[Cites 20, Cited by 0]
Chattisgarh High Court
Konda @ Hemlal Gayakwad vs State Of Chhattisgarh on 10 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:16588-DB
AFR
Digitally signed by
INDRAJEET INDRAJEET SAHU HIGH COURT OF CHHATTISGARH AT BILASPUR
SAHU Date: 2026.04.17
19:00:59 +0530
CRA No. 1312 of 2023
1 - Konda @ Hemlal Gayakwad S/o Milan Gayakwad Aged About 35 Years
R/o Village Jevri, Police Station Bemetara, District : Bemetara, Chhattisgarh.
... Appellant
versus
1 - State of Chhattisgarh Through Police Station, Bemetara, District :
Bemetara, Chhattisgarh.
... Respondent(s)
(Cause-title taken from Case Information System)
For Appellant : Shri Rohit Sharma, Advocate.
For State : Shri Nitansh Jaiswal, Dy. Govt. Advocate.
Hon'ble Shri Justice Ramesh Sinha, CJ
Hon'ble Shri Justice Ravindra Kumar Agrawal, J
Judgment on Board
10.04.2026
Per, Ramesh Sinha, CJ.
1 Though the matter was listed for orders on application for suspension
of sentence and grant of bail to the appellant, however, with the
consent of the parties, the matter is heard finally.
2 The present appeal has been filed by the appellant against the
impugned judgment of conviction and order of sentence dated
22.03.2023 passed by the Additional Sessions Judge, FTSC (POCSO
Act) Bemetara, in Sessions Case (POCSO) No.29/2022 whereby the
appellant has been convicted for the offence under Sections 6 & 10 of
POCSO Act and sentenced to undergo RI for Life Imprisonment and
fine of Rs.2000/- and RI for 5 years with fine of Rs.1000/- respectively.
3 Brief facts of the case are that, on 17.05.2022 at about 6 PM the
complainant, PW-1, lodged a written complaint to the police that victim
is daughter of his younger brother who had gone to Raipur to earn
livelihood leaving the minor victim with him. On the date of incident at
about 10 AM the victim had gone to her neighbors house and when
she did not return back for a considerable time gap, his sister went to
neighbours house and took the victim with her and informed the
incident that she saw the incident that the appellant was wearing his
underwear and when she returned to her home, the victim disclosed
her that appellant has committed rape upon her. On the basis of
written complaint Ex.P/1, FIR Ex.P/2 was registered against the
appellant for the offence under Sections 376(AB) IPC and Sections
4&6 of POCSO Act. The victim was sent for her medical examination to
District Hospital Bemetara where she was medically examined by PW-
13, Dr. Puja Lovely, who gave her MLC report Ex.P/42. While medically
examining her, no external injuries were found on the body of victim,
however, her hymen was found ruptured. Two slides of her vaginal
swab were prepared, sealed and handed over to the police for its
chemical examination. Spot map Ex.P/3 was prepared by the police
whereas Ex.P/4 by the Patwari. An underwear was seized from victim
vide seizure memo Ex.P/6. With respect to age and date of birth victim,
the police seized birth certificate of victim vide Ex.P/7. The said birth
certificate is Article-A, according to which, her date of birth is
12.04.2015. School register was also seized vide Ex.P/9 and after
retaining its attested true copy Ex.P/17-C, the original was returned
back to the school. The appellant was arrested on 19.05.2022 and his
memorandum statement was recorded vide Ex.P/11. Since the
appellant was found to be deaf and dumb, his memorandum statement
was recorded through Special Sign Language Expert and Panchnama
Ex.P/11 was prepared in presence of witnesses. The appellant was
also sent for his medical examination to District Hospital Bemetara
where he was medically examined by Doctor P.P. Pradhan, PW-7, who
found the appellant capable to perform sexual intercourse and gave
report Ex.P/20. Underwear of the appellant was also seized vide
Ex.P/8. The underwear of victim, her vaginal slides and underwear of
appellant were sent for its chemical examination to regional FSL Raipur
from were report Ex.P/39 was received, according to which, semen
and sperms were found on the underwear of appellant, however, no
semen and sperms were found on the vaginal slides and underwear of
the victim.
4 The statement under Section 161 CrPC of witnesses were recorded.
The statement of victim under Section 164 CrPC was recorded. After
completion of usual investigation, charge sheet was filed against the
appellant for the offence under Sections 376 (AB) IPC and Sections 4,6
and 10 of POCSO Act before the trial court. The trial Court has framed
charge against the appellant for the offence under Sections 376(AB)
IPC and Section 5(m)/6 and 9(m)/10 of POCSO Act. The appellant
abjured his guilt and claimed trial.
