Chattisgarh High Court
Bhagwat Prasad vs State Of Chhattisgarh on 18 February, 2025
1
2025:CGHC:8754
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 95 of 2016
1 - Bhagwat Prasad S/o Lt. Shri Girdhari Prasad Aged About 56 Years R/o Old
Mines, S.E.C.L. Q.No. 260, Bhatgoan, P.S. Bhatgaon, Distt. Surajpur,
Chhattisgarh., Chhattisgarh
... Appellant
versus
1 - State Of Chhattisgarh Through District Magistrate Surajpur, Chhattisgarh.,
Chhattisgarh
... Respondent
For Appellant : Mr. Ashok Shukla, Advocate
For Res./State : Mr. Shailendra Sharma, Panel Lawyers
Hon'ble Shri Justice Ravindra Kumar Agrawal
Judgment on Board
18.02.2025
1. Challenge in this appeal is to the judgment of conviction and order of
sentence dated 30.11.2015 passed by the learned Special Judge
(Scheduled Castes and Scheduled Tribes [Prevention of Atrocities],
Surajpur (C.G.) in Special Sessions Case No. 46/2014 whereby the
appellant has been convicted and sentenced in the following manner:
Conviction Sentence Fine In default of
payment of
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Fine
U/S 363 of R. I. for 7 Rs. 3,000/- R. I. for 6
Indian Penal years months
Code
U/S 366 of R. I. for 7 Rs. 3,000/- R. I. for 6
Indian Penal years months
Code
U/S 376(2)(i) R. I. for Rs. 5,000/- R. I. for 6
of Indian 10 years months
Penal Code
1860 and U/S
4 of Protection
of Children
from Sexual
Offences Act,
2012
All the sentences have been directed to run concurrently.
2. Case of the prosecution, in brief, is that on 15.03.2014 when the victim
(PW-6), who belonged to Scheduled Caste Community and aged about
13 years, at about 11 AM was going to her school on foot, at about 11.00
AM, near office of Nagar Panchayat, the present appellant came there by
his car and took her with him on the assurance that he will leave her to
the school and took her towards Ambikapur and in the Ramgarh Jangal,
he committed rape upon her. After committing rape upon her, he took her
by the said car to Ambikapur, purchased a chhappal from “A to Z” shop
and left her at about 4.00 pm near the school. The victim came back to
her house and informed the said incident to her parents. On the next day,
F.I.R. (Ex. P-6) was lodged by the victim and in pursuance thereof,
offence under Sections 363, 366-A, 376, 354 & 354-A of the IPC,
Sections 4 & 6 of Protection of Children from Sexual Offences Act, 2012
(in short POCSO Act, 2012) and Section 3(2)(v) of the Scheduled Caste
& Scheduled Tribe (Prevention of Atrocities) Act, 1989 have been
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registered against the appellant/accused. Thereafter, the victim was sent
for her medical examination to District Hospital, Surajpur where she was
medically examined by Dr. Suchita Nirmala Kindo (PW-10), who after her
medical examination, gave report vide Ex. P/11. While medically
examining the victim, the doctor has not noticed any external injuries on
her body and definite opinion can be given after chemical examination of
vaginal smear. Two slides of vaginal smear were prepared, sealed and
handed it over to police for its chemical examination. With respect to age
and date of birth of the victim, School Register (Ex.P-13) has been seized
from Government Primary School, Satpata, Bishrampur vide seizure
memo Ex. P/3 and after retaining the attested true copy of School register
Ex. P/13-C, the original Register Ex.P/13 were returned to the School.
The Social Status Certificate of the victim (Article A/1) has been seized
vide seizure memo Ex. P/1. The spot map (Ex.P/8) was prepared by the
police and spot map (Ex. P/9) was prepared by the Patwari. The
appellant was arrested on 06.07.2014 and he too was sent for his
medical examination to the Community Health Centre, Surajpur where he
was medically examined by Dr. Rajesh Kumar (PW05), who after his
medical examination, gave his report Ex. P/5 and found him capable to
perform sexual intercourse. Vaginal slides of the victim and underwear of
the appellant as well as underwear of the victim were sent for chemical
examination to Regional FSL, Ambikapur. Statements of the witnesses
under Section 161 of the Cr.P.C. have been recorded.
