Chattisgarh High Court
Dhelu Ram vs State Of Chhattisgarh on 28 August, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1 2025:CGHC:43613 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on : 30-06-2025 Judgment delivered on : 28-08-2025 CRA No. 696 of 2006 Dhelu Ram, aged about 30 years, S/o Dhondu Ram Sahu, resident of Village Khubatola, Thana Dongargarh, Distt. Rajnandgaon (CG) ... Appellant versus State Of Chhattisgarh through the District Magistrate, Rajnandgaon (CG) ... Respondent
For Appellant : Mr. Siddharth Dubey, Advocate
For Respondent : Ms. Nand Kumari Kashyap, Panel Lawyer
Hon’ble Smt. Justice Rajani Dubey
CAV Judgment
The appellant in this appeal calls in question the legality and
validity of the judgment of conviction and order of sentence dated
28.6.2006 passed by Additional Sessions Judge, Rajnandgaon in ST
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No.73/2005 whereby the appellant stands convicted and sentenced as
under:
Conviction Sentence
Under Section 450 of Indian Penal RI for seven years, pay a fine of
Code. Rs.100/- and in default thereof to
suffer additional SI for 10 days.
Under Section 376 of Indian Penal RI for seven years, pay a fine of
Code. Rs.100/- and in default thereof to
suffer additional SI for 10 days.
Under Section 506(1) of Indian RI for one month.
Penal Code.
All the sentences were directed to run concurrently.
02. Case of the prosecution, in brief, is that about five months prior
to 16.5.2005 when the prosecutrix, a minor girl, was all alone at her
house and was changing her clothes, the accused/appellant came to
her house and enquired about her father. She told him that her father is
not at the house but he forcibly entered the house and committed rape
on her on the threat of life. Three days thereafter he again came to her
house and committed rape on her as a result of which she got
pregnant. When she informed about her pregnancy to the accused, he
told her of getting it aborted and warned her of not disclosing it to
anyone. However, when mother of the prosecutrix returned to the
house from her parental house, looking to the condition of the
prosecutrix she took her to the doctor for treatment where the doctor
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after examination told her about five months pregnancy of the
prosecutrix. Then the prosecutrix narrated the whole incident to her
mother who, in turn, informed the same to her husband and thereafter
a village meeting was convened. FIR (Ex.P/8) was lodged by the
prosecutrix with the police. The prosecutrix and the accused were got
medically examined; spot map was prepared, marksheet, Dakhil-Kharij
register and medical documents of the prosecutrix regarding treatment
of her pregnancy were seized and statements of the witnesses were
recorded. After completing investigation, charge sheet under Sections
376 and 506 of IPC was filed against the accused.
03. Learned trial Court framed charges under Sections 450, 376 and
506(1) of IPC against the accused which were abjured by him and he
prayed for trial. In order to substantiate its case the prosecution
examined 14 witnesses in all. Statement of the accused was recorded
under Section 313 of CrPC wherein he denied all the incriminating
circumstances appearing against him in the prosecution case, pleaded
innocence and false implication. In his defence, he examined one
witness.
04. After hearing counsel for the respective parties and appreciation
of oral and documentary evidence on record, the learned trial Court
convicted and sentenced the accused/appellant as mentioned above.
Hence this appeal.
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05. Learned counsel for the appellant would submit that the
impugned judgment is per se illegal and contrary to the material
available on record. Except Dakhil-Kharij register of the school and
evidence of PW-10 father of the prosecutrix, there is no other evidence
to conclusively prove the age of the prosecutrix. There is no radiologist
report produced by the prosecution. In cross-examination, PW-10 has
failed to explain as to on what basis he stated the date of birth of his
daughter/prosecutrix as 5.3.1990. As per the evidence of PW-12
mother of the prosecutrix, it can safely be inferred that the prosecutrix
was more than 16 years on the date of incident.
06. He would next submit that looking to the evidence of the
prosecutrix, her conduct and the fact that there is inordinate delay of 4-
5 months from the date of incident in lodging the FIR, it is clear that
she was a consenting party to the act of the accused. The prosecution
did not examine independent witnesses Dhaneshwar and Dewangan
whose houses are adjacent to the house of the prosecutrix. The
prosecutrix states that the accused/appellant committed rape on her on
the point of knife but no such weapon was seized from his possession.
