CGHC010502202025 2026:CGHC:34114-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2484 of 2025 Yashwant Tiwari S/o Umashankar Tiwari Aged About 24 Years R/o Village- Shanidera, Barpali, Police Station- Shyang, District : Korba, Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through S.H.O. Of The Police Station Dharamjaigarh Adn District Raigarh, C.G. ...Respondent(s) (Cause-title taken from Case Information System) ------------------------------------------------------------------------------------------------------------------ For Appellant : Shri Abhishek Saraf, Advocate For Respondent/State : Shri SS Baghel, GA --------------------------------------------------------------------------------------------------------- Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board Per Ravindra Kumar Agrawal, J. 05.08.2026 Heard Shri Abhishek Saraf, learned counsel for the appellant. Also heard Shri SS Baghel, learned Government Advocate for the State. 1. Present appeal has been listed for consideration on IA- 1 of 2025 which is an application for suspension of sentence and grant of bail. Considering the fact that the appellant is in jail since 24.06.2020 with consent of the parties, the appeal itself has been heard finally and the said IA stands disposed off. Cra 2484 of 2025 2 2. Present appeal under section 415 (2) of the BNSS 2023 filed by the appellant against the impugned judgment of conviction and sentence dated 03.11.2025 passed by the learned Special Judge FTSC POCSO, Gharghoda, District Raipur in Special case- 24 of 2021, whereby the appellant has been convicted and sentenced in the following manner with default stipulation: Conviction Sentence u/s 363 of the IPC RI for 3 years and fine of Rs.500/- u/s 376 AB of the IPC Life imprisonment (Till lifetime) and fine of Rs.5,000/- u/s 4(2) of the POCSO Act Life imprisonment and fine of Rs.5,000/- u/s 3(2)(v) of the SC/ST Act Life imprisonment and fine of Rs.5,000/- All the sentences to run concurrently 3. Case of the prosecution in brief is that PW3, father of the victim lodged a report Ex.P1 to the police to the police that on 22.06.2020, appellant came to his house, took his minor daughter on his motor cycle and when they did not return for a considerable period, they started searching her and they could find her in company of the appellant and his father. He took her back and lodged the report. Based on his written report, FIR Ex.P2 was registered against the appellant for the offence under section 363 IPC and recovery Panchnama Ex.P3 was prepared on 23.06.2020. Spot map Ex.P4 was prepared by the police and Ex.P5 was prepared by Patwari. The birth certificate of the victim has been seized vide seizure memo Ex.P7 and the social status certificate of the victim Cra 2484 of 2025 3 has also been seized vide seizure memo Ex.P8. The victim was sent for her medical examination to the Community Health Centre, Dharamjaigarh, where she was medically examined by PW7, Dr.N.Lakda, who gave her report Ex.P14. While medically examining the victim, injuries have been found on her private part, including damage of hymen and bleeding was present. She opined that sexual intercourse has been done with the victim. Two vaginal slides were prepared, sealed and handed over to the Police for medical examination. Victim was also referred to the opinion of the radiologist for her age determination. Appellant was arrested on 24.06.2020 and he too was sent for his medical examination to the Community Health Centre, Dharamjaigarh, where he was medically examined by PW1 Dr.S.S.Bhagat, who gave his report Ex.P1. While medically examining the appellant, doctor has not noticed any external injury on his body and found him capable for performing sexual intercourse. The memorandum statement Ex.P12 of the appellant has also been recorded and his motor cycle has been seized vide seizure memo Ex.P13. Vaginal slides of the victim, her underwear, and her skirt and also the semen slide of the appellant have been sent for chemical examination to the regional FSL Bilaspur, from where report Ex.P22 was received and as per the FSL report,semen and sperm were present on the underwear and skirt of the victim and on the semen slide of the appellant. The school record of the victim has also been seized by the Police with respect to age and date of birth of the victim. Cra 2484 of 2025 4 4. Statement under section 161 CrPC of the witnesses and statement of the victim under section 164 CrPC have been recorded and after completion of usual investigation, charge-sheet was filed before the learned trial court for the offence under sections 363, 376 AB of the IPC and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘SC/ST Act’) and section 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). 5. 5. Learned trial court framed charge against the appellant for the offence under section 363, 376AB of the IPC, Section 3(2)(v) of the SC/ST Act, and Section 4 of the POCSO Act. Appellant denied the charge and claimed trial. 6. In order to prove the charge against the appellant, prosecution has examined as many as 21 witnesses, statement of the appellant under section 313 of the CRPC has been recorded, in which he denied the circumstances appearing against him, pleaded innocence and submitted that he has been falsely implicated in the offence. 