3. After completion of usual investigation, charge sheet was filed against the
appellant for the offence under Sections 363, 366-A, 376, 354 and 354-A
of Indian Penal Code, Sections 4 & 6 of the Protection of Children from
Sexual Offences Act, 2012 (in short “POCSO Act, 2012“) and Section
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3(2)(v) of the Scheduled Caste & Scheduled Tribe (Prevention of
Atrocities), Act.
4. On 13.10.2014, learned Trial Court has framed charges against the
appellant for the offences under Sections 363, 366-A and 376, 354, 354-
A of IPC, Section 4 of POCSO Act, 2012 and Section 3(2)(v) of SC/ST
Act. After recording evidence of the parties, on 16.10.2015, the learned
trial Court has amended the charge and in place of the charge under
Section 376 of IPC, the charge under Section 376(2)(i) of IPC have been
framed. The opportunity to examine/cross-examine and re-examine/re-
cross examine the witness have been provided to the parties and on
their application filed under Section 217 Cr.P.C., victim (PW-6),
Jagjeevan Ram (PW-7) [father of the victim] and Sunita (PW-8) [mother
of the victim] were re-called for their re-cross examination and on
05.11.2015, they have been re-cross examined.
5. In order to prove the charge against the accused/appellant, the
prosecution has examined as many as 16 witnesses. The statement of
accused was also recorded under Section 313 of Cr.P.C. in which he
denied the circumstances appear against him, pleaded innocence and
stated that he has falsely been implicated for the said offence. The
appellant has further stated in his 313 Cr.P.C. statement that he was
suffering from waist pain, for which he was admitted in District Hospital,
Baikunthpur. The victim is more than 18 years of age, which is not
properly enquired by the police and as per his information, the victim was
present in the school on the date of alleged incident. The father of the
victim came alongwith a Journalist in the jail and demanded Rs. 10 lacs.
He is innocent and has been falsely implicated in the present case. One
defence witness namely-Dr. A. K. Karan has also been examined by the
appellant in support of his submission as DW-1.
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6. After appreciation of oral as well as documentary evidence led by the
prosecution, learned trial court has convicted and sentenced appellant –
Bhagwat Prasad as mentioned in the earlier part of this judgment. Hence
this appeal.
7. Learned counsel for the appellant would argue that the prosecution has
failed to prove its’ case against the appellant beyond reasonable doubt.
There are material omission and contradiction in the evidence of the
prosecution witnesses, which cannot be made basis for his conviction.
There is no legally admissible evidence with respect to the age and date
of birth of the victim that she was minor on the date of incident. The
school register produced by the prosecution has not been proved in
accordance with law and no other documentary evidence like Kotwari
register, birth certificate or ossification test report with respect to the age
or date of birth of the victim have been produced by the prosecution. The
author of the school register has not been examined and the basis on
which the entries have been made in the school register have also not
been produced by the prosecution. Therefore, in absence of any cogent
and clinching evidence, the age of the victim cannot be determined that
she was minor on the date of incident and less than 18 years of age. He
would further submit that the victim herself eloped with the appellant on
the date of incident and engaged in making consensual physical
relationship with him without raising any objection and without any
protest, her conduct itself is suspicious that even after alleged
commission of rape, she accompanied with the appellant in his car, went
to the market and purchased a Chhappal and again came alongwith the
appellant by his car and in all that period she has not made any complaint
to anyone even in the market also at the time when she was purchasing
the Chhappal alongwith the appellant. There is no external injuries found
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on the body of the victim and no sign of any protest or struggle. Evidence
of the victim is not sufficient to hold the guilty of the appellant for the
offence in question, therefore, the impugned judgment of conviction and
sentence suffers from illegality and perversity and the same is liable to
be set aside.
8. On the other hand, the learned counsel for the State while opposing the
arguments advanced by the counsel for the appellant contended that
from the evidence produced by the prosecution, there are sufficient
material against the appellant/accused to hold his conviction for the
alleged offence. The age of the victim is proved by the school register Ex.
