Dismissed

Ashok Sahu v. State of Chhattisgarh

Chhattisgarh HC5 Oct 2023CRA/720/2023

Case brief

AI extract

What is this about?

Convictions for raping and threatening a minor daughter were upheld. The Court accepted proof of minority and the victim's testimony, rejecting challenges based on discrepancies and lack of medical corroboration. The appeal was dismissed and the sentences affirmed.

What the court decided

AI extract

Ashok Sahu Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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- Judgment reserved on: 22 09-2023

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Judgment delivered on: 05-10-2023

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CRA No. 720 of 2023

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Ashok Sahu S/o Late Pandaram Sahu Aged About 38 Years R/o Sakin Jogideepa, P.S. Mulmula, District Janjgir Chhattisgarh

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---- Appellant

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Versus

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State of Chhattisgarh Through Station House Officer Kasdol, District Balodabazar Bhatapara Chhattisgarh

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---- Respondent

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(Cause Title taken from Case Information System)

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----------------------------------------------------------------------------------------------------For Appellant : Mr. Ashish Gangwani holding the brief of Mr. Pankaj Singh, Advocate For Respondent/State : Mr. Pawan Kesharwani, Panel Lawyer

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Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri N. K. Chandravanshi, Judge

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C.A.V. Judgment

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Per Ramesh Sinha, Chief Justice

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This criminal appeal preferred under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 10.03.2023 passed by the Additional District and Sessions Judge FTSC (POCSO Act), Balodabazar, Chhattisgarh in Special Criminal Case (POCSO) No. 44/2021, by which the appellant has been convicted for offences punishable U/s 506 of IPC and U/s 6 of the POCSO Act and sentenced him to undergo Rigorous Imprisonment for a term of 5 years and fine of Rs.500/-, in default of payment of fine additional Rigorous Imprisonment for 06 months and

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Life Imprisonment and fine of Rs.1,000/-, in default of payment of fine additional Rigorous Imprisonment for 01 year with a direction to run both the sentences concurrently.

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Case of the prosecution, in brief, is that on 04.06.2021, a written report was filed vide Ex.P-7 by the victim to the effect that the victim’s mother had gone to work with the children and the victim was alone at home, then at 11.30 a.m., the accused came back from work, he found the victim alone at home, raped her and threatened to kill her if she told anyone. On the basis of said written complaint, First Information Report No. 0183/2021 was registered against the accused U/s 376 of IPC and U/s 4 and 6 of the POCSO Act vide Ex.P8 and the case was taken into consideration.

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Investigating Officer went to the place of incident on 05.06.2021 and prepared the spot map vide Ex.P-9. Statement of the victim was recorded under Section 164 of the Cr.P.C. vide Ex.P-10 and on the same date, the accused was arrested in front of witnesses and prepared the arrest sheet vide Ex.P-21. The notice of arrest is Ex.P-6. Medical examination of victim was got done by Dr. Karuna Yadav (PW-7) vide Ex.P-2, in which she has stated no injury has been seen on the private part of the victim and therefore, two vaginal slides were prepared vide Ex.P-24. Underwear of the victim was seized vide Ex.P5 and underwear of the appellant was seizure memo Ex.P-23. The appellant was also medically examined by Dr. Mahendra Jaiswal (PW-8). Seized articles were sent for FSL report vide Ex.P-27 and the FSL report was received vide Ex.P-28, whereby human spermatozoa

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have been reported to be found in underwear (A) and vaginal slides (B) of the victim and also in underwear (C) of the appellant. After usual investigation chargesheet was filed against the accused before the Additional District Sessions Judge FTC (POCSO Act) Balodabazar, who conducted the trial.

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Learned trial Court framed charges under Sections 376(n)(3), 506 IPC and Section 6 of the POCSO Act, 2012, read over and explained to the accused, who abjured his guilt.

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In order to bring home the offence, the prosecution examined following witnesses :-

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PW-01 Smt. Ishwari Sahu, Prosecutrix’s mother 2. PW-02 Prosecutrix 3. PW-03 Nilmani Sahu, Independent witness 4. PW-04 Premlal Sahu, Independent witness 5. PW-05 Jagannath Prasad Kashyap, Head Master

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PW-06 Rishikesh Mishra, Patwari 7. PW-07 Dr. Karuna Yadav, examined the victim 8. PW-08 Dr. Mahendra Jaiswal, examined the accused

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PW-09 Arun Sahu, Investigating Officer.

