Chattisgarh High Court
Santosh Sahu vs State Of Chhattisgarh on 24 November, 2022
1
Cr.A. No. 221 of 2021
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 17/11/2022
Judgment Delivered on : 24/11/2022
Criminal Appeal No. 221 of 2021
Santosh Sahu S/o Ram Singh Sahu, aged about 28 years, caste
Sahu, R/o. Dindori, Choki Chilfi, Thana Lormi, District Mungeli,
Chhattisgarh.
---- Appellant
Versus
State of Chhattisgarh through District Magistrate, Mungeli,
Chhattisgarh.
---- Respondent
For Appellant : Smt. Indira Tripathi, Advocate.
For Respondent/ State : Shri Afroz Khan, P.L.
For Complainant/ Objector : Shri Ajay Chandra, Advocate.
DB: Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
CAV JUDGMENT
Rakesh Mohan Pandey, J.
1. This criminal appeal filed by the appellant/accused herein under
Section 374 (2) of Cr.P.C. is directed against the impugned judgment
of conviction and order of sentence dated 01.02.2021 passed by the
Court of learned Special Judge, POCSO Act (F.T.C.) Mungeli, District
Mungeli, Chhattisgarh in Sessions Trial No. 51/2017, whereby the
appellant has been convicted as under:-
Conviction Sentence
Under Section 376 of the R.I. for 10 years and fine of
Indian Penal Code. Rs.500/- and in default of
payment of fine, additional
R.I. for 1 month.
Under Section 4 of the R.I. for 20 years and fine of
Cr.A. No. 221 of 2021
Protection of Children Rs.3,000/- and in default of
from Sexual Offences payment of fine, additional
Act, 2012 R.I. for 4 months.
With a direction to run both
the sentences concurrently
2. The case of the prosecution in nutshell is that on 05.09.2017 at about
8:00 am, the victim who was aged about 7 years, had gone to school
and returned back to home at about 11:00 am. The mother of the
victim had gone to fields, father had gone to some other village on
account of some work, sister - Munni had gone to her work as she was
working as labourer, another sister was in school, and brother - Bharat
had gone to graze the cattle. The grandfather of the victim suffered
paralytic attack, therefore, he was unable to walk and speak but he
was present in the courtyard of the house. At 11:30 am, the appellant
came to house of the Victim (PW-1) and took her in a room and
thereafter, he undressed her and also put off his trousers and inserted
his penis in the private part of the victim. The victim on account of
pain, made hue and cry then the appellant left her. Thereafter, the
appellant washed his mouth by using Gudakhu (paste of tobacco and
jaggery). Thereafter, the victim joined her brother - Bharat, who was
grazing cattle and when her mother Uma Bai (PW-2) returned back
from the fields, she narrated the incident to her. Her father
Dharmendra Kumar Nishad (PW-3) returned from other village in the
evening and the entire matter was brought to his knowledge and
thereafter, the matter was informed to the police outpost - Chilfi where
Crime No. 0/ 2017 (Ex.P/2) was registered for the offence punishable
under Section 376 of the Indian Penal Code and Section 4 of the
Cr.A. No. 221 of 2021
Protection of Children from Sexual Offences Act, 2012 (for short
'POCSO Act') and thereafter, the numbered FIR was registered by the
Police Station - Lormi for the offence punishable under Section 376 of
the IPC and Section 4 of the POCSO Act vide Ex.P/12. Consent of
father of the victim was taken for her medical examination vide Ex.P/3
and she was medically examined by Dr. Pramila Dau (PW-6) on
05.09.2017 vide Ex.P/11. The vaginal slide of the private part of the
victim was taken and the undergarments were seized by P.R. Jagat
(PW-10) vide Ex. P/13. The statement of the victim under Section 164
of the Cr.P.C. was recorded vide Ex.P/1 on 07.09.2017. The appellant
was medically examined by Dr. Rupesh Sahu (PW-15) on 06.09.2017
vide Ex.P/23. The spot map was prepared by Patwari - Manisha
Tandon (PW-7) vide Ex.P/9. The sealed slide preserved by the doctor,
undergarments of the victim and undergarments of the appellant were
sent for FSL vide Ex. P/16 by Vishnu Prasad Yadav (PW-11). The
school admission register of Saraswati Shishu Mandir, Dindori, where
the victim was studying, was seized by Vishnu Prasad Yadav (PW-11)
vide Ex.P/19 on 15.09.2017 where date of birth of the victim is
recorded as 01.01.2012 and she was admitted in the school on
05.07.2016. After completion of investigation, the police filed the
charge-sheet on 25.11.2017. Learned trial Court framed charges for
the offence punishable under Section 376 of the IPC and Section 4 of
the POCSO Act. The appellant/accused abjured the guilt and took the
plea that he has not committed the offence and he has falsely been
implicated in the case by the prosecution.