P/13C, which is sought to be proved by Smt. Filomina Ekka (PW 13),
who is the Headmistress of the Govt. Primary School, Satpata, Police
Station Vishrampur. As per the school register, the victim is minor and
she was kidnapped by the appellant and kept her away from her lawful
guardianship and made physical relationship with her. Due to her
minority, the victim was not able to give her consent yet the appellant has
made physical relationship with her, therefore, offence of rape has clearly
been made out against the appellant. He would next submit that even no
injuries have been found on the body of the victim, that itself cannot make
prosecution case doubtful because there is no necessity in every case
that the victim of the offence of rape, must have received injuries on her
body but the same depends upon facts of the each case. After
considering the entire facts & circumstances of the case as well as
evidence available on record, learned trial Court has rightly convicted the
appellant, which needs no interference.
9. I have heard the counsel for the parties and perused the record of the
court below.
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10.The first and foremost question arises for consideration would be the age
of the victim as to whether on the date of incident, she was minor and
less than 18 years of age or not. The prosecution has mainly relied upon
the school Register Ex. P/13C, which is sought to be proved by PW 13,
who is the Headmistress of the Govt. Primary School, Satpata, Police
Station Vishrampur, she has stated in her deposition that the police has
seized school register vide seizure memo Ex. P/3 with respect to date of
birth of the victim and after retaining the attested true copy of the School
register Ex. P/13C, original School Register Ex.P-13 was returned to the
school. She brought the original register with her and as per the school
register the date of birth of the victim is mentioned as 15.08.2001. She
stated that the entries made in the school register had been made by
earlier Headmistress. In her cross examination, she admitted that there
is no mention in the school register Ex. P/13C about the basis on which
the date of birth of the victim has been recorded. She further admitted
that there is overwriting on the date of “15”. She also admitted that just
below the name of victim, the name of her sister is also mentioned and
there is overwriting in date of birth of her sister also. In further cross-
examination, she stated that she was not posted in the school at the
time, when the victim was admitted in the school. She did not know as to
whether the parent of the victim has recorded the date of birth of the
victim after reducing her actual age. From the evidence of this witness,
it is quite clear that she is not the author of the school register and there
is no evidence with respect to the basis on which the date of birth of the
victim is recorded in the school register.
11.The admissibility and evidencery value of the School Register has been
considered by the Hon’ble Supreme Court in paragraphs 40,42,43,44
and 48 of its judgment in Alamelu and Another Vs. State,
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represented by Inspector of Police, 2011(2) SCC 385, the Supreme
Court has observed as under:
“40.Undoubtedly, the transfer certificate, Ex.P-16 indicates that
the girl’s date of birth was 15th June, 1977. Therefore, even
according to the aforesaid certificate, she would be above 16
years of age (16 years 1 month and 16 days) on the date of the
alleged incident, i.e., 31st July, 1993. The transfer certificate has
been issued by a Government School and has been duly signed
by the Headmaster. Therefore, it would be admissible in evidence
under Section 35 of the Indian Evidence Act. However, the
admissibility of such a document would be of not much
evidentiary value to prove the age of the girl in the absence of the
material on the basis of which the age was recorded. The date of
birth mentioned in the transfer certificate would have no
evidentiary value unless the person, who made the entry or who
gave the date of birth is examined.
42. Considering the manner in which the facts recorded in a
document may be proved, this Court in the case of Birad Mal
Singhvi Vs. Anand Purohit1, observed as follows:-
“The date of birth mentioned in the scholars’ register has
no evidentiary value unless the person who made the
entry or who gave the date of birth is examined….Merely
because the documents Exs. 8, 9, 10, 11, and 12 were
proved, it does not mean that the contents of documents
were also proved. Mere proof of the documents Exs. 8, 9,
10, 11 and 12 would not tantamount to proof of all the
contents or the correctness of date of birth stated in the
documents. Since the truth of the fact, namely, the date of
birth of Hukmi Chand and Suraj Prakash Joshi was in
issue, mere proof of the documents as produced by the
aforesaid two witnesses does not furnish evidence of the
truth of the facts or contents of the documents. The truth
or otherwise of the facts in issue, namely, the date of birth
of the two candidates as mentioned in the documents
could be proved by admissible evidence i.e. by the
evidence of those persons who could vouchsafe for the
truth of the facts in issue. No evidence of any such kind
was produced by the respondent to prove the truth of the
facts, namely, the date of birth of Hukmi Chand and of
Suraj Prakash Joshi. In the circumstances the dates of
birth as mentioned in the aforesaid documents 1988
(Supp) SCC 604 have no probative value and the dates of
birth as mentioned therein could not be accepted.”
