01.2025 1. Vide order dated 22.07.2024, notice was issued to the complainant/mother of victim, PW1, informing the pendency of appeal as well as application for suspension of sentence and grant of bail to the appellant, revealing that she can appear on the date fixed and object the prayer in bail application through her counsel. 2. Learned counsel for the State submitted that notice issued to the complainant has been served upon her. Despite service of notice upon the complainant, no one appears either in person, or through any other mode for recording their submission. Although the matter is being listed Cra 1045 of 2024 2 for consideration of IA-1 of 2024, application for suspension of sentence and grant of bail to the appellant, with the consent of learned counsel for the parties, it has been heard finally. 3. Present appeal under Section 374(2) of the CrPC, 1973 is filed by the appellant against the impugned judgment of conviction and order of sentence dated 27.04.2024, passed by the learned Special judge (POCSO), Pratappur, District-Surguja, in Special Session Case-9 of 2022, whereby the appellant has been convicted, and sentenced in the following manner, with default stipulation: Conviction Sentence Under Section 363 of the IPC RI for 7 years and fine of Rs.1,000/- Under Section 5(k)/6 of the POCSO Act, 2012 Life imprisonment which means imprisonment for rest natural life and fine of Rs.5,000/- 4. Brief facts of the case are that on 15.07.2022, mother of the victim lodged a written report Ex.P1 to the Police that on 14.07.2022 at about 10 am, one villager brought her daughter before her, and when she asked from the person who brought her daughter to her, then, he disclosed that the appellant herein was committing rape upon her daughter, at bank of the river near the shrubs. After seeing him, he fled away. Her daughter has also informed the incident that the appellant kidnapped her towards river side, gagged her mouth by cloth, and he committed rape upon her. She saw her private part by which blood was coming out, and when her husband came from the Jungle, she informed the incident to him also, Cra 1045 of 2024 3 and her other family members. On the next day, she lodged the report. Her daughter is mentally and physically not sound. Based on her written complaint, FIR Ex.P2 was registered against the appellant under Sections 376(AB) and 376(2)(l) of the IPC, and Section 6 of the Protection of Children from Sexual Offences Act, 2012, (for short, POCSO Act), and Section 3(1)(w)(i), and 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The victim was being sent for her medical examination to the Community Health Centre, Pratappur, where PW6 Dr Abhilasha Kori has medically examined her and gave report Ex.P11. While medically examining the victim, doctor does not find any external injury on her body, but found her hymen ruptured, and redness and swelling was present in and around the vagina. Two slides of her vaginal swabs were prepared, sealed, and handed over to the Police for chemical examination. She opined that no any sign or struggle, and no any injury or any kind of stain present over and around genitalia, and no any sign of struggle. Definite opinion about recent sexual intercourse can be given after FSL report. The victim was also referred to UPT, and to the radiologist for age determination. Social status certificate of the victim has been seized vide seizure memo Ex.P4. With respect to age and date of birth of the victim, Police has seized School Register from the Primary School vide seizure memo Ex.P7, and after retaining the attested true copy Ex.P10C, original school register was returned back to the School. According to school register, date of birth of the victim is recorded as 03.10.2008. Victim was examined by Cra 1045 of 2024 4 the Radiologist, PW7 Dr Amit Kumar Sahu. After her examination, he opined that, age of the victim is approximately 14 years, and his report is Ex.P12. Spot Map Ex.P13 was prepared by the Police. Appellant was arrested on 16.07.2022, and he too was sent for medical examination tot he District Hospital, Surajpur, where he was examined medically, by PW10, Dr Ajit Diwan, who gave his report Ex.P14A, and opined that appellant is able to perform sexual intercourse. The vaginal swabs of the victim, her underwear, and underwear of appellant were sent for chemical examination to the FSL, Ambikapur, from where, report C/01 has been received. Semen and sperms were found on the vaginal swabs and underwear of the victim and no sperms were found on the underwear of the appellant. 5. Statement of 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 the offence under Sections 376(3), 376(2) (l), and 323 of the IPC, and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and Section 3(2)(v) of the SC/ST Act, 1989 before the trial Court. 6. The learned trial court has framed charges against the appellant for the offence under Sections 363, 376(2)(j), and 376(3) of the IPC, Section 5(l) / 6 of the POCSO Act, and Section Section 3(2)(v) of the SC/ST Act, 1989. The appellant denied the charge and claimed trial. Cra 1045 of 2024 5 7. In order to bring home the charge, the prosecution has examined as many as 10 witnesses. The statement under section 313 of CrPC of the appellant was also recorded in which he denied the material appearing against him and pleaded innocence and has submitted that he has been falsely implicated in the offence. 8. After appreciation of oral, as well as documentary evidence led by the prosecution, learned trial Court has convicted and sentenced the appellant as mentioned in earlier part of this judgment. Hence this appeal by the accused/appellant. 