3. The prosecution, in order to prove its case, examined as many as 17
Cr.A. No. 221 of 2021
witnesses in support of the case and exhibited 23 documents. The
appellant has not examined any defence witness. The statement of the
appellant/accused under Section 313 of Cr.P.C. was recorded where
he took the plea of false implication.
4. The learned trial Court after appreciating the oral and documentary
evidence available on record convicted the appellant for offences
punishable under Section 376 of IPC and Section 4 of the POCSO Act
and sentenced him as mentioned herein above, against which this
appeal has been preferred by the appellant questioning the impugned
judgment of conviction and order of sentence.
5. Smt. Indira Tripathi, learned counsel for the appellant would submit
that:
(I) The prosecution has not proved the fact of
penetration and same is evident from the medical report
as well as from the evidence of Dr. Pramila Dau (PW-6)
where no injury has been found on the private parts of
the victim.
(II) As per deposition of Dharmendra Singh Maravi
(PW-12) who is Principal of Saraswati Shishu Mandir,
Dindori, the timing of the school was 10:00 am to 4:00
pm whereas, according to victim, the incident had taken
place at 11:00 am, which is contrary to the evidence.
(III) The allegation made by the victim is not
corroborated by other evidence.
(IV) The victim was of tender age whereas, the
appellant was matured and grown up person and in
case of penetration, there would have been injuries on
the private parts of the victim.
Cr.A. No. 221 of 2021
Learned counsel for the appellant placed reliance upon the
judgments of Hon'ble Supreme Court in the case of Santosh Prasad
alias Santosh Kumar vs. State of Bihar, reported in (2020) 3 SCC
443, State of Karnataka vs. F. Nataraj, reported in (2015) 16 SCC
752 and Raju and Others vs. State of Madhya Pradesh, reported in
(2008) 15 SCC 133 and one case of High Court of Calcutta in Subrata
Pradhan vs. State of West Bengal & Anr & Prasanta Das and Anr.
vs. State of West Bengal & Anr. in Criminal Appeal No. 269 of 2019
and prays for setting aside the conviction of the appellant for the
offences stated above.
6. Per contra, learned State counsel submits that:
(I) the conviction can be recorded on the basis of sole testimony
of the victim.
(II) no corroboration is required unless there are compelling
reasons which necessitates the Court to insist for corroboration
of the statement of the victim.
The victim was aged about 7 years at the time of incident and she
had no reason to falsely implicate the appellant. The case would
clearly fall under the definition of Sections 3(a) and 3(c) of the
POCSO Act.
7. We have heard learned counsel for the parties and perused the record
with utmost circumspection.
8. The learned trial Court has decided the case taking the age of the
victim 8 years, whereas the date of birth of the victim is 01.01.2012
and thus, at the time of incident, she was aged about 5 years, 8
months. Looking to the above discrepancies in the age, we have
Cr.A. No. 221 of 2021
mentioned the age of the victim about 7 years at the time of incident.
9. In this case, the appellant has been convicted for the offence
punishable under Section 376 of IPC and Section 4 of the POCSO Act.
Section 376 of the IPC is reproduced herein below:
'[376. Punishment for rape.--
(1) Whoever, except in the cases provided for by sub-
section (2), commits rape, shall be punished with rigorous
imprisonment of either description for a term which shall
not be less than seven years, but which may extend to
imprisonment for life, and shall also be liable to fine.'
10. The appellant has also been convicted for offence of penetrative
sexual assault which is defined in Section 3 of the POCSO Act, and
punishment is provided in Section 4 of the POCSO Act.