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Besides aforesaid ocular evidence, prosecution also

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exhibited following documents :-

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1 Ex. P/01 Consent letter of Smt. Ishwari Sahu 2 Exs. P/02A & 02 Application for medical examination of prosecutrix & Report

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3 Ex. P/03 Panchnama 4 Ex. P/04 Spot map

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5	Ex. P/05	Property Seizure Memo
6	Ex. P/06	Information of Arrest
7	Ex. P/07	Written Complaint
8	Ex. P/08	First Information Report
9	Ex. P/09	Crime Details Form
10	Ex. P/10	Consent letter of prosecutrix
11	Ex. P/11	Statement of prosecutrix u/s 164 of Cr.P.C.
12	Ex. P/12	Memo to Head Master regarding providing of Dakhil Kharij Register
13	Ex. P/13	Property Seizure Memo
14	Ex. P/14C	Dakhil Kharij Register
15	Ex. P/15	Supurdnama of Dakhil Kharij Register
16	Ex. P/16	Urine Routine Microcopy report of prosecutrix
17	Ex. P/17A & 17	Memo for examination of seized underwear of prosecutrix & Report
18	Ex. P/18A & 18	Application for medical examination of accused & Report
19	Ex. P/19A & 19	Memo for examination of seized underwear of accused & Report
20	Ex. P/20	Memo to JMFC requesting to record the statement of prosecutrix U/s 164 of Cr.P.C.
21	Ex. P/21	Arrest/Court Surrender Memo
22	Ex. P/22	Memo to SDM seeking order to record the statement of prosecutrix by the female officer
23	Ex. P/23	Property Seizure Memo
24	Ex. P/24	Property Seizure Memo
25	Ex. P/25	Memo for sport map
26	Ex. P/26	Memo to F.S.L. for chemical examination of seized articles.
27	Ex. P/27	Receipt of seized articles
28	Ex. P/28	FSL Report

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Statement of accused was recorded under Section 313 of the Cr.P.C. in which he denied all the circumstances appearing against him and stated that he is innocent and has been falsely

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implicated. He has examined 01 defence witness Maruti Das (DW-1).

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The trial Court upon appreciation of oral and documentary evidence on record and considering that it is the appellant who have committed aforesaid offence, convicted and sentenced him in the aforementioned manner, against which the appeal under Section 374(2) of the CrPC has been preferred by the appellant.

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It has been argued by the learned counsel for the accused/appellant that as per case of the prosecution, victim was minor on the date of incident, but this fact has not been proved by adducing lawful evidence. In this regard, only Dakhil-Kharij register (Ex. P-14C) of the victim has been seized, which shows that date of birth of victim is 1310-2006, but it has not been proved by any of the witnesses that, on what basis aforesaid date of birth was recorded in the school. It is further submitted that since prosecution has failed to prove by adducing cogent evidence that, on the date of incident, victim was minor, hence the finding recorded by learned trial Court in this regard is not sustainable. He further submitted that learned trial Court erred in reading MLC Report and statement of PW-7 Dr. Karuna Yadav and has also failed to consider that there is nothing in medical report to show that forcible sexual intercourse was committed upon the prosecutrix. He further submitted that the accused is an innocent and PW-1 wife of the accused has falsely implicated the appellant using shoulder of the victim as she was having illicit relation with some other person, which was objected by the accused. The age of the prosecutrix has not been proved, that at the time of incident whether

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she was a minor through School Register. The learned trial Court had not considered the whole evidence in its totality and only appreciated the evidence of PW-1 and PW-2.

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On the other hand, learned State Counsel opposed the submissions of learned counsel for the appellant and submitted that the offences committed by the appellant were heinous in nature and thus, the trial court had rightly convicted him. He submitted that the trial Court had considered all the arguments made by the appellant and there was sufficient evidence to prove his guilt beyond a reasonable doubt. Moreover, the FSL Report also indicates presence of semen in the articles seized from the prosecutrix and appellant. Therefore, the judgment passed by the trial court was sound and did not warrant any interference.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well.

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In the instant case conviction of the accused/appellant is substantially based on the testimonies of the victim (PW-2), statement of her mother, Ishwari Sahu (PW-1), Dhakhil Kharij Register (Ex.P-14C), statement of Jagannath Prasad Kashyap (PW-5) and FSL report Ex.P-28.

