1 2026:CGHC:23699-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 64 of 2026 1 - Kamaljeet Nayak S/o Late Shri Ghansiram Nayak, Aged About 48 Years, R/o Village- Pandar, Ward No. 08, Shanti Chowk Pandar, Police Station- Patan, District : Durg, Chhattisgarh ... Appellant versus 1 - State of Chhattisgarh, Through The Station House Officer, Police Station- Patan, Durg, District : Durg, Chhattisgarh ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Aman Tamrakar, Advocate. For State : Mr. Saumya Rai, Deputy Govt. Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 15-06-2026 1. The matter has been listed for order on non-supply of the address of the complainant by the State counsel, however, learned counsel appearing for the State would submit that notice has been served to the complainant, i.e., mother of the victim, PW-2 on 05.05.2026. Though the matter has been listed on motion hearing, however, with the consent of the parties the appeal has been heard finally. Digitally signed by MOHAMMED AADIL KHAN Date: 2026.06.19 20:19:25 +0530 2 2. The present criminal appeal has been filed under Section 415(2) of Bharatiya Nagarik Suraksha Sanhita, 2023 (in short ‘BNSS’) against the the impugned judgment of conviction and order of sentence dated 10.07.2025 passed by learned Additional Sessions Judge, Patan, Durg, District Durg in New Special Criminal Case (POCSO) No.01/2025 whereby the appellant has been convicted and sentenced in the following manner with a direction to run all the jail sentences concurrently:- Conviction Sentence U/s 127(2) of BNS R.I. for 06 months and fine of Rs. 5,000/-, in default of payment of fine additional R.I. for 01 month, U/s 6 of POCSO Act R.I. for 20 years and fine of Rs. 5,000/-, in default of payment of fine additional R.I. for 01 year. U/s 65(2) of BNS No separate sentence has been awarded. 3. The prosecution case in brief is that, on 03.09.2024 mother of the victim lodged a written complaint Ex.-P/2 to police alleging that at about 02:00 p.m. when her minor daughter was returning from the school, on the way the appellant allured her and took her to bathroom towards the house of PW-3. When PW-3 heard crying of the victim he opened the door and saw both of them inside the bathroom. PW-3 took her minor daughter to her house and then the victim disclosed the incident. Based on the written complaint lodged by the mother of the victim, PW-2, the FIR Ex.-P/3 was registered against the appellant for the offence under Section 75, 76, 127(2) of Bharatiya Nyaya Sanhita, 2023 (in short ‘BNS’) and 3 Section 8 of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’). The victim was sent for her medical examination to Community Health Center, Patan where she was medically examined by the doctor, however, no external or internal injuries have been found on her body. Spot map Ex.-P/4 was prepared by police and Ex.-P/6 was prepared by Patwari. With respect to the date of birth of the victim police has seized the birth certificate and Adhar Card of the victim vide seizure memo Ex.- P/5 and according to the birth certificate, the date of birth of the victim is 04.12.2017. The school register has also been seized to prove age of the victim vide seizure memo Ex.-P/8 and after retaining its attested true copy Ex.-P/7C, the original register was returned back to the school. The appellant was arrested on 04.09.2024. The map of the place of incident was also videographed which was taken in a pen drive which is Article A-(1) and the said pen drive was sent for its cyber examination and the Hash report was annexed with the document Article A-(1). Statement of the witnesses under Section 180 of BNSS and statement of the victim under Section 183 of BNSS were recorded and after completion of the investigation of usual investigation charge sheet was filed against the appellant before the learned trial Court for offence under Section 75, 76, 127(2) of BNS and Section 8 of POCSO Act. 4. The learned trial Court has framed charge against the appellant for the for the offence under Section 65(2) of BNS in alternative 4 Section 74 of BNS, Section 127(2) of BNS, and Section 6 of POCSO Act in alternative Section 10 of POCSO Act. The appellant denied the charge and claimed trial. 5. In order to prove the charge against the appellant, the prosecution has examined as many as 10 witnesses. The statement of appellant under Section 313 CrPC has also been recorded in which he denied the circumstances that appears against him, pleaded innocence and has submitted that he has been falsely implicated in the offence in question. 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 this judgment. Hence this appeal. 7. Learned counsel appearing for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of the prosecution witnesses which cannot be made basis to convict the appellant for the offence in question. He would also submit that from the evidence of the victim there is no any incident of rape committed by the appellant. He would refer the evidence of PW-3 in whose house the alleged incident is said to have been occurred. From the evidence of PW-3 it clearly reveals that one cannot enter into the bathroom of his house without entering and bypassing his house from the main gate. There are other inmates in the house of PW-3, but none of them had seen the appellant 5 and the victim going towards the bathroom. He would also submit that the victim has not raised any objection when the appellant allegedly taking her towards bathroom. Further, no any external or internal injuries have been found on the body of the victim in her medical examination. The victim is a tutored witness and deposed on the instance of her parents and PW-3. He would also submit that evidence of the victim alone is not sufficient to convict the appellant for the offence in question as her evidence suffers from material exaggeration. In absence of any cogent and clinching evidence conviction of the appellant suffers from illegality and therefore, the appeal may be allowed and the appellant may be acquitted from the alleged offence. 