43. The same proposition of law is reiterated by this Court in the
case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where
this Court observed as follows:-
“The legal position is not in dispute that mere production
9and marking of a document as exhibit by the court cannot
be held to be a due proof of its contents. Its execution has to
be proved by admissible evidence, that is, by the “evidence
of those persons who can vouchsafe for the truth of the
facts in issue”.”
44. In our opinion, the aforesaid burden of proof has not been
discharged by the prosecution. The father says nothing about the
transfer certificate in his evidence. The Headmaster has not been
examined at all. Therefore, the entry in the transfer certificate can
not be relied upon to definitely fix the age of the girl.
48. We may further notice that even with reference to Section 35 of
the Indian Evidence Act, a public document has to be tested by
applying the same standard in civil as well as criminal proceedings.
In this context, it would be appropriate to notice the observations
made by this Court in the case of Ravinder Singh Gorkhi Vs. State
of U.P.4 held as follows:-
“The age of a person as recorded in the school register or
otherwise may be used for various purposes, namely, for
obtaining admission; for obtaining an appointment; for
contesting election; registration of marriage; obtaining a
separate unit under the ceiling laws; and even for the
purpose of litigating before a civil forum e.g. necessity of
being represented in a court of law by a guardian or where a
suit is filed on the ground that the plaintiff being a minor he
was not appropriately represented therein or any
transaction made on his behalf was void as he was a minor.
A court of law for the purpose of determining the age of a
(2006) 5 SCC 584 party to the lis, having regard to
the provisions of Section 35 of the Evidence Act will have to
apply the same standard. No different standard can be
applied in case of an accused as in a case of abduction or
rape, or similar offence where the victim or the
prosecutrix although might have consented with the
accused, if on the basis of the entries made in the register
maintained by the school, a judgment of conviction is
recorded, the accused would be deprived of his
constitutional right under Article 21 of the Constitution, as in
that case the accused may unjustly be convicted.”
12. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &
Others, 2022 (8) SCC 602, while considering various judgments, the Hon’ble
Supreme Court has observed in para 33 as under:
“33. What emerges on a cumulative consideration of the
aforesaid catena of judgments is as follows:
33.2.2. If an application is filed before the Court
claiming juvenility, the provision of sub-section (2)
of section 94 of the JJ Act, 2015 would have to be
applied or read along with sub-section (2) of section
109 so as to seek evidence for the purpose of
recording a finding stating the age of the person as
nearly as may be.
XXXX
XXXX
XXX
33.3. That when a claim for juvenility is raised, the
burden is on the person raising the claim to satisfy
the Court to discharge the initial burden. However,
the documents mentioned in Rule 12(3)(a)(i), (ii), and
(iii) of the JJ Rules 2007 made under the JJ Act,
2000 or sub- section (2) of section 94 of JJ Act,
2015, shall be sufficient for prima facie satisfaction of
the Court. On the basis of the aforesaid documents a
presumption of juvenility may be raised.
33.4. The said presumption is however not
conclusive proof of the age of juvenility and the
same may be rebutted by contra evidence let in by
the opposite side.