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As per case of the prosecution, the date of birth of the prosecutrix is 13.10.2006 on this basis on the date of incident i.e. on 04.06.2021,

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the age of the prosecutrix was 14 years 07 months and 22 days. To substantiate this fact, prosecution has adduced Dhakhil Kharij Register of Government Primary School, Jogidipa, District - JanjgirChampa (Ex.P-14C), which has been proved by the Headmaster of said school Jagannath Prasad Kashyap (PW-5). This witness has clearly deposed in his deposition that in the Dhakhil Kharij Register information with regard to victim has been noted in Admission No. 1063 and she was admitted in Class-I on 21.06.2012. He has also stated that as per this Register, the date of birth of victim is 13.10.2006. This witness has denied the suggestion that aforesaid entry with regard to victim has not been made by him rather he has clearly stated that at the time of admission of victim, he was in-charge Headmaster of the school and therefore, he himself has noted all the information in Dakhil Kharij Register with regard to the victim on the basis of information given by her parent. Although, he has admitted that in support of alleged date of birth of victim, no any document was filed, but on the date of recording of deposition of victim (PW-2) on 11.08.2021, the trial Court has assumed her apparent age as 14 years and during the course of medical examination on 05.06.2021, Dr. Karuna Yadav (PW-7) has also assumed her age as 14 years.

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The date of birth of the victim was recorded as 13.10.2006 in the Dhakhil Kharij Register prior to 9 year of the present incident on the basis of which victim was found to be aged about 14 years 07 months and 22 days on the date of incident. The appellant is her father, but he has not adduced any evidence to discard aforesaid age of the

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victim. Rather that age has also get support from age noted by Doctor while medical examination of victim and Court while recording of her statement in the Court. It is also apt to note here that in the statement recorded under Section 164 Cr.P.C., the victim herself has stated that her age is 14 years and 7 months.

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Thus, on the basis of aforesaid oral and documentary evidence, we find that the learned trial Court has rightly held in paragraph 35 of the impugned judgment that on the date of incident the victim was child i.e. below the age of 18 years.

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So far as with regard to allegation of rape committed by the appellant with the victim is concerned, PW-2, who is victim of the case, in her examination-in-chief has stated that on the date of the incident, her father, the accused, her mother and her two brothers had gone to work and she was alone present at home and was sleeping at home, at that time her father (accused) came to the house and she woke up. The accused came and started abusing her. The accused told her that she used to tell her mother about whatever he do with her, thereafter, the accused took out her slacks and started strangulating and had established physical relation with her and had committed rape on her. After that the accused had also beaten her and left the house. When her mother reached home at around one O’clock and asked why she was crying then she told her mother that the accused had come into the house and committed rape on her. She also told her mother that the accused was already raping her, then her mother said that let’s go to the police station and lodge a report of the

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incident, for how may days will we bear all this things. The victim has admitted in her cross-examination that the appellant used to quarrel with her mother and he also assault her when she intervene between them. She has also stated in her cross-examination also that her father is always wrong. She has denied the suggestion that the appellant has never sexually exploited her. Although she has admitted that prior to this incident she had never complained against appellant, but she has also stated that as the appellant threatened her to kill her and all family members, therefore, she has not told anyone in this regard prior to his incident.

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The victim in her statement under Section 164 Cr.P.C. has stated that the incident took place on 04.06.2021 at 11.30 am when she was alone present at home on the date of the incident and other members had gone to work, her father (accused) had suddenly returned home after making some excuse to her mother. Her father (accused) was abusing and even beating her when he came into the house. During that time, her father (accused) had forcefully removed her lower clothes from her body and had established physical relation with her against her will. When she told her father (accused) that she would tell her mother, he threatened to kill her by intoxicating her with phenyl. Even before this, the accused had established physical relations with her against her will, but she did not tell anyone at home due to fear and shame.