8. On the other hand, the counsel for the State opposes the submissions made by learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions the evidence of the victim as well as other prosecution witnesses are reliable and sufficient to hold the appellant guilty for the alleged offence. He would further submit that absence of injury alone is not sufficient to disbelieve the evidence of the victim who has duly supported the prosecution case. The age of the victim has also been proved by leading cogent evidence and document obtained from the school of the victim which has been duly proved by the prosecution. As per the birth certificate and the school record, the victim is found to be minor. There are sufficient and overwhelming 6 evidence against the appellant that he committed the alleged offence with the victim and the learned trial Court has rightly convicted and sentenced him and his appeal is liable to be dismissed. 9. We have heard the counsel for the parties and perused the records of the case. 10. In the present case the victim is stated to be aged about 07 years on the date of incident and her age has been proved by the prosecution by producing school register Ex.-P/7C which has been proved by the Head Master of the school, PW-4. The birth certificate of the victim issued by Nagar Panchayat Utai in which the date of birth of the victim is shown as 04.12.2017. The birth certificate has been issued by the competent authority and admissible under Section 35 of the Indian Evidence Act, 1872. The challenge of the age of the victim has been elaborately considered by the by the learned trial Court considering the birth certificate and Adhar Card (Article A 01C) and school register Ex.- P/7C and also relied upon the judgment of the Hon’ble Supreme Court reported in AIR 1988 SC 1796 (Birad Mal Singhvi Vs. Anand Purohit) and has concluded that the age of the victim on the date of incident was 6 years and 9 months, in which we do not find any infirmity or perversity. 11. So far as involvement of the appellant in the offence in question is concerned, we again examine the evidence of the victim PW-1. 12. After examining the Intelligence Quotient (IQ) of the victim the 7 learned trial Court recorded her evidence. She stated in her evidence that when she was returning from the school and after deboarding from bus the appellant forcefully took her with him. He identified the accused that he took her with him. On the way he took her in a bathroom of the house, bolted the door and removed her clothes including underwear, thereafter, he also removed his jeans pant and underwear and put his private part on her private part and behaved in very filthy manner. She started crying. She also disclosed the part of her body where the appellant put his private part. After hearing her cry another person came and opened the door and scolded the appellant. The person who opened the door re-dressed her and left her to her house. She informed the incident to her mother and her mother has lodged the report. In cross-examination she stated that she alone deboarded from the bus at about 02:00 p.m. She denied that the appellant had not taken her in the bathroom. When she denied to make statement to police that the appellant put his private part in her private part, the Court has asked the question as to what the appellant did with her, then she disclosed that the appellant removed his clothes and also her clothes and thereafter committed bad work with her. She also disclosed name of the appellant to police. Though she admitted that her mother has disclosed as to what statement she had to give, but subsequently when question has been put to her that the appellant did nothing with her she denied the same and stated that the appellant 8 committed wrong with her. She also strongly denied that she is not telling lie. From her entire evidence it clearly comes that on the date of incident the appellant took the victim with him towards bathroom of PW-3 where he removed his and her clothes and put his private part to the private part of the victim. 13. PW-2 is the mother of the victim. She stated in her evidence that on the date of incident PW-3 brought her minor daughter and informed about the incident and then the victim also informed her about the incident that the appellant took her inside the bathroom, removed her clothes and put his private part on her private part. When she started crying PW-3 came there and rescued her. Thereafter, they lodged the report. In cross-examination she was cross-examined about the map of the house of PW-3, but she disclosed that the house of PW-3 is on the road and visible from her rooftop. From her detailed cross-examination the defence could not be able to abstract any material which makes her evidence doubtful or impute any false allegation to the appellant in the offence in question. 14. PW-3 is the witness who rescued the victim. He stated in his evidence that on the date of incident when he had gone to his cow shed to feed his cattle, on the way he heard the cry of female child and when he opened the door of the bathroom the victim and the appellant came out from there. He saw that the clothes of the victim was removed and he scolded the appellant. He took the victim to her house and informed the incident to her parents. 