IMPORTANT POINT
Rape – Sole evidence of victim, when cogent and consistent, could be properly used to arrive at a finding of guilt – Corroboration from medical evidence is not sine qua non when cogent evidence of victim is available.

JUDGMENT :

N.V. ANJARIA, J.

Delay condoned. Leave granted.

2. Preferred by the appellant-accused, the present appeal addresses the challenge to judgment and order 22nd September, 2023 passed by the High Court of Chhattisgarh, at Bilaspur, in CRA No. 34 of 2020 whereby the High Court continued the judgement and order of the Special Judge (SC/ST Court), Rajnandgaon, (CG) in Special Criminal (T) Case No. 10 of 2018, convicting and sentencing the appellant.

2.1 The appellant came to be convicted for the offence punishable under Section 450 of the Indian Penal Code, 1860 to undergo rigorous imprisonment for five years with fine of Rs. 5,00/-. He was also convicted for the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 [POCSO Act] and further came to be convicted for the offence under Section 376 (2), IPC to be sentenced to undergo rigorous imprisonment for ten years and with a fine of Rs. 1,000/-. The punishment for the offence under Section 376 (2), IPC, which was more severe to one provided for the offence under the POCSO Act therefore the same came to be awarded.

3. As per the prosecution case, the incident occurred on 03.04.2018 at about 12:00 Noon. On the fateful day, the victim aged about 15 years and her younger brother named Mayank, aged about 11 years were inside their house. The parents had gone to village Karate to attend the funeral as there was a death in their family. Finding the victim alone in the house, the appellant-accused entered the house. He thereafter sent the brother of the victim to bring a pack of chewing tobacco. Once the brother of the victim left the house, the accused forced the victim to lie on the cot lying in the porch of the house, gagged her mouth and then committed sexual intercourse. When the brother of the victim came back, seeing him, the appellant-accused fled away from the house, threatening the victim not to tell anything to anyone.

3.1 Soon after the incident the victim went to her cousin sister- Dushyantin’s house in the neighbourhood and told about the incident. The brother of the Dushyantin named Khomendra, who had gone to village Kareti with the parents of the victim, was also informed through mobile phone about the incident. The parents of the victim rushed back to home. When they reached the home, the victim narrated the entire story of the incident to her parents. A police complaint was lodged, and FIR (Ex. P-08) was registered.

3.2 The victim was subjected to medical examination, statement under Section 164 of the Code of Criminal Procedure, 1978 was recorded and a criminal case was registered for the offences as above, which was tried before the Special Court culminating into conviction and sentence of the appellant upheld by the High Court.

3.3 Amongst the witnesses examined by the prosecution in course of the trial, included the prosecutrix herself (PW-2), mother Alka (PW-1), father Mayaram (PW-3), brother Mayank (PW-9), Dushyantin (PW-14), Medical Officer, Dr. R.K. Pashi (PW-11), Dr. Kiran, Block Medical Officer (PW-17), Investigating Officer (PW-18).

4. Learned advocate Mr. Manish Kumar Saran, AOR appearing for the appellant assailed the judgment of the High Court primarily and mainly on three grounds, as highlighted from the memorandum of appeal and elaborated in course of submissions. It was contended that the prosecution had failed to establish its case beyond the reasonable doubt and that it was not possible to rule out the theory of innocence of the appellant. In this regard, it was submitted that the evidence of the prosecutrix could not be relied on and needed to be analysed with caution when the medical report was not categorical to confirm the offence of sexual assault and rape on the victim. Secondly, it was contended that there were contradiction between the evidence of the victim (PW-2) and her younger brother (PW-9). Lastly it was sought to be contended that the prosecution could not establish that the victim was minor on th