Nafr High Court
Case Details
1 2025:CGHC:4129 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1338 of 2019 Manoj Singh S/o Manoranjan Singh Aged About 23 Years R/o P.V. 65, Thana Pakhanjore, District- Uttar Bastar Kanker, Chhattisgarh., District : Kanker, Chhattisgarh versus ... Appellant The State Of Chhattisgarh Through Police Station Pakhanajore, District- U.B. Kanker, Chhattisgarh., District : Kanker, Chhattisgarh (Cause title taken from Case Information System) ... Respondent For Appellant For Respondent/State : : Mr. Parag Kotecha, Advocate Mr. Jitendra Shrivastava, Govt. Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 22/01/2025 1. The appellant has filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 31.07.2019, passed by learned Special Judge (Protection of Children from Sexual Offences Act, 2012), Bhanupratappur, District North Bastar-Kanker, in Special Criminal Case (POCSO Act) No. 11 of 2018, whereby the appellant VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.04.28 18:23:08 +0530 has been convicted and sentenced as below:- 2 Conviction Sentence Under Section 363 of IPC R.I. for 01 year and fine of Rs. 500/-, in default of payment of fine further R.I. for one month. U/s. 6 of Protection of Children from Sexual Offences Act, 2012 R.I. for 10 years and fine of Rs. 500/-, in default of payment of fine further R.I. for one year. Both the sentences are directed to be run concurrently. 2. The case of the prosecution, in brief, is that the father of the victim (PW-1) lodged a written complaint (exhibit P-1) to the police on 29.04.2018 with the allegation that on 28.04.2018, when he along with his family had gone to a marriage reception party at PV-65 and was busy in dinner, her minor daughter was sleeping in the veranda, at about 11:30 in the night, his maternal aunt found his daughter crying and when they saw the victim, they found scratch mark on her face and she was very scared. After convinced her, when they asked about the incident, she disclosed that the appellant has committed rape upon her. Injuries were also seen on her private part and on the
Facts
next day, he lodged the report. The FIR (exhibit P-2) was registered against the appellant for the offence under Sections 363, 376(2)(f) of IPC and Sections 4 & 6 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’). The victim was sent for her medical examination to Civil Hospital, Pakhanjore, where PW- 15/Dr. Nisha Navratna examined her and gave her report (exhibit P- 6). While medically in examining the victim, the doctor has found her hymen ruptured, redness present, inflammation present, slight fresh 3 bleeding present, scratch marks were found present on both the cheeks and scratch marks were also found present around right knee. The doctor has opined that exact opinion cannot be given. It might be possible to done sexual intercourse or may not be. Confirmed by vaginal smear and FSL report. Two slides of her vaginal smear were prepared, sealed and handed over to police for FSL examination. The underwear of the victim has been seized by the police vide seizure memo (exhibit P-4). The spot map (exhibit P- 20) was prepared by the police. With respect to the age of the victim, the police have seized the school admission and discharge register from Saraswati Shishu Mandir PV-38 vide seizure memo (exhibit P-5) and after retaining its attested true copy of the school register (exhibit P-13C), the original register was returned back to the school. The appellant was arrested on 30.04.2018 and he too was sent for medical examination to Civil Hospital, Pakhanjore, where he was medically examined by PW-9/Dr. Piyush Singh, who gave his report (exhibit P-14). As per the medical report of the appellant, he was found able to establish penetrative sexual intercourse. The appellant was put to test identification parade, which was conducted by the Executive Magistrate, Pakhanjore (PW-3) and test identification memo (exhibit P-9) was prepared, in which the victim has duly identified the appellant. The vaginal smear slide of the victim was sent for its chemical examination to Regional FSL, Jagdalpur from where report (exhibit P-26) was received and according to the FSL report, the semen and sperms were found on the vaginal slide of the victim as well as semen slide of the appellant. The statement of the witnesses under Section 161 of CRPC and statement of the victim 4 3. 4. 5. 6. under Section 164 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed against the appellant before the learned trial Court for the offence under Sections 363, 376(2)(i), 376-A, 376-B of IPC, Sections 4 and 6 of POCSO Act. The learned trial Court has framed charge against the appellant for the offence under Sections 363, 376(2)(f) and 376-AB of IPC, Sections 3(b), 5 (m) and (n)/4 and 6 of POCSO Act. The appellant denied the charge and claimed trial. In order to prove the charge against the appellant, the prosecution has examined as many as 17 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded in which he denied the circumstances appearing against him, pleaded innocence and has submitted that he has been falsely implicated in the office. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of the judgment. Hence this appeal.