33.5. That the procedure of an inquiry by a Court is
not the same thing as declaring the age of the
person as a juvenile sought before the JJ Board
when the case is pending for trial before the
concerned criminal court. In case of an inquiry, the
Court records a prima facie conclusion but when
there is a determination of age as per sub-section
(2) of section 94 of 2015 Act, a declaration is made
on the basis of evidence. Also the age recorded by
the JJ Board shall be deemed to be the true age of
the person brought before it. Thus, the standard of
proof in an inquiry is different from that required in a
proceeding where the determination and
declaration of the age of a person has to be made
on the basis of evidence scrutinised and accepted
only if worthy of such acceptance.
33.6. That it is neither feasible nor desirable to lay
down an abstract formula to determine the age of a
person. It has to be on the basis of the material on
record and on appreciation of evidence adduced by
the parties in each case.
33.7 This Court has observed that a hypertechnical
approach should not be adopted when evidence is
adduced on behalf of the accused in support of the
plea that he was a juvenile.
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33.8. If two views are possible on the same evidence,
the court should lean in favour of holding the accused
to be a juvenile in borderline cases. This is in order
to ensure that the benefit of the JJ Act, 2015 is made
applicable to the juvenile in conflict with law. At the
same time, the Court should ensure that the JJ Act,
2015 is not misused by persons to escape
punishment after having committed serious offences.
33.9. That when the determination of age is on the
basis of evidence such as school records, it is
necessary that the same would have to be
considered as per Section 35 of the Indian Evidence
Act, inasmuch as any public or official document
maintained in the discharge of official duty would
have greater credibility than private documents.
33.10. Any document which is in consonance with
public documents, such as matriculation certificate,
could be accepted by the Court or the JJ Board
provided such public document is credible and
authentic as per the provisions of the Indian
Evidence Act viz., section 35 and other provisions.
33.11. Ossification Test cannot be the sole criterion
for age determination and a mechanical view
regarding the age of a person cannot be adopted
solely on the basis of medical opinion by radiological
examination. Such evidence is not conclusive
evidence but only a very useful guiding factor to be
considered in the absence of documents mentioned
in Section 94(2) of the JJ Act, 2015.”
13. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector
of Police, 2023 (SCC Online) SC 846, Hon’ble Supreme Court has held in para 14
to 17 as under :
“14. Section 94 (2)(iii) of the JJ Act clearly indicates that
the date of birth certificate from the school or matriculation
or equivalent certificate by the concerned examination
board has to be firstly preferred in the absence of which
the birth certificate issued by the Corporation or Municipal
Authority or Panchayat and it is only thereafter in the
absence of these such documents the age is to be
determined through “an ossification test” or “any other
latest medical age determination test” conducted on the
orders of the concerned authority, i.e. Committee or Board
or Court. In the present case, concededly, only a transfer
certificate and not the date of birth certificate or
matriculation or equivalent certificate was considered. Ex.
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C1, i.e., the school transfer certificate showed the date of
birth of the victim as 11.07.1997. Significantly, the transfer
certificate was produced not by the prosecution but
instead by the court summoned witness, i.e., CW-1. The
burden is always upon the prosecution to establish what it
alleges; therefore, the prosecution could not have been
fallen back upon a document which it had never relied
upon. Furthermore, DW-3, the concerned Revenue Official
(Deputy Tahsildar) had stated on oath that the records for
the year 1997 in respect to the births and deaths were
missing. Since it did not answer to thedescription of any
class of documents mentioned in Section 94(2)(i) as it was
a mere transfer certificate, Ex C-1 could not have been
relied upon to hold that M was below 18 years at the time
of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs. State
of Uttar Pradesh & Ors. this court outlined the procedure to
be followed in cases where age determination is required.
The court was dealing with Rule 12 of the erstwhile
Juvenile Justice Rules (which is in pari materia) with
Section 94 of the JJ Act, and held as follows:
“20. Rule 12 of the JJ Rules, 2007 deals with the
procedure to be followed in determination of age. The
juvenility of a person in conflict with law had to be
decided prima facie on the basis of physical
appearance, or documents, if available. But an
inquiry into the determination of age by the Court or
the JJ Board was by seeking evidence by obtaining:
(i) the matriculation or equivalent certificates, if
available and in the absence whereof; (ii) the date of
birth certificate from the school (other than a play
school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat. Only in the
absence of either (i), (ii) and (iii) above, the medical
opinion could be sought from a duly constituted
Medical Board to declare the age of the juvenile or
child. It was also provided that while determination
was being made, benefit could be given to the child
or juvenile by considering the age on lower side
within the margin of one year.”