5 In order to establish the charge against the appellant, the prosecution
has examined as many as 13 witnesses. Statement under Section 313
CrPC of the appellant has also been recorded in which he denied the
circumstances appears against him, pleaded innocence and have
submitted that he is innocent and falsely implicated in the offence.
Once defence witness DW-1 has been examined by the appellant in his
defence.
6 After appreciation of oral as well as documentary evidence led by the
prosecution, the trial Court has convicted the appellant and sentenced
him as mentioned in the opening para of this judgment. Hence this
appeal.
7 Learned counsel 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 prosecution witnesses
which cannot be made basis to convict him in the offence in question.
Though hymen of victim was ruptured, but there was no other injuries.
Rupture of hymen could have been cause by some other reasons i.e.
while playing or cycling. DNA report Ex.P/39 does not support the
prosecution case and it was found negative. The appellant has been
implicated in the offence due to routine quarrel between the children
while they were playing. From the evidence of parents of victim, the
fact came on record that the appellant has been falsely implicated in
the offence. The appellant is deaf and dumb and illiterate and unable to
understand the contents of memorandum which has been recorded
with the help of Sign Language Expert. The prosecution evidence
suffers from material inconsistency and the appellant is entitled for
benefit of doubt and he may be acquitted.
8 On the other hand, learned counsel for the State opposes the
submissions made by the counsel for the appellant and would submit
that prosecution has proved its case beyond reasonable doubt, but for
minor omissions or contradictions, the evidence of prosecution
witnesses are sufficient and reliable to hold conviction of the appellant
for the alleged offence. The victim was sexually exploited by the
appellant for which he has rightly been convicted. PW-3 has witnessed
the incident when she went to the house of appellant to bring back the
victim. The victim PW-2 also duly supported the prosecution case that
she was subjected to rape by the appellant. Absence of injury on the
body of victim does not absolve the appellant from his liability or does
not make the prosecution case doubtful as hymen of victim was
ruptured and as per evidence of doctor she was feeling pain and not
cooperated in her medical examination. Although the DNA Test report
was found negative and in the FSL report also no sperms and semen
was found on the vaginal swab of victim, but the medical and scientific
evidence are only an opinionative. The age of victim is also proved by
her birth certificate and there is no dispute that she was aged about 7
years on the date of incident. There are sufficient and overwhelming
evidence against the appellant that he committed the offence and the
trial court has rightly convicted the appellant which needs no
interference.
9 We have heard the counsel for the parties and perused the records of
the trial court.
10 In the present case the age of victim has been proved by the
prosecution by birth certificate Article-A. The said birth certificate is an
statutory document issued by the Registrar, Birth and Deaths, District
Bemetara. The said birth certificate is admissible under Section 35 of
the Indian Evidence Act, 1872 and it is an extract of official record kept
in normal course of their official duty. According to birth certificate
Article-A, the date of birth of victim is 12.04.2015.
11 The date of birth of victim is further supported by document Ex.P/17-C.
According to school register, the date of birth of victim is recorded as
12.04.2015 which duly corroborates the birth certificate Article-A. The
said school register is sought to be proved by PW-3 who is
Headmistress of school. She is the author of the school register and
stated that police has seized the school register with respect to date of
birth of victim vide seizure memo Ex.P/9 and after retaining its attested
true copy, the original register was returned back which she brought
today. According to school register, her date of birth is 12.04.2015. She
got her admitted in Class-1 in the school and school register is Ex.P/17.
She denied that date of birth of victim has not been entered by her. She
voluntarily stated that on the basis of her birth certificate, she made
entry in the school record of date of birth of victim. Further, from the
evidence of elder father of victim PW-1, the mother of victim PW-4,
maternal aunt of victim PW-8, grandmother of victim PW-11 and also
from the evidence of father of victim PW-5 the age of victim that she
was aged about 7 years at the time of incident have been duly proved
which corroborates with documentary evidence of her birth certificate
Article-A and School Register Ex.P/17-C. The findings recorded by the
trial court does not suffer from any perversity or infirmity and we also
affirm the same.
12 So far as involvement of appellant in the offence in question is
concerned, we again examine the evidence produced by the
prosecution.
13 PW-2 is the victim who is a 7 years old minor girl. After primary
examination of her Eye Q, the trial court recorded her evidence in
question answer form. She deposed in her evidence that she knew the
appellant as he resides nearby her house. She had gone to the house
of appellant for bringing cooked vegetable and when she was about to
return, the appellant dragged her inside his house and after removing
her underwear, he committed rape upon her. When she started
shouting, he gagged her mouth and thereafter she heard the noise of
her maternal aunt. She wore her underwear and came out from the
room and informed the incident to her maternal aunt. She came back to
her house along with her and informed the incident to her grandmother
and thereafter her elder father lodged the report. Her statement was
also recorded before the court which is Ex.P/13.