7. After appreciation of oral as well as documentary evidence lead by the prosecution, learned trial court has convicted the appellant and sentenced him as has been mentioned in the earlier part of the judgment. Hence this appeal. Cra 2484 of 2025 5 8. Learned counsel for the appellant would submit that prosecution has failed to prove the 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. There is no allegation in the written complaint lodged by father of the victim that victim was subject to sexual intercourse by the appellant and it has been subsequently developed that he committed the offence of rape. He would further submit that the victim is a tutored witness and cannot be relied upon for holding conviction of the appellant. At the time when the victim was recovered from the possession of the appellant, she has not made any allegation of rape. She also admitted in her evidence that she has not disclosed about any offence committed with her by the appellant and the evidence of the victim PW1 is full of omissions and contradictions. He would further submit that prosecution has also could not be able to prove the offence under the SC/ST Act that the appellant knowingly committed the offence of rape upon the victim and therefore, his conviction under the SC/ST Act cannot be sustained and the same is also liable to be set aside. There is material inconsistency in the evidence of the prosecution witnesses and the appellant is, atleast entitled for benefit of doubt and therefore, by giving him the benefit of doubt, he may be acquitted. 9. On the other hand, learned counsel appearing for the State opposes the submissions made by the learned counsel for appellant and submitted that prosecution has proved its case beyond reasonable doubt. Cra 2484 of 2025 6 But, for minor omissions and contradictions the evidence of the prosecution witnesses is reliable and sufficient to hold the appellant guilty for commission of alleged offence. The victim being a girl aged about only 7 years, duly supported the prosecution case that she suffered the incident of rape by the appellant. Though she stated that she did not disclose the incident to her father but from perusal of her evidence in entirety, it clearly discloses that she suffered the incident of rape by the appellant. There is no reason for false implication of the appellant. The allegation of rape upon the minor victim has been supported by the evidence of doctor, who medically examined her and found injuries on her private parts. The FSL report corroborates presence of semen and sperm on clothes of victim and thus, the entire chain of allegations has been proved by the prosecution. The evidence of the victim is sufficient to hold conviction of appellant and it is not required any corroboration, yet there are other evidences available on record, which directly pointing towards guilt of the appellant. The victim was recovered from the possession of the appellant and there are some injuries on her private part which itself is sufficient to held that appellant committed the alleged offence with the victim. The learned trial court, after meticulously examining the evidence available on record, hold the appellant guilty and convicted him, which is justified and does not require any interference by this court. 10. We have heard learned counsel for the parties and perused the record of the trial court with utmost circumspection. Cra 2484 of 2025 7 11. The first question arises for consideration could be the age of the victim, whether prosecution has proved her age that she is aged about 7 years on the date of incident. 12. Prosecution has mainly relied upon the birth certificate, Article A1, issued by the Registrar, Births and Deaths, Gram Panchayat-Khadgaon, District-Raigarh, in which her date of birth was recorded as 03.08.2012. The said birth certificate is a statutory document issued on the basis of entries made in the official record and which is admissible under Section 435 of the Evidence Act, 1872 and it has been proved by father of the victim, PW3. Further piece of evidence regarding age of the victim is, School Register, Article-A1C, which has been proved by PW13, Head Master of the School. In this School Register, date of birth of the victim has been recorded as 03.08.2012, which is the same date of birth, as it has been recorded in her birth certificate, Article A1. PW13, Head Master of the School is the author of the School Register, who denied the suggestion that wrong entry has been made by him in the School Register with respect to date of birth of the victim. Even otherwise, the defence has not specifically challenged age of the victim that she was not aged of 7 years at the time of incident, and her age has been disclosed by the witnesses by reducing it. Hence, the evidence produced by the prosecution regarding age of the victim is found to be sufficient and consideration of the learned trial court that the victim was less than 12 years of age on the Cra 2484 of 2025 8 date of incident is found proved by the prosecution, which is not suffered from either perversity, or illegality. We also concur with the said consent of learned trial Court with respect to age of the victim. 