11. Sections 3 & 4 of the POCSO Act are reproduced herein below:
'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, anus,
urethra of the child or makes the child to do so to such
Cr.A. No. 221 of 2021
person or any other person.
4 - Punishment for penetrative sexual assault.―
Whoever commits penetrative sexual assault shall be
punished with imprisonment of either description for a
term which shall not be less than seven years but which
may extend to imprisonment for life, and shall also be
liable to fine.'
From bare reading of Section 3 of the POCSO Act, it is crystal
clear that if a person penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus or inserts any object to any extent into
the above stated parts of body or manipulates or applies his mouth,
the said person is said to have committed penetrative sexual assault.
The punishment for penetrative sexual assault shall be not less than 7
years but may extent to imprisonment for life along with fine.
12. Now coming to the facts of the present case. In the instant case, the
age of the victim was 7 years at the time of incident; she was a student
of class-II. On the date of incident, no one was present in her house
except his grandfather, who was unable to walk and speak as he was
paralyzed. The appellant is resident of same village, who came to the
house of complainant - Dharmendra Kumar Nishad (PW-3) and took
the victim in a lonely room where he undressed her and put-off his
trouser. Thereafter, he penetrated his penis in urethra of the victim and
when the victim made hue and cry, he left her, came out from room and
started using Gudakhu. The victim has informed entire episode to her
mother, father and thereafter, FIR was lodged by father of the victim
Dharmendra Kumar Nishad (PW-3) on 05.09.2017 at outpost Chilfi
which was registered as Crime No. 0 of 2017 and later on numbered
Cr.A. No. 221 of 2021
FIR was registered. The victim has stated all the facts in chronological
order in her evidence though at the time of incident, her age was about
7 years. In cross-examination, she remained intact and she has denied
the fact that timing of her school was till 12:00 noon, but she has
specifically stated that it was up to 11:00 am. She has specifically
deposed the date and day of the incident. The mother of the victim,
Uma Bai (PW-2) has supported the case of the prosecution and she
has described the incident in the same manner as it was narrated to her
by her daughter (PW-1). In cross-examination, she has denied the fact
that her husband had to pay the loan amount to the appellant on
account of purchase of buffalo, therefore, a false case has been
registered. Dharmendra Kumar Nishad (PW-3), father of the victim has
categorically stated the incident was narrated to him by her daughter.
He has denied most of the suggestions given by the appellant's counsel
and in paragraph 13 he has specifically denied that a loan was taken
from the appellant. Dhan Singh (PW-4), who is villager and an
independent witness, has deposed that he was called by father of
victim and the matter of rape of victim was narrated to him where many
persons were present.
13. Navneet Kaur (PW-8), Deputy Superintendent of Police has registered
FIR (Ex.P/2). P.R. Jagat (PW-10), Assistant Sub-Inspector and Vishnu
Prasad Yadav (PW-11), Investigating Officer have conducted the
investigation including seizure of the school admission register where
the victim was studying vide seizure memo (Ex.P/19) and an
application was also given in this regard to the Headmaster of the
Saraswati Shishu Mandir, Dindori vide Ex.P/20. Dharmendra Singh
Maravi (PW-12), Teacher has proved the school admission register of
Cr.A. No. 221 of 2021
Saraswati Shishu Mandir vide Ex.P/22 and has stated that the name of
the victim appears at Sr. No. 707 and her date of birth is 01.01.2012. In
cross-examination, he has stated that timing of school where the victim
was prosecuting her studies was 10:00 am to 4:00 pm and when the
student does not go to school he/she moves an application for leave.
He has further stated in paragraph 4 of the cross-examination that the
victim and her brother are students of his school. Baldau Nishad
(PW-5), who is grandfather of the victim, was put for examination in the
presence of expert Dr. Pradeep Sharma (PW-14), who has identified
the appellant by gesture but he could not respond to other queries
made by the expert. Dr. Rupesh Sahu (PW-15) had examined the
appellant and found him capable to perform sexual intercourse.