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PW-1, Ishwari Sahu, who is mother of victim and wife of the accused, has stated that she had three children, two boys and a girl. On the

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morning of incident, she along with his husband (accused) and both the boys had gone to do some work, the victim was alone present at home. When she and her children returned back to home, the victim was crying in the house. When she asked, the victim told that the accused had come home at around 11.30 in the day, thrown her on the cot, removed her slacks, strangulated her and had established physical relation and committed rape on her. The victim had also told that the accused threatened to kill her if she inform about the incident to her mother or anyone else and went back to work. She has given evidence that after the victim narrated the incident, she went to the police station and lodged a report. In her cross-examination, she has stated that she do not know the dates of birth of her three children. She has denied the suggestion that on June 2, two days before the incident, she was at home instead of going to work as she was unwell. She has also denied the suggestion that on June 2, when the accused came home for dinner, she was not at home but was upstairs in Harish Sahu’s house and after that the accused had quarreled with her by saying that she was sitting in Harish Sahu’s house instead of going to work, but she herself stated that she was neither sitting in Harish Sahu’s house nor there was any dispute.

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Neelmani Sahu (PW-3) in his examination-in-chief has stated that Harish Sahu, who was living on rent in the same premises where the family of victim were living, had told him that the accused had raped his own daughter and a report has been lodged. Even in his crossexamination, he has admitted that information about the incident was

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given to him by Harish Sahu over phone and no other person other than Harish Sahu told him about the incident. Similarly, Prem Lal Sahu (PW-4) has stated that he got information about the incident from the wife of the accused on the second day of the incident, as such, they both are the hearsay witnesses.

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Dr. Karuna Yadav (PW-7), the medical officer who has examined the victim, has deposed that though as per MLC report (Ex.P.2) on general examination, the victim is conscious oriented, mental health normal, stable, no signs of struggle seen on her body and her genital examination gave evidence of vulva vagina normal, hymen old torn and no injury seen on her private part. She has given opinion after examination that no definite opinion can be given as there are no signs of forceful recent intercourse signs of immediate forced intercourse and a positive report was found in the urine pregnancy test of the victim vide Ex.P-16, however, as per her deposition she had prepared two vaginal slides of the victim and handed over the same to the lady constable. The said fact has further been supported by the Investigating Officer.

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The Investigating Officer Arun Sahu (PW-9) has seized underwear of the victim vide Ex.P-5 and underwear of the appellant was seizure memo Ex.P-23 and the seized articles were sent for FSL report vide Ex.P-27 and the FSL report was received vide Ex.P-28, whereby human spermatozoa have been reported to be found in underwear (A) and vaginal slides (B) of the victim and also in underwear (C) of the appellant.

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Dr. Mahendra Jaisawal (PW-8), who has examined the accused, had stated that on general examination he found that the accused was normal and his mental condition was also normal. His secondary sexual characteristics were fully developed. Chremastic reflex was present, there was no injury on his body and smegma was absent. According to his opinion, the accused was capable to commit sexual intercourse. The report given him is Ex.P-18.

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Defence has examined Murit Das (DW-1) in his support. In his crossexamination, he has given evidence that the accused had come to him several times with his wife and three-four times alone. This witness has given statement of not knowing whether a meeting was held in village Tuma or not. He has stated that the accused suspected his wife of having an illicit relationship with another person. The most important fact is that this defense witness has given evidence of not having any information about the meeting held in village Tuma regarding the quarrel with the accused and his wife, while on the other hand, the defense has given suggestion to the prosecution witnesses about the meeting held in village Tuma regarding the quarrel with the accused and his wife.

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Thus, commission of rape by the appellant with the victim girl has not only supported by herself but it also get supports from the statement of her mother, Ishwari Sahu (PW-1), who is natural witness as being minor daughter, she would naturally inform her mother about the incident and further aforesaid fact has also get support form FSL report (Ex.P-28). It has not been elicited in cross-examination to

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discard their deposition made in examination-in-chief and further, the appellant is father of the victim girl. However, defence has been taken by the appellant vide examination of defence witness Murit Das (DW-1) that since mother of victim had illicit relation with someone which was objected by appellant, therefore, she has implicated the appellant in the instant case, but to substantiate this defence, no credible evidence has been adduced by the appellant. Further, appellant is the father then it cannot be assumed that without any reason why his own girl and wife will implicate him in such type of heinous crime of rape of his own daughter.

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In view of above discussion, we also affirm finding recorded by the trial Court that the appellant is the perpetrator of instant crime and he sexually exploited his minor daughter and also threatened her.

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During course of submission learned defence counsel draw our attention towards some contradictions and omissions in depositions of the prosecution witnesses, but the Hon’ble Supreme Court in the case of State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 , while considering the reliability of the statement of the victim has held that “minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault was enough for conviction and does not require corroboration unless there were compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience” . The same was reiterated in Pappu v. State of Uttar

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Pradesh, 2022 SCC OnLine SC 176 .