16. Speaking about provisions of the Juvenile Justice Act,
especially the various options in Section 94 (2) of the JJ
Act, this court held in Sanjeev Kumar Gupta vs. The State
of Uttar Pradesh & Ors that:
“Clause (i) of Section 94 (2) places the date of birth
certificate from the school and the matriculation or
equivalent certificate from the 2021 (12) SCR 502
13[2019] 9 SCR 735 concerned examination board in
the same category (namely (i) above). In the
absence thereof category (ii) provides for obtaining
the birth certificate of the corporation, municipal
authority or panchayat. It is only in the absence of (i)
and (ii) that age determination by means of medical
analysis is provided. Section 94(2) (a)(i) indicates a
significant change over the provisions which were
contained in Rule 12(3)(a) of the Rules of 2007
made under the Act of 2000. Under Rule 12(3)(a) (i)
the matriculation or equivalent certificate was given
precedence and it was only in the event of the
certificate not being available that the date of birth
certificate fromthe school first attended, could be
obtained. In Section 94(2)(i) both the date of birth
certificate from the school as well as the
matriculation or equivalent certificate are placed in
the same category.
17. In Abuzar Hossain @ Gulam Hossain Vs. State of West
Bengal, this court, through a three-judge bench, held that
the burden of proving that someone is a juvenile (or below
the prescribed age) is upon the person claiming it. Further,
in that decision, the court indicated the hierarchy of
documents that would be accepted in order of preference.”
14. Reverting to facts of the present case, the victim (PW 06) has stated in
his evidence that the victim has not disclosed her date of birth or age in her
chief-examination. In her cross-examination she stated that her date of birth is
05.07.2000. They are having five brothers and sisters and there are gap of one
year in each of them. In her further cross-examination, she stated that she did
not remember as to who had got admitted her in the school. She born in her
house at village Pandopara, she had got admitted at class first at Bishrampur
in the first time. She also did not know as to what documents was produced at
the time of her admission in the school. She further stated that she disclosed
her date of birth as per the information given by her mother.
15. The Mother of the victim (PW08) has not disclosed the date of birth or
age of the victim in her chief-examination. However, when she was cross-
examined by the defence, she stated that she had got married since 15 to 16
years back and after one year of her marriage the victim born. In cross-
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examination, she further stated that she did not know as to whether the birth of
the victim had got recorded in Kotwari Panji or not. She denied the suggestion
that the victim had not got any birth certificate. She voluntarily stated that her
birth certificate had got prepared for the purposes of vaccination. She further
stated that she had gone to the school for her admission alongwith her husband
and she informed the date of birth of the victim orally.
16. Jagjeevan Ram (PW-8), father of the victim, has stated in his
examination-in-chief that age of his daughter (victim) is about 13 years, but has
not disclosed any date of birth. In cross-examination, he stated that he did not
know about date of birth of his daughter and even he did not know about date of
birth of any of the children. He has got admitted date of birth of the victim has
been recorded in the Kotwari Panji of village Kundabasti. At the time of her
admission in the School, there was no demand of Kotwari Panji in the School
from him. Victim was got admitted in the School on the tradtional method of
determining her age by putting her hand on the ear of other side. He further
stated that at the time of her admission in the School, his wife has not gone with
him in the School. He also stated that he has got prepared birth certificate of the
victim from Bishrampur Hospital.
17. From all these evidence of victim as well as her parents, there appears to
be no clinching and cogent evidence with respect to her age, victim has stated
that her date of birth is 5.7.2020, stated that she disclosed her date of birth on
the basis of information disclosed by her mother, whereas Sunita (PW-8),
mother of the victim did not disclose her any date of birth. Date of birth of victim
has got recorded in the Kotwari Registered, but the same has not been
produced by the prosecution. Her mother has stated that she has got admitted
her daughter in the School, but father of the victim has stated in his evidence
that at the time of admission of her daughter in the School, her mother had not
gone to the School. Father of the victim (PW-7) has not disclosed any date of
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her birth and the victim has got admitted in the School on following the
traditional method. Though, he stated that he has got prepared birth certificate
of the victim from the Hospital, but the same has also not been produced by the
prosecution. Therefore, considering the overall evidence produced by the
prosecution with respect to age of the victim, it would not be safe to hold that
the victim was minor on the date of incident, yet the learned trial Court has held
her minor.