14. The most important witness is Dr. Pramila Dau (PW-6) on whose
evidence counsel for the appellant is harping and according to this
witness, on 05.09.2017, the victim was brought for medical
examination at about 11:30 pm, and she has categorically stated that
there was no internal injury over her private parts. She has stated that
according to the medical examination report (Ex/P/7) there was no
evidence of sexual intercourse. She has further stated that two slides
were prepared, undergarment of the victim was sealed and packed and
no stain was found over it and the said articles were sent for chemical
examination.
15. The submission made on behalf of the appellant is that there was no
injury, no penetration at all and hymen of the victim was found intact
and thus, no offence of rape is made out and even there was no
attempt to commit rape and thus, the appellant has falsely been
implicated in the case.
Cr.A. No. 221 of 2021
16. The first case cited by learned counsel for the appellant Santosh
Prasad alias Santosh Kumar vs. State of Bihar (supra), is a case
where rape was alleged against a married lady and material
contradictions were present in her deposition. Further, neither any
independent witness, nor the medical evidence supported the case of
the prosecution. Even FSL report did not support the prosecution's
version. There was also delay in lodging the FIR and enmity was
present between the parties with respect to a piece of land. Therefore,
the Hon'ble Supreme Court acquitted the appellant therein, however, in
the instant case the deposition of the prosecutrix is of sterling quality,
and other witnesses have also supported the case of the prosecution,
therefore above stated case would not apply to the present case.
17. Raju and Others vs. State of Madhya Pradesh (supra), was a case
of Sections 376 and 376(2)(g) of the IPC and in that case the
identification parade was found farce. In FIR the prosecutrix had
named only four persons and the underwear of some of the accused
persons was produced by themselves and the victim was major
whereas, in the present case, there are no such discrepancies in the
investigation and the victim was aged about 7 years at the time of
incident.
18. The next case, cited by learned counsel for the appellant is State of
Karnataka vs. F. Nataraj (supra). In this case the age of the victim
was about 14 years and the allegation against the accused was that
he committed sexual intercourse with the girl on several occasions
within a period of 15-20 days and no signs of recent sexual intercourse
was found by the medical examiner, therefore, the Hon'ble Supreme
Court extended benefit of doubt to the accused whereas, in the
Cr.A. No. 221 of 2021
present case, the medical evidence is not available but the age of the
victim was 7 years at the time of incident, she has deposed in
categorical terms and there is no contradiction or omission present in
her testimony.
19. The Hon'ble Supreme Court in the case of State of Himachal
Pradesh vs. Manga Singh, reported in (2019) 16 SCC 759 where a
9 year old victim was sexually exploited and in absence of medical
evidence the accused was acquitted by the High Court, where the
Hon'ble Supreme Court held that no corroboration is required unless
there are compelling reasons which necessitate the courts to insist for
corroboration of the statement of the victim. Minor contradictions or
small discrepancies should not be a ground for throwing the evidence
of the prosecutrix, even medical evidence may not be available. In
such cases, solitary testimony of the prosecutrix would be sufficient to
base the conviction, if it inspires the confidence of the Court. The
relevant paragraphs No. 10, 11, 12, 13, 14 and 20 are reproduced
herein below:
'10. The conviction can be sustained on the sole
testimony of the prosecutrix, if it inspires confidence. The
conviction can be based solely on the solitary evidence
of the prosecutrix and no corroboration be required
unless there are compelling reasons which necessitate
the courts to insist for corroboration of her statement.
Corroboration of the testimony of the prosecutrix is not a
requirement of law; but a guidance of prudence under
the given facts and circumstances. Minor contractions or
small discrepancies should not be a ground for throwing
the evidence of the prosecutrix.
11. It is well settled by a catena of decisions of the
Supreme Court that corroboration is not a sine qua non
Cr.A. No. 221 of 2021
for conviction in a rape case. If the evidence of the victim
does not suffer from any basic infirmity and the
"probabilities factor" does not render it unworthy of
credence. As a general rule, there is no reason to insist
on corroboration except from medical evidence.
However, having regard to the circumstances of the
case, medical evidence may not be available. In such
cases, solitary testimony of the prosecutrix would be
sufficient to base the conviction, if it inspires the
confidence of the court.