9. Heard learned counsel for the parties and perused the record. 10. The first and foremost question for consideration would be the age of the victim on the date of the incident, as to whether she was minor or not on the date. The prosecution mainly relied upon two pieces of evidence they are, (1) the school admission and discharge register and (2) the ossification test report of the victim. 11. The school admission and discharge register Ex. P10C and certificate Ex. P9, which is sought to be proved by PW 4, Headmaster of the school. He stated in his evidence that he is posted as Headmaster of the Primary School, Amapara Revati, in the year 2009. The Police seized the school register from him vide seizure memo Ex.P7, and after retaining its attested true copy Ex.P10C, the original register was returned to him. He brought the original register with him, which is Ex.P10, and its Cra 1045 of 2024 6 attested true copy is Ex.P10C. As per the school register, the date of birth of the victim is 03.10.2008, and the certificate issued by him is Ex. P-9. In cross-examination, he admitted that entry in the school register had been made by him on the basis of information given by parents of the victim. Although he stated that no document regarding her date of birth was produced before him, he remained firm in saying that based on information given by her parents, he recorded her date of birth in the school register. There is no specific challenge that wrong date of birth of the victim is recorded in the school register. 12. Another piece of evidence of age of the victim is the ossification test report, Ex.P12, which is proved by PW7 Dr. Amit Kumar Sharma. He stated in his evidence that he is posted as a Radiologist at District Hospital, Surajpur, since 2022. He radiologically examined the victim with respect to her age and opined that her approximate age was 14 years on the date of her examination, i.e. 26.07.2022, and his report is Ex. P12. His opinion is on the basis of the examination of various bone joints of the body. The evidence of this witness has not been challenged in his cross-examination, and the opinion about the age of the victim remains unrebutted. There is no reason to disbelieve the evidence of this witness. 13. PW3, the victim is mentally and physically not sound, and a note has been put by the learned trial court in her deposition sheet at the time Cra 1045 of 2024 7 of recording her evidence that her evidence is to be recorded with the help of a translator. Her apparent age shown in her deposition sheet is 13 years. No question has been put to her in her cross-examination about her age. 14. PW1, mother of the victim has stated in her evidence that she does not know the date of birth of her daughter, but she is aged about 12 years. She is mentally and physically not sound. Nothing has been asked in her cross-examination about the age of the victim, and her evidence regarding the age of her daughter/victim could not be rebutted by the defence in her cross-examination. 15. PW2, father of the victim, has also stated in his evidence that he could not know the date of birth of his daughter/victim, but his daughter is aged about 12-13 years. She is mentally and physically not sound. The age of the victim as stated by this witness in his chief examination has not been challenged in his cross-examination. 16. From the aforesaid unrebutted evidence produced by the prosecution with respect to the age of the victim, it clearly reveals that the victim was about 14 years of age and was minor on the date of the incident, and the learned trial court has rightly considered the evidence available on record. We do not find any infirmity or perversity in holding the age of the victim as less than 16 years. Cra 1045 of 2024 8 17. So far as the offence of rape is concerned, the victim has been examined as PW3. The learned trial court has observed at the time of recording her evidence that she is mentally and physically not sound. Therefore, her evidence is to be recorded through the translator. She stated in her evidence that on the date of the incident, she was playing in her house, at that time, the appellant took her towards the canal and sat over her after removing his pant and her underwear. He also gave her one slap. In her cross examination, she stricken in saying that the appellant has took her with him and has removed her undergarment. She denied that she has not identified the person, who committed wrong with her. 18. PW5, who is the eyewitness to the incident, and neighbour of the victim stated in his evidence that he knew the victim, who is deaf and dumb. On the date of incident, when he was returning from his brother’s house at about 9-10 am in the morning, he heard hue and cry of a girl, coming from river side, and when he went there, he saw that appellant was committing rape upon the victim. When he went near them, and challenged him, then, the appellant took his clothes, and fled away. He chased him, and caught hold of him, then, he came to know that he is the appellant-Ram Prasad. But somehow, he got released from his clutches, and fled away. He again came back to the place of incident, and identified the victim, who is his neighbour, and then he took the victim to her house. When he saw the victim on the spot, her mouth was covered Cra 1045 of 2024 9 with clothes, and her underwear was lying on the ground. He informed her mother about the incident. In his cross-examination, this witness remained firm in saying that when he was returning from his brother’s house, he saw the incident, and caught hold of the appellant, and he somehow, fled away. 19. PW1, mother of victim stated in her evidence that on the date of incident, at about 