9 Thereafter, they lodged the report. In cross-examination he admitted that the door bolt was not there inside the bathroom. The suggestion given by the defence has been admitted by him that when he opened the door the appellant and the victim were standing separately. He admitted that he did not see both of them going towards the bathroom of his house. He also shown his ignorance as to whether the victim had gone to his bathroom and after seeing lizard there she started crying and thrown her clothes and at the same time the appellant opened the door and convinced her. From the evidence of this witness virtually the appellant admitted his presence inside the bathroom along with the victim which exactly the evidence of the victim as well the PW- 3. 15. PW-5 is maternal uncle of the victim and PW-6 is uncle of the victim and PW-7 is maternal aunt of the victim, though they are not witness to the incident, but they stated whatever they came to know from the narration of the incident disclosed by the victim and PW-3. 16. From the evidence of the victim PW-1, when she specifically alleged that the appellant took her inside the bathroom of PW-3 and after removing his and her clothes he put his private part on her private part, she can be put as sterling witness as there no infirmity and discrepancy has been found in her evidence. 17. The Hon’ble Supreme Court in the matter of Santosh Prasad @ Santosh Kumar Vs. State of Bihar, 2020 (3) SSC 443, in which 10 it was observed as under: “5.4.2 In the case of Rai Sandeep alias Deepu [Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21], this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it is observed and held as under: “22 In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the 11 said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 18. Though injuries have not been found on the body of the victim, but putting the private part on the private part of the victim by the appellant can constitute offence of rape as has been defined under Section 63 of Bharatiya Nyaya Sanhita, 2023 (Section 375 of the IPC). It is necessary to notice here Section 63 of Bharatiya Nyaya Sanhita, 2023 which reads as under:- “Rape. 63. A man is said to commit "rape" if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman, or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra, or anus of a woman, or makes her do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any part of the body of such woman, or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, ……...” 19. In the case of Satyapal Vs. State of Haryana, (2009) 6 SCC 635 the Hon’ble Supreme Court has held in para 18 of its judgment that:- “18. In Modi's Medical Jurisprudence, 23rd Edn., at pp. 897 and 928, it is stated: "To constitute the offence of rape, it is not necessary that there would be complete penetration of the penis with emission of 12 semen and the rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains….. * * * In small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and perineum.” 20. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim’s evidence, then it will not be safe to rely on the said version of the victim. There is no material contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond any reasonable doubt, in which the prosecution has succeeded in the instant case. 21. In the case of State of Himachal Pradesh Vs. Sanjay Kumar alias Sunny, (2017) 2 SCC 51 the Hon’ble Supreme Court has 13 held in para 30 and 31 that:- “30. …...We have already discussed above the manner in which testimony of the prosecutrix is to be examined and analysed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. ... 31. ….By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance {See Bhupinder Sharma v. State of Himachal Pradesh[(2003) 8 SCC 551 : 2004 SCC (Cri) 31]}. Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.” 22. Further in the case of State of Punjab Vs. Gurmit Singh and others, (1996) 2 SCC 384 the Hon’ble Supreme Court has held in 14 para 21 of its judgment that:- “21. ……..A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. 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 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.” 23. Considering the entire facts and circumstances of the case, evidence available on record and aforesaid law laid down by the Hon’ble Supreme Court, this Court is of the considered opinion that the learned trial Court has rightly convicted the appellant for the offence under Section 65(2) and 127(2) of BNS and Section 6 of POCSO Act and keeping in view the provision of Section 42 of BNS no separate sentence has been awarded to the appellant for the offence under Section 65(2) of BNS, however, sentence awarded to the appellant under Section 6 of POCSO Act which does not suffer from any illegality or perversity. Accordingly, we do not find any scope for interference in the present appeal filed by the appellant against the impugned judgment of conviction and sentence. Consequently, the appeal filed by the appellant is dismissed. 15 24. The appellant is reported to be in jail since 04.09.2024. He shall serve the entire sentence as awarded by the learned trial Court. 25. 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 assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 26. Record of the trial Court be sent back along with copy of this judgment. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Aadil