Legal Reasoning
attendant factors, we are of the opinion that none of 15 the grounds, on which the High Court has cleared the respondent, has any merit. 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 16 suspicion? The plea about lack of corroboration has no substance {See Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551}. Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.” 20. The evidence of the victim/PW-3 that the appellant took her towards jungle by alluring her that he will give her chocolate, which does amount to kidnap her as defined in Section 361 of IPC, which is punishable under Section 363 of IPC. 21. In the matter of “Satyapal v. State of Haryana” reported in 2009 (6) SCC 635, the Hon'ble Supreme Court has held in Para 18 that:- “18. In Modi's Medical Jurisprudence, 23rd edition, at pages 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 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. … * * * 17 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.” 22. In the matter of “State of Punjab v. Gurmit Singh” reported in 1996 (2) SCC 384, the Hon'ble Supreme Court in Para 21 has held that:- “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 women'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 18 the prosecutrix inspirers 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. 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 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 leveled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 19 24. In view of the foregoing reasons, I do not find any sufficient ground to interfere with the well-reasoned finding recorded by the learned trial Court holding conviction of the appellant for the alleged offence, and thus the appeal filed by the appellant fails and is hereby dismissed. 25. The appellant is reported to be in jail since 01.05.2018. He shall serve the entire sentence awarded by the learned trial Court. 26. 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. 27. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. ved Sd/- (Ravindra Kumar Agrawal) Judge
Arguments
Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradiction in the evidence of prosecution witnesses and the same cannot be made basis to convict the appellant in the offence in question. He would also submit that there is no sufficient evidence with respect to the age of the victim. The victim is a tutored witness, who cannot be believed for conviction of 5 the appellant. The evidence available on record suggests the false implication of the appellant and the victim has been made instrumental and therefore, in absence of any cogent and clinching evidence the appellant cannot be convicted and he is entitled for acquittal. 7. On the other hand, learned counsel for the State supporting the impugned judgment submits that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions, the evidence of prosecution witnesses is fully reliable and sufficient to hold guilty of the appellant in the offence in question. There is no reason for false implication of the appellant and no one can made instrumental of their minor daughter to settle their personal grudge. The victim has duly supported the prosecution’s case and is not a tutored witness. The injuries have been found on the body of the victim including the injuries on her private part. Further, in the FSL report, semen and sperms were found on the vaginal smear of the victim, which conclusively supports the prosecution’s case that she was subjected to rape by the appellant. The evidence of the victim has duly supported by her parents and other witnesses. The age of the victim has not been specifically challenged by the appellant, yet her age has been proved by the school record. Therefore, there are overwhelming evidence against the appellant, which has rightly been appreciated by the learned trial Court and his appeal is liable to be dismissed. 8. 9. 6 I have heard learned counsel for the parties and perused the record of the trial Court. Although the age of the victim has not been specifically challenged by the appellant, yet the prosecution has proved her age from the school record report (exhibit P-13C), in which sought to be proved by the teacher (PW-6) of the school, who stated in her evidence that the police has seized the school register with respect to the date of birth of the victim and after retaining its attested true copy, the original register was returned back to her. The original register brought by her today. As per the school register, the date of birth of the victim is 27.06.2012 and attested true copy of the school register is exhibit P- 13C. Although in cross-examination, she admitted that she is not the author of the school register and the basis on which her date of birth is recorded in the school register, yet the defence could not brought any material that the school register was prepared afterwards or is a forged document, in which the wrong date of birth of the victim has been recorded. From the evidence of PW-15/Dr. Nisha Navratna, who medically examined the victim, the defence himself has given suggestion that the victim was aged about 5-6 years at the time when she was produced for her medical examination. It is the admission of the defence that the victim was 5-6 years old child. Even from the evidence of the victim/PW-3 as well as her parents (PW-1 and PW- 2), her age has not been specifically challenged. In view of the above, it is found that the victim was 5-6 years old child at the time of incident. 