13. So far as the offence of kidnap and rape are concerned, we again examine the evidence of PW2, minor victim, whose evidence has been recorded by the trial court after preliminary satisfaction of her IQ (Intelligence Quotient). She stated in her evidence that she knew the appellant and his nick name is ‘chotu’, and he is very bad person. He took her by saying that ‘let’s go to buy eggs’. He took her to village Kantaduari by his motorcycle and slapped her. Though she stated that appellant did not do any bad work with her, but she further stated that the Police persons took her back from the clutches of the appellant. She disclosed the entire incident to her father. Her statement was also recorded at Gharghoda Court. She admitted in ter evidence that the appellant used to come to her uncle’s house and therefore, she also calls him ‘uncle’. Appellant took her near culvert and he committed ‘marpit’ with her. She denied any offence of rape against her by the appellant. In her cross-examination, she admitted that when they could not return for a considerable period, her parents started search her, and then, they lodged the report to the Police. She also stated that she has not disclosed about any bad work committed by the appellant with her. 14. PW3, father of the victim has stated in his evidence that on the date of incident, when he came to know that the victim is missing, he started Cra 2484 of 2025 9 searching her and came to know that she had gone with the appellant on his motorcycle. His grandmother informed him that the appellant had taken the victim with him saying he was going to buy eggs. He had gone to the house of the appellant and came to know that the victim was being taken to village-Kantaduari and when they proceeded to Kantaduari, they found the appellant there and his daughter was also present there. His daughter also informed him that the appellant committed rape upon her near Hati culvert. She also disclosed the manner in which she suffered the offence of rape with her, and also ‘marpit’ with her. Then, he lodged report to the Police. In cross-examination, he admitted that he knew the appellant, who used to come to the house of his uncle. The victim was found at village- Kantaduari in the night, at about 3.30 am, with a lady present there. He did not know the said lady and thereafter, he took his daughter back. In the next morning, he made a written complaint against the appellant. He admitted in his evidence that at the time of lodging written report Ex.P1A, and FIR Ex.P2, he has not disclosed before the Police that the victim has informed him about the offence of rape. He further stated that the victim is directly not informed him about the incident but she disclosed the incident to her mother and her mother informed him about the incident. He denied that no incident was disclosed to him by mother of the victim. 15. PW20 is mother of the victim. She turned hostile and has not supported the prosecution case about any information given by the victim Cra 2484 of 2025 10 to her regarding the offence of rape upon her daughter. She only supported the prosecution case that when the victim went missing, they started searching her and she found her daughter at village-Kantaduari with the appellant. When they took her back, she was in scary condition, and did not disclose any incident about her. 16. When the victim was recovered from possession of the appellant, the very next day, report has been lodged and thereafter, victim was sent for her medical examination by the Police and she was medically examined by the doctor on 24.06.2020. As per the evidence of PW7, Dr N Lakda, who examined the victim, she found injuries on her private part. She stated in her evidence that the victim was brought before her for her medical examination and her medical examination, she noticed no external injury on her private part. However, dried blood was present on Labiya Majora externally, hymen was ruptured, active bleeding was present and vaginal tear longitudinally till the Anus, Clitoris, Urethral opening was present. The injury found on the body of the victim was within 48-60 hours from the time of her medical examination and she opined that sexual intercourse was done with the victim. Two vaginal slides have been prepared, sealed, and handed over to the Police for chemical examination and she was also referred to the Radiologist for her age determination. She proved her MLC report, Ex.P14 and also examined her clothes, in which bleeding like stains were found present. Cra 2484 of 2025 11 In her cross-examination, she admitted that hymen can also be ruptured for any other reason and it is always not necessary that hymen could be ruptured only by sexual intercourse. She denied that the hymen could be ruptured by cycling, or playing. She voluntarily stated that at the age group of victim, gentiles are less developed. In further cross-examination, she denied that due to rupture of hymen, dried blood was present on Labia Majora. She voluntarily stated that she noticed injury on her private part, from hymen up to the anus. From the evidence of the doctor, who medically examined the victim, injuries on her private part have been duly proved by this witness, who further opined that the victim suffered sexual intercourse. 