There are contradiction and omission in the statements of the
witnesses which makes their evidence doubtful. The prosecutrix kept
mum for more than five months and when the pregnancy was
confirmed by the doctor, the report was lodged against the appellant.
As per statements of Akru, Shivendra, Dalchand, Ladu Kartik and
Dhaneshwar who were allegedly present in the village meeting, the
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appellant on number of occasions confessed his guilt and prayed for
forgiving him but their evidence has not been supported by other
prosecution witnesses who specifically stated that the appellant denied
the allegation.
07. Learned counsel for the appellant also argued that the learned
trial Court did not consider the evidence of defence witness Ramu
(DW-1) properly who states that the prosecutrix informed him that
when she went to the house of her brother-in-law (Jeeja), at around 9
pm she went out of the house to attend the call of nature and at that
time, some unknown person caught hold of her and committed rape on
her as a result of which she got pregnant. The prosecution failed to
produce DNA report in support of its case. He would further submit that
the prosecutrix has stated that on the date of incident, she took bath
due to her menstruation and while changing clothes, the appellant
entered the house and committed rape on her. PW-13 Dr. Seema Jain
has categorically stated that conception does not take place if
intercourse is performed during menstruation. As such, the medical
evidence does not support the prosecution case at all. Thus, the
prosecution has failed to prove its case against the appellant beyond
all reasonable doubt and therefore, the impugned judgment is liable to
be set aside.
08. On the other hand, learned counsel for the State opposing the
contention of the appellant would submit that in view of oral and
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documentary evidence on record, the learned trial Court has rightly
convicted and sentenced the appellant by the impugned judgment
which calls for no interference by this Court. The present appeal being
without any substance is, therefore, liable to be dismissed.
09. Heard learned counsel for the parties and perused the material
available on record.
10. It is clear from the record of learned trial Court that the appellant
was charged under Sections 450, 376 and 506 Part-I of IPC and after
appreciation of oral and documentary evidence, learned trial Court
convicted and sentenced him under these sections as mentioned in the
opening paragraph of this judgment.
11. The prosecutrix (PW-9) states that on the date of incident she
was all alone in the house as her mother and father had gone out. At
that time the accused/appellant came to her house and enquired about
her parents, to which she replied that they are not in the house.
Thereafter, the accused forcibly caught hold of her and committed rape
on her on the point of knife. After five months of the incident when her
mother came back from the village and noticed physical changes in
her, she took her to Dr. Narang who after examination found her
pregnant. Then she disclosed the incident to her parents and
consequently a village meeting was convened where she narrated the
whole incident and the appellant apologized for his act. She states that
after the village meeting, the FIR was lodged.
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In cross-examination she admits that the appellant also used to
go with the villagers for labour work. She denied the suggestion that
she demanded money from the appellant for her abortion and on his
refusal, she falsely implicated him. She admits in para 10 of cross-
examination that had she not conceived, she would not have lodged a
report and then volunteers that if the accused had not done anything
with her, she would not have lodged report. She also admits that till
arrival of her mother, she did not disclose about her pregnancy to the
accused also.
12. From the statement of the prosecutrix it is clear that she was a
consenting party to the act of the accused/appellant. She did not
disclose about the incident to anyone till her pregnancy was noticed by
her mother and confirmed by the doctor.
13. As regards age of the prosecutrix, the prosecution has filed copy
of admission-discharge register Ex.P/7C. PW-8 Goverdhanram
Kunjam, Head Master, states that the prosecutrix was studying in his
school and as per this register, her name is mentioned at S.No.532 and
her date of birth is recorded as 5.3.1990. She was admitted on
1.7.1996 in Class-I and left the school on 20.7.2001. In cross-
examination he admits that this entry is not made by him. He admits
that it is also not mentioned in the register as to on what basis the date
of birth of the student was recorded. He also admits that spelling of
name of the prosecutrix is different in this register.