7 10. So far as the offence of rape is concerned, the victim/PW-3 has stated in her evidence that on the date of incident, the appellant came to the place, where she was sleeping and inserted his finger on her private part and threatened her not to disclose the incident to anyone, otherwise he would beat her. Thereafter, he took her towards jungle by alluring that he will give her chocolate. The victim was declared hostile and she denied the cornel intercourse, but in cross- examination, she remained stuck in saying that the appellant inserted his finger on her private part. Although she admitted that her father has convinced her what is to be deposed before the Court, but when the Court asked the question from her, she stated that she suffered with the incident that the appellant inserted his finger on her private part. Although the victim did not disclose the carnal intercourse, but the other evidences available on record clearly suggests that she was subjected to rape by the appellant. Nothing could be extracted from the cross-examination of the victim so that her evidence could be disbelieved. 11. The rape has been defined in Section 375 of IPC, which reads as under:- 375. Rape.—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 8 (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 to 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 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, under the circumstances falling under any of the following seven descriptions:— First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. 9 Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent. Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora. Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.—A medical procedure or intervention shall not constitute rape. 10 Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 12. PW-1, who is the father of the victim has stated in his evidence that on the date of incident, he along with his family members had gone to a marriage function at PV-65. In the night, his maternal aunt called him, who saw the injuries on cheeks of his daughter and she was crying and very scared. When they asked from her, she disclosed that the appellant took her towards jungle by gagging her mouth and committed rape upon her. When she shouted for help, he gave scratch marks on her cheeks, took her back and laid her on the cot. He informed the incident to his family members and lodged the report to the police. In his detailed cross-examination, the defence could not illicit any material to disbelieve his evidence or to hold that the appellant has falsely been implicated in the case, rather his evidence is corroborative with the evidence of the victim. 13. PW-2 mother of the victim has also supported the prosecution’s case that on the date of incident, when they had gone to a marriage function, her daughter was being subjected to rape by the appellant. She was injured and crying. She disclosed about the incident to her that the appellant has committed rape upon her. Thereafter, they lodged the report to the police. In her cross-examination also nothing is there to disbelieve her evidence. There is no evidence that the appellant has falsely been implicated in the offence or the witnesses are not stated the true facts before the Court. 11 14. PW-4 is the maternal aunt of the father of the victim. Though she has not supported the prosecution’s case, but she stated that on the date of incident, the parents of the victim were in search of her. 15. PW-7 is the maternal uncle of the victim, who was being informed by the father of the victim about the incident. They had taken the victim to the Tahsildar office, where she identified the appellant and identification memo (exhibit P-9) was prepared. This witness has also remained firm in saying that the appellant was identified by the victim that he committed rape upon her. 16. PW-14 is the Executive Magistrate/Tahsildar who conducted the test identification parade and prepared the identification memo (exhibit P- 9). He duly supported the test identification parade and remained firm in his evidence and proved the same. 17. PW-15/Dr. Nisha Navratna, who medically examined the victim and proved the injuries found on her body and gave her report (exhibit P- 6). The injuries found on the body of the victim could not be diluted by the evidence of the doctor in her cross-examination. Although she admitted that there is no sign of any recent intercourse on the body of the victim, but her private part was having pain and redness. 18. The sterling quality of witness has been defined in the judgment passed by the Hon'ble Supreme Court in the matter of “Santosh Prasad @ Santosh Kumar v. State of Bihar” reported in 2020 (3) SCC 443 and in Para 5.4.2 of its judgment the Hon'ble Supreme Court has held that:- 12 “5.4.2 In the case of Rai Sandeep alias Deepu (supra), 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 13 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 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.” 19. In the matter of “State of Himanchal Pradesh v. Sanjay Kumar @ Sunny” reported in 2017 (2) SCC 51, the Hon'ble Supreme Court in Para 30 and 31 has held that:- “30. By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the 14 accused person has to be convicted. 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. In such a situation one has to take stock of the realities of life as well. Various studies show that in more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within than outside. Most of the time, acquaintance rapes, when the culprit is a family member, are not even reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting social stigma. Another deterring factor which many times prevent such victims or their families to lodge a complaint is that they find whole process of criminal justice system extremely intimidating coupled with absence of victim protection mechanism. Therefore, time is ripe to bring about significant reforms in the criminal justice system as well. Equally, there is also a dire need to have a survivor centric approach towards victims of sexual violence, particularly, the children, keeping in view the traumatic long lasting effects on such victims. 31. After thorough analysis of all relevant and