12. In State of Punjab v. Gurmit Singh and Others -
(1996) 2 SCC 384, it was held as under:-
"8. The courts must, while evaluating evidence,
remain alive to the fact that in a case of rape, no
self-respecting woman would come forward in a
court just to make a humiliating statement
against her honour such as is involved in the
commission of rape on her. In cases involving
sexual molestation, supposed considerations
which have no material effect on the veracity of
the prosecution case or even discrepancies in
the statement of the prosecutrix should not,
unless the discrepancies are such which are of
fatal nature, be allowed to throw out an
otherwise reliable prosecution case. The
inherent bashfulness of the females and the
tendency to conceal outrage of sexual
aggression are factors which the courts should
not overlook. The testimony of the victim in such
cases 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 a
victim of sexual assault alone to convict an
accused where her testimony inspires
confidence and is found to be reliable. Seeking
Cr.A. No. 221 of 2021
corroboration of her statement before relying
upon the same, as a rule, in such cases
amounts to adding insult to injury. Why should
the evidence of a girl or a woman who complains
of rape or sexual molestation, be viewed with
doubt, disbelief or suspicion?". (emphasis
supplied)
13. The prosecutrix was aged only nine years, she had
no reason to falsely implicate her cousin. Since the
prosecutrix has been compelled to face the ordeal of
sleeping with the respondent-accused everyday night,
On 04.03.2010 she refused to go the house of her aunt.
Considering the evidence of PW-4, a girl of tender
years, corroboration from an independent source of the
evidence of the prosecutrix is not required. The
evidence of the prosecutrix clearly established that the
accused was committing rape on her by penetration.
14. The trial court, which had the opportunity of
observing and hearing the prosecutrix (PW-4), recorded
a finding of fact that the evidence of prosecutrix (PW-4)
is convincing and inspires the confidence of the court.
When the trial court which had the opportunity of seeing
and hearing the witness has held that the evidence of
the prosecutrix (PW-4) inspires confidence of the court,
in our considered view, in the absence of any convincing
reason, the High Court ought not to have interfered with
such finding of fact.
20. In the present case, the prosecutrix (PW-4), being a
young girl aged about nine years, had no reason to
falsely implicate the respondent-accused. The testimony
of the prosecutrix (PW-4) must have been appreciated
in the light of the background of the case; more so, the
prosecutrix (PW-4) was reluctant to go back to the
house of her aunt and complained the act of sexual
intercourse committed by the respondent-accused to
Cr.A. No. 221 of 2021
her teachers, Pooja Mahajan (PW-1) and Ritubala
(PW-2). The High Court has not appreciated the
evidence of the prosecutrix (PW-4) in the light of the
well-settled principles and erred in reversing the
conviction of the respondent-accused to the acquittal.
The impugned judgment of the High Court is not
sustainable and is liable to be set aside. Since at the
time of incident the victim was at her tender age, we do
not find any reason to show sympathy towards the
respondent-accused.'
20. In above judgment at para 12 their lordships of the Hon'ble Supreme
Court have specifically observed that "the courts must, while evaluating
evidence, remain alive to the fact that in a case of rape, no self-
respecting woman would come forward in a court just to make a
humiliating statement against her honour such as is involved in the
commission of rape on her."
21. In light of evaluation of the facts of the present case and the judgment
passed by the Hon'ble Supreme Court in the case of State of Himachal
Pradesh vs. Manga Singh (supra), it is quite vivid that in absence of
medical evidence and on the basis of solitary testimony of the victim,
conviction can be recorded. The victim was aged about 7 years which
has not been disputed by the defence on the basis of school admission
register, there is no document placed on record by the appellant to hold
that the timing of school was 10 am to 4 pm, the prosecutrix who was a
child of 7 years had no reason to falsely implicate the appellant herein,
and further considering the evidence of her father and mother who have
narrated the entire story before the trial Court that the appellant has
penetrated his penis in urethra of the victim, therefore, the offence
committed by the appellant squarely falls within the definition of Section
Cr.A. No. 221 of 2021
3 of the POCSO Act.
22. Consequently, we are of the considered opinion that no further
interference is required with regard to the conviction and sentence of the
appellant herein. In the result, the appeal sans merit and is, accordingly,
dismissed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Nimmi