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14. PW-10 father of the prosecutrix states that date of birth of the
prosecutrix is 5.3.1990 and he brought photocopy of primary school
marksheet of the prosecutrix. He states that at the time of incident she
was about 14 ½ years. In cross-examination he admits that he had five
children, of which two daughters died at the age of 1 ½ years, the date
of birth of the prosecutrix is 5.3.1990 but he does not remember the
date of birth of his other children. PW-12 mother of the prosecutrix also
states that she does not remember the date of birth of the prosecutrix.
15. PW-13 Dr. Seema Jain examined the prosecutrix on 15.5.2005
and found that she was carrying pregnancy of 20 weeks and gave her
report Ex.P/13.
16. Close scrutiny of the evidence makes it clear that the
prosecution filed photocopy of marksheet of the prosecutrix as Ex.P/9C
as also admission-discharge register as Ex.P/7C which records date of
birth of the prosecutrix as 5.3.1990. However, PW-8 Goverdhanram
Kunjam, Head Master of the school, admits that the entry regarding
date of birth of the prosecutrix was not made by him in the said register
and he also does not know as to on what basis this entry was made in
the register. PW-10 father of the prosecutrix brought photocopy of
marksheet of the prosecutrix and on that basis stated the date of her
birth whereas PW-12 mother of the prosecutrix states that she does not
remember the date of birth of the prosecutrix.
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17. The Hon’ble Apex Court in the matter of Alamelu and another
Vs. State, represented by Inspector of Police, (2011) 2 SCC 385
observed in paras 40 & 48 of its judgment as under:
“40.Undoubtedly, the transfer certificate, Ex.P16
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.
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
10admission; 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 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.”
18. In light of above, in the present case it is clear that the
prosecution has failed to prove by leading cogent and reliable evidence
that the prosecutrix was below 18 years of age on the date of incident.
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19. As per statement of PW-13 Dr. Seema Jain when she examined
the prosecutrix on 15.5.2005 she was found to be carrying 20 weeks
pregnancy. Father of the prosecutrix also states that she gave birth to a
male child on 14.9.2005 but no DNA test was conducted by the
prosecution to ascertain the paternity of the child. DW-1 Ramu states
that the prosecutrix told him that in Village-Chiddo someone raped her.
He states that in the village meeting, the accused/appellant told by
swearing on his son that he did not commit rape on the prosecutrix.
Looking to the statement of the prosecutrix it is evident that she did not
disclose about the incident for about five months to anyone and it is
only when her pregnancy was noticed by her mother and the same
was confirmed by the doctor that she disclosed about the act of the
accused/appellant. She also admitted that had she not conceived she
would not have reported the matter to the police. True it is that the sole
statement of a prosecutrix can be sufficient to hold a conviction in
cases of rape or sexual assault if the statement is found to be credible,
inspires confidence, and is free from significant contradictions or
inconsistencies. However, as discussed above, her evidence is not of
such quality as to inspire confidence and prove the guilt of the
appellant. Rather her conduct during the incident and subsequent
thereto suggests that she was a consenting party to the act of the
accused/appellant. Since it has already been held in the preceding
paragraph that the prosecution has failed to prove that she was minor
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on the date of incident, no offence is made out against the
accused/appellant and he deserves to be acquitted of all the charges.
20. In the result, the appeal is allowed and the impugned judgment
of learned trial Court is hereby set aside. The appellant is acquitted of
the charges under Sections 450, 376 and 506 Part-I of IPC.
The appellant is reported to be on bail. However, keeping in view
the provisions of Section 481 of BNSS, 2023 he is directed to furnish a
personal bond for a sum of Rs.25,000/- with one surety in the like
amount before the Court concerned which shall be effective for a
period of six months alongwith an undertaking that in the event of filing
of special leave petition against the instant judgment or for grant of
leave, he shall on receipt of notice thereon appear before the Hon’ble
Supreme Court.
The record of the trial Court along with copy of this judgment
be sent back immediately to the trial Court concerned for compliance
and necessary action. A copy of this judgment be also forwarded to the
concerned Jail Superintendent for information and necessary action.
Sd/ Digitally signed (Rajani Dubey) MOHD by MOHD AKHTAR KHAN AKHTAR Date: KHAN 2025.08.28 16:54:13 +0530 Judge Khan
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