17. From the FSL report, Ex.P22, semen and sperm were found on the underwear and skirt of the victim, and the semen slide of the appellant, which also corroborates the evidence of father of the victim, that the victim disclosed about the incident of rape upon her and the evidence has been duly supported by the medical evidence, as well as scientific evidence. 18. PW4 is uncle of the victim. He stated in his evidence that when the victim went missing, they started searching her along with her father and during their search, they came to know that the appellant took the victim to village-Kantaduari and then the victim recovered from the said village from possession of the appellant. Victim informed them that near Hati culvert, appellant removed her clothes for committing bad work with her. Cra 2484 of 2025 12 In his cross-examination, he remained firm in saying that at village- Kantaduari, along with the victim, another lady was also present, whom he did not know. He also firmly said that the victim disclosed him that near Hati culvert, appellant removed her clothes. 19. PW5 is elder father of the victim, who has not substantially supported the prosecution case, except recovery of the victim from the village-Kantadurai, from the possession of the appellant. PW6 is owner of the motorcycle, by which the appellant took the victim towards village- Kantaduari. 20. PW8 is cousin brother of the victim, who also went in search of the victim when she went missing. During her search, this witness came to know that she was being taken by the appellant, and they had gone towards bus stand. Subsequently, they came to know that they have gone towards village-Kantaduari and thereafter, they took the victim from there, from possession of the appellant. He too denied about any act of sexual intercourse by the appellant upon the victim but he only supported the prosecution case to the extent that victim was recovered from possession of the appellant . 21. PW9 is great grandmother of the victim, who also stated in her evidence that appellant took the victim on motorcycle. She also did not support the prosecution case that victim informed about the incident of rape by the appellant. Cra 2484 of 2025 13 22. PW10 is the Investigating Officer, who duly supported the prosecution case. He stated in his evidence that on the information received from father of the victim, FIR Ex.P2 has been registered and after due investigating, charge-sheet has been filed against the appellant. Being the procedural witness to the investigation, he duly supported the prosecution case, which he conducted during the investigation. 23. PW11 is the Additional Superintendent of Police, who further investigated the case with respect to appellant’s commission of offence under Section 3(2)(v) of the SC/ST Act and after completion of investigation, filed charge-sheet before the learned trial Court. He also supported the prosecution case regarding investigation under the Atrocity Act. 24. PW12 is another Additional Superintendent of Police, who particularly investigated and recorded statement of the witnesses during investigation with respect to crime under the Atrocity Act, and duly proved her part of the investigation. 25. From the aforesaid evidences, though the victim and her mother denied that the victim disclosed about the incident but her father has specifically stated in his evidence that when the victim recovered from possession of the appellant from village-Kantaduari, she disclosed about the incident that near Hati culvert, appellant committed rape upon her. The allegation of rape has been duly supported by the medical evidence of Dr N Lakda, PW7, who in her medical examination, found injuries on Cra 2484 of 2025 14 private part of the victim and the allegation has been further supported by the evidence of FSL report, in which semen and sperm have been found on the clothes of the victim. Though the victim does not support the allegation of rape, but other circumstances, i.e. evidence of her father, medical evidence, and scientific evidence clearly demonstrate that the victim suffered offence of rape by the appellant. Time of injury as has been described by the doctor, who medically examined her, has also been corroborated with time of the incident and thus, prosecution has duly proved that the appellant kidnapped the minor victim, and committed rape upon her. 26. So far as offence of Section 3(2)(v) of the SC/ST Act is concerned, it comes in the evidence that appellant used to come to the house of her uncle and the victim too used to call him ‘uncle’ and thus, appellant was well within the knowledge that the victim belongs to Scheduled Tribe community, which has been proved by the document Article-A2, which is the social status certificate of the victim, proved by PW10, Manorama Kurre, Constable. Appellant has also not specifically challenged the said social status certificate of the victim, that she does not belong to that particular caste and there is no deficiency in the investigation conducted for the said offence. 27. The provision of Section 3(2)(v) of the SC/ST Act is attracted when the accused commits any offence under the IPC, punishable with imprisonment for a term of ten years or more against a person, knowing Cra 2484 of 2025 15 that such person is a member of a Scheduled Caste or a Scheduled Tribe. 