18. So far as offence of kidnapping and rape is concerned, I again examined
the evidence of the victim (PW-6). She stated in her evidence that on the date
of incident, when she was going to School, near Nagar Panchayat, Vishrampur,
appellant/accused came from her backside in his car and asked for his
company and he will leave her in the School. In his car, her cousin sister was
also there and after seeing her, she also boarded in the car. Instead of taking
her to school, appellant/accused took her towards Ambikapur Road to ‘Sunday
Market’ and when she asked as to where they are being taken her, her cousin
sister has replied that ‘today they will enjoy the car riding and she may go to
School tomorrow’, and despite her protest, they have taken her with them. The
appellant took her to “Ramgarh Hills” and on the way he fed her the cold drink
and in the Ramgarh jungle he committed rap upon her. After committing rape
upon her, he took her to Ambikapur and on the way he further tried to outrage
her modesty and asked her not to disclose the incident to anyone. Thereafter,
he took her to Ambikapur market and purchased a Chappal for her from a shop
and at about 4 pm, he left her near his house and went away. She alongwith
her father had gone to Police Station and lodge a report. In cross-examination,
she admitted that her younger sister is also studied in the same school, having
same school time. She further stated that the appellant has committed rape
upon her inside the car, which was parked inside the Jungle. She did not
remember that as to whether she protested or not at the time of commission of
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rape upon her. She further admitted that she has not received any injuries on
the body and in the shop where they have purchased a chappal, her cousin
sister was also present and other persons were also there in the shop, but she
did not disclose the incident to anyone. She also did not disclose the incident to
her cousin sister because she too is having suspicious character. After the
incident, she went to jail to meet the appellant/accused. She admitted that
appellant is already married and is an employee of South Eastern Coalfields
Limited, which came to her knowledge after the incident. She further admitted
that appellant came to Vishrampur to leave her and her sister. The fact that, in
a car, her cousin sister was also there and on her request, she boarded in the
car, has been disclosed in the police statement, but if it is not there, she could
not tell the reason. She further stated that at the time when the appellant was
taking her towards Ramgarh Jungle, she has not raised any alarm.
19. From the evidence of the victim (PW-6), it appears that she did not
disclose that she made any protest or struggle at the time when she was being
subjected to forceful sexual intercourse by the appellant, even she has not
raised any alarm, when the appellant took her towards Ambikapur Jungle
instead of going to her School. Further, she did not disclose the incident to
anyone in the market where she purchased the chappal, particularly, when her
cousin sister and other persons were present. Even after, she boarded from the
car of her cousin sister, she accompanied with the appellant, went towards
Ambikapur Jungle, made physical relation with him and despite that she again
boarded in the car of the appellant and has not fled away from the place, went
to Market and purchased a chappal and again boarded in the car and came to
her house, which goes to show that she was consenting party in making
physical relation with the appellant and it is against the normal conduct and
behviour of the appellant. Has she been subjected to forceful sexual
intercourse, she would have immediately raised alarm or struggled by giving
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nail scratch mark or teeth bite on the body of the appellant, but she did not do
so. She ought not to have accompanied with the appellant after commission of
rape upon her and she ought to have tried to flee away from the place, but she
silently accompanied with the appellant up to her house and in the facts and
evidence available on record, she cannot be termed as witness of sterling
quality, which is required for holding conviction of the appellant / accused.