10 am, she was cooking food in her house, and her daughter was playing in the Courtyard. When her daughter could not be seen by her, she was under impression that she may have gone to nearby places for playing. After some time, PW5 Shivmangal came there with her daughter, and scolded her as to why she left the victim in play ground, and informed about the incident to her that the appellant was committing rape upon her near shrubs. He also informed that when he challenged the appellant, he fled away. This witness has seen blood coming out from private part of the victim. In the evening, when her husband returned back from jungle, she informed him about the incident, and on the next day, they lodged report. Nothing could be elicited in her cross-examination, which makes her evidence doubtful, that PW5 Shivmangal has not informed about the incident, and she has not seen any blood on private part of the victim. 20. PW2- father of the victim has also stated that when he came back from jungle in the evening, his wife informed him about the incident, and Cra 1045 of 2024 10 commission of offence by the appellant. Thereafter, on the next day, they lodged the report. 21. PW-6, Dr Abhilasha Kori, who medically examined the victim has proved her MLC Report Ex.P11. While examining the victim, doctor has found that the victim was not mentally sound, her hymen was ruptured, redness, and swelling present in and around the vagina, and she stated in her report that definite opinion about recent sexual intercourse can be given after FSL report. In her cross-examination also, nothing specific has been asked from this witness except that no injuries were found on the body of the victim. 22. Section 3 of the POCSO Act provides the following: 3. Penetrative sexual assault. — A person is said to commit "penetrative sexual assault" if— (a)he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or(b)he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or(c)he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or(d)he applies his mouth to the penis, vagina, Cra 1045 of 2024 11 anus, urethra of the child or makes the child to do so to such person or any other person. 23. 23. In commission of crime, defined under Section 3(c) of the POCSO Act, accused did the act of removing undergarment of the victim, and was committing rape upon her, which was stated by the victim in her Court examination. 24. The above act of the accused/appellant has been confirmed in the Court by PW5, who saw the appellant committing rape upon the victim, and further corroborated by the evidence of Dr Abhilasha Kori, PW6. Therefore, even if the doctor has not given any concurrent opinion that the victim was subjected to rape but as per the definition given in Section 3c of the POCSO Act, the accused has committed the said offence with the victim is proved. 25. Section 6 of the POCSO Act reads as under: 6. Punishment for aggravated penetrative sexual assault.— Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. 26. In the case at hand, victim was minor, below the age of 16 years on the date of incident, which has been proved by the School Register, as Cra 1045 of 2024 12 well as the ossification test report Ex.P12, her allegation ahs been supported by PW5, who is eyewitness to the incident, and PW6, who medically examined the victim. Further, in the vaginal swab of the victim, semen and sperms were found, which further corroborate the MLC report Ex.P11, given by the doctor, PW6, and the evidence of PW3 victim, as well as PW5, eyewitness. 27. In case of Ganesan v. State, (2020) 10 SCC 573, the Supreme Court observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. 28. In case of State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575, it was observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. 29. In the case of Sham Singh v. State of Haryana, (2018) 18 SCC 34, the Supreme Court observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It was further Cra 1045 of 2024 13 observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases, amounts to adding insult to injury. 30. Relying upon the aforesaid evidences, and the law laid down by the Hon’ble Supreme Court, we see no reason to doubt the credibility of witnesses as well as the victim, and they are found to be reliable and trustworthy, therefore, the conviction of the appellant for the alleged offences can be sustained. 31. In the matter of Parhlad and another Vs State of Haryana, 2015 8 SCC 688, Hon’ble Supreme court has observed 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 civilized 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 the IPC but also 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 Cra 1045 of 2024 14 allowance or grant. It recognizes rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Articles 14 and right to life under Article 21 of the Constitution, for they are the “fon 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 realize that when they indulge in such an offence, the really create a concavity in the dignity and bodily integrity of an individual which is recognized, assured and affirmed by the very essence of Article 21 of the Constitution. 32. In view of above, we do not find any good ground to interfere with the appeal, and in the impugned judgment of conviction, and sentence, passed against the appellant. The appeal filed by the appellant, therefore, is dismissed. He shall undergo the entire jail sentence as imposed upon him by the learned trial Court. 33. 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 Cra 1045 of 2024 15 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. 34. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice padma