In cross examination, she denied that she was playing along with
other children of vicinity and at that time the mother of appellant was
also there in the house. She stated that at the time of incident, his
mother went to fetch water. She firmly states that the appellant has
committed rape upon her. She also firmly denied that she is a tutored
witness and deposed on the instance of her elder father and maternal
aunt. Such quality of evidence which she gave before the court, put her
in the quality of sterling witness as she suffered the incident of rape
and firmly deposed against the appellant. We find no infirmity in her
evidence with respect to allegation of rape levelled by her against the
appellant.
14 In Ganesan Vs. State, (2020) 10 SCC 573, the Supreme Court
observed and held that that there can be a conviction on the sole
testimony of the victim/prosecutrix when the deposition of the
prosecutrix is found to be trustworthy, unblemished, credible and her
evidence is of sterling quality.
15 In State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575, it
was observed and held that as a general rule, if credible, conviction of
accused can be based on sole testimony, without corroboration. It was
further observed and held that sole testimony of prosecutrix should not
be doubted by court merely on basis of assumptions and surmises.
16 In the case of Sham Singh v. State of Haryana, (2018) 18 SCC 34,
the Supreme Court observed that testimony of the victim is vital and
unless there are compelling reasons which necessitate looking for
corroboration of her statement, the courts should find no difficulty to act
on the testimony of the victim of sexual assault alone to convict an
accused where her testimony inspires confidence and is found to be
reliable. It was further observed that seeking corroboration of her
statement before relying upon the same, as a rule, in such cases
amounts to adding insult to injury.
17 PW-8 is the maternal aunt of victim who saw the incident. She has
stated in her evidence that when the victim did not return for a
considerable time who had gone to appellant's house, she too went to
the house of appellant to call her back. She saw that appellant
removed the underwear of her niece and laid upon her on cot. She took
the victim back with her and thereafter the victim informed that
appellant committed rape upon her. Thereafter, she along with her
brother went to police station for lodging report.
In cross exaggeration, though the suggestion was given by the
defence that she has not disclosed in her police statement Ex.P/23 that
when she had gone to the house of appellant, the appellant was laid
upon the victim, but from perusal of police statement of this witness
Ex.P/23, though it is not in the same fashion, but the substance is that
the appellant removed the underwear of the victim and committed rape
upon her and victim has also disclosed about the incident to her. Her
evidence duly corroborates the evidence of victim who suffered the
incident of rape by the appellant.
18 From the evidence of this witness, the defence tried to extract that
there was quarrel between the families of appellant and victim, but that
itself is not sufficient to rope the appellant in the alleged offence. She
too have stated that when she went to the house of appellant, the door
of his house was opened and when she was returning from the house
of appellant, the mother of appellant was coming back after fetching
water. Her evidence also inspires confidence upon the court with
respect to alleged offence.
19 PW-1, the elder father of victim have stated in his evidence that his
younger brother had gone to earn his livelihood at Raipur leaving his
daughter (victim) with him. On the date of incident, when he came back
to the house for lunch, his sister informed him about the incident and
then he lodged written report with the police. In cross examination,
though he admits that he has not seen the incident, but he proved the
written report lodged by him against the appellant. Though he also
admits that on the same day the mother of appellant also had gone to
police station Bemetara for lodging report against him with the
allegation that they went to her house for committing Marpeet with the
appellant, but whether the said incident was after or before the present
incident, have not been put for its verification.
20 PW-4, mother of victim, have stated in her evidence that she was
informed over telephone that her daughter suffered with the incident of
rape by the appellant. When they came back to village in the next
morning, the elder father of victim had already lodged report to the
police. Since she was not present on spot and also not lodged report,
her evidence does not have any significance.
21 Likewise, the evidence of her father PW-5 also does not have much
significance as he was also not present in the village and he came
subsequently.
22 PW-11, grandmother of victim, have stated in her evidence that on the
date of incident her granddaughter went to the house of appellant from
where she came back crying. When she asked, she informed about the
incident that appellant committed rape upon her. When the maternal
aunt of victim had gone to the house of appellant, she saw the incident
and when her son came in lunch, he was informed about the incident
and then report was lodged. She admits in her cross examination that
their houses are adjacent and quarrel took place between the family
members of both the persons. It further transpires from the evidence of
this witness that when the elder father of victim came to know about the
incident, he went to appellant's house and scolded him. It does not
appear that elder father of victim had gone to the house of appellant
and then a false report has been lodged by him. She too have admitted
that the appellant is deaf and dumb person.