28. In the present case, appellant was well within the knowledge of social status of the victim, as he is well acquainted with her family, and then he committed the offence of rape, which has been found proved and thus, the offence of appellant squarely falls under Section 3(2)(v) of the SC/ST Act and his conviction for the said ofence is also been found justified by this Court. 29. In case of State of Rajasthan Vs Chatra, (2025) 8 SCC 613, Hon’ble Supreme Court has observed that even when the victim did not disclose about commission of rape upon her, and when the other evidences sufficiently prove the offence of rape, accused can be convicted for the said offence and held as under: “26. Having considered the principles of law as above, let us now proceed further. We have independently examined the evidence of the witness, by placing reliance on whom the trial court recorded the conviction of the respondent-accused, which was erroneously appreciated by the High Court, the same was reversed by the High Court. The child witness (victim), it is true, has not deposed anything about the commission of the offence against her. When c asked about the incident, the trial Judge records that 'V' was silent, and upon being further asked, only shed silent tears and nothing more. Nothing could be elicited from the testimony regarding the commission of the offence. This, in our view, cannot be used as a factor in favour of the respondent. The tears of 'V', have to be understood for what they are worth. This silence cannot accrue to the Cra 2484 of 2025 16 benefit of the respondent. The silence here is that of a child. It cannot d be equated with the silence of a fully realised adult prosecutrix, which again would have to be weighed in its own circumstances. 27. It has been held in Hemudan Nanbha Gadhvi v. State of Gujarat (2019)17 SCC 523 that a nine year old prosecutrix turning hostile would not be a fatal blow to the prosecution case when other evidence can establish the guilt of the accused. In these facts, 'V' has not turned hostile. Trauma has engulfed her in silence. It e would be unfair to burden her young shoulders with the weight of the entire prosecution. A child traumatised at a tender age by this ghastly imposition upon her has to be relieved of being the basis on which her offender can be put behind bars. In almost all other cases, the testimony of the prosecutrix is present and forms an essential part of the conviction of an accused, but at the same time, there is no hard-and-fast rule that in the absence of such a f statement a conviction cannot stand, particularly when other evidence, medical and circumstantial, is available pointing to such a conclusion. Reference can be made to State of Maharashtra v. Bandu(2018)11SCC 163, wherein the prosecutrix was "deaf and dumb and mentally retarded". The Court held that even in the absence of her being examined as a witness, other evidence on record was sufficient to record conviction of the accused. The principle of law, therefore, is that g if the prosecutrix is unable to testify, or for some justifiable reason remains unexamined, the possibility of conviction is automatically excluded. At this stage, it is important to record that we should not for a moment be understood saying that a person with a disability is by definition an incompetent witness.” 30. In case of Prahlad Vs State of Haryana, (2015) 8 SCC 688, Hon’ble Supreme Court has observed that: Cra 2484 of 2025 17 “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 civilised 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 IPC but also the 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 allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitations. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Article 14 and right to life under Article 21 of the Constitution, for they are the "fons 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 realise that when they indulge in such an offence, they really create a concavity in the dignity and bodily integrity of an individual which is recognised, assured and affirmed by the very essence of Article 21 of the Constitution.” 31. Also in case of State of Punjab Vs Gurmit Singh, (1996) 2 SCC 384, Hon’ble Supreme Court has held that: Cra 2484 of 2025 18 “21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. 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.” 32. In view of the facts and circumstances of the case, evidence available on record and also in view of aforesaid law laid down by the Hon’ble Supreme Court, this Court is of the considered opinion that the Cra 2484 of 2025 19 prosecution has duly proved the case against the appellant that the appellant committed the offence of kidnapping and rape upon the minor victim, who belongs to the Scheduled Tribe Community and has rightly convicted and sentenced him for the alleged offence. 33. In the result, we do not find any substance in the appeal filed by the appellant, and accordingly, the appeal is hereby dismissed. 34. The appellant is reported to be in jail since 24.06.2020. He shall undergo the entire sentence as awarded by the learned trial Court. 35. 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. 36. The records of the case along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice padma Digitally signed by V PADMAVATHI Date: 2026.08.12 10:52:13 +0530