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Learned counsel for the appellant during course of argument also raised objection that except victim there is no credible evidence in support of her statement even deposition of her mother is based on information given by victim and medical evidence also does not corroborate, therefore, only on the basis of deposition of victim holding guilty to the appellant by the learned trial Court is not sustainable.

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We are not inclined with the submission made by learned counsel for the appellant as it is settled proposition of law that conviction of the accused could be based on sole testimony, without corroboration and it has also been held that the sole testimony of prosecutrix should not be doubted by the court merely based on assumptions and surmises.

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In the case of Ganesan v. 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. In the aforesaid case, the Supreme Court had an occasion to consider the series of judgments on conviction on the sole evidence of the prosecutrix. In paragraphs 10.1 to 10.3, it was observed and held as under:

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“ 10.1 . Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191] , it is observed in paras 9 to 14 as under: (SCC pp. 195-98)

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“9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16)

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‘16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for

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evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.’

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10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12)

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‘12. It is well settled that a prosecutrix complaining of having been a victim of the

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offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.’

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11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty- ound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused

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cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21)

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‘8. … The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. … 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. … Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. … Corroboration as a condition for judicial reliance

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on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. …

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***

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21. … 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.’

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12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86] , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly

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where the witnesses had not seen the commission of the offence.

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13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622] , this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, AIR 1952 SC 54] . 14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.”

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10.2 . In Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130] , it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.

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10.3 . Who can be said to be a “sterling witness”, has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi) [Rai Sandeep v.

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State (NCT of Delhi), (2012) 8 SCC 21] . In para 22, it is observed and held as under: (SCC p. 29)

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“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 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

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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.”

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In the case of State (NCT of Delhi) v. Pankaj Chaudhary , {(2019) 11

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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. In paragraph 29, it was observed and held as under:

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“29. It is now well- settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon

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without corroboration and as such it has been laid down that corroboration is not a sine qua non 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, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30] .”

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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. In paragraphs 6 and 7, it was observed and held as under:

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“6. We are conscious that the courts 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 the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking

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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 court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] (SCC p. 403, para 21).]

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7. It is also by now well settled 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. 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

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reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635).”

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Reverting to the instant case, since the accused being the father of the victim did not hesitate to commit such preposterous and bestial act upon his minor daughter and the victim was completely helpless as her father, who is naturally entrusted with the noble duty of caring and protecting her, could not have control over his lust and tried to quench the sexual thirst by exploiting her. Further, that this degrading act of the accused stupefies the judicial conscience of the Court as it is unthinkable to even comprehend that in a country where women are traditionally viewed as an incarnation of the God and daughters are worshipped as Devi , such heinous acts are being committed by a father. A daughter needs a father to be the standard against which she will judge all men. When the father who is the creator of the girl child and supposed to act as her protector, takes the role of the predator, it would be sheer betrayal of someone’s trust and faith and has got serious impact on humanity, therefore, in the matter at hand, there was no doubt that being in a position of authority and trust, the accused misused his position and sexually exploited his innocent minor daughter and raped her.

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Considering the aforesaid facts and circumstances of the case, particularly the evidences of the victim (PW-2), statement of her mother, Ishwari Sahu (PW-1), Dhakhil Kharij Register (Ex.P-14C),

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statement of Jagannath Prasad Kashyap (PW-5) and FSL report Ex.P-2, it is quite clear that on the date of incident the victim was child i.e. below the age of 18 years and the accused had physical relations with his own minor daughter since long back and due to fear and shame, the same has not been disclosed earlier and on the date of incident, the accused had established physical relation with the victim and committed rape on her against her will and thereby committed a heinous crime. Thus, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentenced as awarded by the trial court is hereby upheld. The present appeal lacks merit and is accordingly dismissed .

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The appellant is stated to be in jail since 05.06.2021 being the date of arrest. He is directed to serve out the sentence as awarded to him by the trial court.

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Let the lower court record and copy of this judgment be sent to the trial court forthwith for necessary information and its compliance.

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Sd/Sd/- (N.K. Chandravanshi) (Ramesh Sinha) Judge Chief Justice

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Judgment Date : 05/10/2023

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Chandra

Ashok Sahu v. State of Chhattisgarh

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Ashok Sahu v. State of Chhattisgarh

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