23 PW-9, is the expert in sign language, who stated that on the request of
City Kotwali police, she interrogated the appellant who disclosed in
sign that he committed rape upon the victim, which she recorded in the
memorandum statement Ex.P/10. Though the memorandum statement
of appellant was recorded with the help of this witness, but as it is a
settled law that the inculpatory statement made in the memorandum is
not admissible in evidence, her evidence does not have much
significance.
24 The evidence of doctor PW-13 is relevant as she medically examined
the victim. Though she could not find any external injuries on her body,
but found her hymen ruptured. In her cross examination, she stated in
paragraph 8 that she examined the victim after 12 hours, therefore, she
could not find bleeding on her private part. She voluntarily stated that
victim was not cooperating in medical examination as she was feeling
heavy pain on her private part and she was crying, which clearly
demonstrate that victim suffered offence of rape by which her hymen
was ruptured.
25 In case of Satyapal Vs. State of Haryana, 2009 (6)SCC 635, the
Supreme Court has observed that it is not necessary that there has to
be some injury on the genitalia or any other part of the victim's body. It
has been held in para 18 as that :
"18. In Modi's Medical Jurisprudence, twenty-third 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.
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."
26 Way back in the year, 1988, the Supreme Court in case of Appabhai
and Another Vs. State of Gujrat, 1988 Suppl.SCC 241, has held in
paragraph 13 as under:
"13........The Court while appreciating the evidence must not attach
undue importance to minor discrepancies. The discrepancies which do
not shake the basic version of the prosecution case may be discarded.
The discrepancies which are due to normal errors of perception or
observation should not be given importance. The errors due to lapse of
memory may be given due allowance. The Court by calling into aid its
vast experience of men and matters in different cases must evaluate
the entire material on record by excluding the exaggerated version
given by any witness. When a doubt arises in respect of certain facts
alleged by such witness, the proper course is to ignore that fact only
unless it goes into the root of the matter so as to demolish the entire
prosecution story. The witnesses nowadays go on adding
embellishments to their version perhaps for the fear of their testimony
being rejected by the court. The courts, however, should not disbelieve
the evidence of such witnesses altogether if they are otherwise
trustworthy. Jagamohan Reddy, J., speaking for this Court in Sohrab
and Anr. v. the State of Madhya Pradesh 1972 Crl. L.J. 1302 at 1396
observed :
This Court has held that falsus in no falsus in omnibus is not a
found rule for the reason that hardly one comes across a witness
whose evidence does not contain a grain of untruth or at any rate
exaggeration, embroideries or embellishments. In most cases,
the witnesses when asked about details venture to give some
answer, not necessarily true or relevant for fear that their
evidence may not be accepted in respect of the main incident
which they have witnessed but that is not to say that their
evidence as to the salient features of the case after cautious
scrutiny cannot be considered."
27 In case of State of Himachal Pradesh Vs. Sanjay Kumar @ Sunny,
2017(2)SCC 51, it has been settled by the Supreme Court that the
statement of victim can be sole basis for conviction, unless there are
cogent reasons for the court to be hesitant in believing the statement
as its face value or to seek corroboration. In the present case, the
evidence of the victim has been found sufficient and free from any
doubt. In paragraph 30&31, it was observed as under:
"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 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 attendant factors, we are
of the opinion that none of 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 suspicion?
The plea about lack of corroboration has no substance {See Bhupinder
Sharma v. State of Himachal Pradesh[4]}. Notwithstanding this legal
position, in the instant case, we even find enough corroborative
material as well, which is discussed hereinabove."
28 In State of Punjab Vs. Gurmit Singh & Others, 1996(2)SCC 384, the
Supreme court has observed in paragraph 21 as under:
"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 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."
29 Further, the DNA report Ex.P/30 is found negative and in the FSL report
Ex.P/39 no sperms and semen were found on the vaginal swab of
victim, but in view of the fact that scientific reports are only an opinion
and it does not give any primacy over the evidence of victim as well as
eyewitness, no benefit could be extended to the appellant for the said
reports.
30 Having gone through the entire evidence available on record and
judgment passed by the trial court and also considering the rival
submissions made by the counsel for the parties, we are of the
considered opinion that conviction and sentence awarded by the trial
court against the appellant for the alleged offences does not suffer from
any illegality or perversity. There are sufficient and overwhelming
evidence against the appellant to convict him in the offence in question.
31 Accordingly, the appeal is dismissed. The appellant is reported to be
in jail. He shall serve the entire sentence as awarded by the trial court.
32 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.
33 The Trial court records 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
inder
HEAD NOTE
Conviction can be made on the basis of sole testimony of the
victim when her deposition is found to be trustworthy, unblemished,
credible and her evidence is of sterling quality, even if her
medical/scientific report is found to be negative.