20. From all these evidences, it cannot be said that the victim is having a
status of the witness of that sterling quality on which the appellant can be
convicted. The sterling witness has been considered by the Hon’ble Supreme
Court in the matter of Santosh Prasad @ Santosh Kumar v. State of Bihar,
2020 (3) SCC 443, which is reproduced herein below:
“5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an
occasion to consider who can be said to be a “sterling witness”. In
paragraph 22, it is observed and held as under:
“22 In our considered opinion, the “sterling witness” should
be of a very high quality and calibre whose version should,
therefore, be unassailable. The court considering the version
of such witness should be in a position to accept it for its face
value without any hesitation. To test the quality of such a
witness, the status of the witness would be immaterial and
what would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant would
be the consistency of the statement right from the starting
point till the end, namely, at the time when the witness makes
the initial statement and ultimately before the court. It should
be natural and consistent with the case of the prosecution
qua the accused. There should not be any prevarication in
the version of such a witness. The witness should be in a
position to withstand the cross-examination of any length and
howsoever strenuous it may be and under no circumstance
18should 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 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.”
21. Sunita (PW-8) [mother of the victim] had stated in her evidence that when
the victim returned at about 4 pm to her house, she was not feeling well and
upon asking her, she disclosed about the incident. On the next day, when her
husband came from his duty, she informed the incident to him and then the
report has been lodged. In cross-examination, she has stated that her daughter
(victim) has not disclosed that her cousin sister was also there with the
appellant. She further admitted that her daughter has informed her that her
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cousin sister again met her at Ambikapur. Thus, mother of the victim is only the
witness to the effect that she disclosed the incident to her.
22. Father of the victim (PW-7), who is father of the victim, has stated in his
evidence that when he returned back from his duty, his family members have
not disclosed about the incident. He came to know about the incident only after
lodging of the report against the appellant by her daughter. When he declared
hostile by the prosecution, he stated that on the earlier occasion, she could not
understand the question and, therefore, he stated that he did not know about
the incident, he voluntarily stated that when he came to know about the
incident, he has taken her daughter to the police station for lodging of the
report. In cross-examination, he admitted that he had gone to jail to meet the
appellant / accused.
23. Dr. Suchita Nirmala Kindo (PW-10), who medically examined the victim,
has not noticed any external injuries on her body and opined that no definite
opinion can be given regarding forceful sexual intercourse with the prosecutrix,
further there is no FSL report produced by the prosecution, which proves the
presence of sperm and semen of the appellant/accused in the vaginal slides of
the victim. Further, cousin sister of the victim, who was present alongwith her
in the car up to the Ambikapur market, had not been examined by the
prosecution.
24. From all these evidence, this Court does not find any sufficient evidence
against the appellant to uphold his conviction for the alleged offence only on the
basis of evidence of the victim and her parents.
25. The version of the victim commands great respect and acceptability, but
if there are some circumstances which cast some doubt in the mind of the court
on the veracity of the victim’s evidence, then it will not be safe to rely on the said
version of the victim. There is contradiction and omissions in the statement of
the victim and her parents. The law is well settled that in case of rape,
20
conviction can be maintained even on the basis of sole testimony of the victim.
However, there is an important caveat which is that the testimony the victim
must inspire confidence. Even though the testimony of victim is not required to
be corroborated, if her statement is not believable then the accused cannot be
convicted. The prosecution has to bring home charges levelled against the
appellant beyond any reasonable doubt, which prosecution has failed to do in
the instant case.
26. For the forgoing reasons, this Court is of the opinion that the prosecution
has failed to prove its case beyond reasonable doubt against the appellant that
on the date of incident, he kidnapped the victim and committed rape upon her,
thus, the appellant is entitled for benefit of doubt.
27. In the result, the appeal filed by the appellant is allowed. The impugned
judgment of conviction and sentence dated 30.11.2015 is hereby set aside. The
appellant is acquitted of all the charges levelled against him. He is reported to
be on bail, his bonds shall continue for a further period of six months in view of
the provisions of Section 481 of BNSS, 2023.
28. The trial Court record along with a copy of this judgment be sent back
immediately to the trial court concerned for compliance and necessary action.
Sd/-
(Ravindra Kumar Agrawal)
Judge
amita
Digitally signed by AMITA DUBEY
Date: 2025.03.06 11:31:22 +0530
