Chattisgarh High Court
Mahesh Sahu vs State Of Chhattisgarh on 23 January, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
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2025:CGHC:4258
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on: 18-11-2024
Judgment delivered on : 23-01-2025
CRA No. 116 of 2005
Mahesh Sahu S/o Dharmu Sahu, aged 38 years, Occupation
Agriculture & Labour, R/o Village Bhatgaon, P.S. Dhamtari, District
Dhamtari (CG)
...Appellant
versus
The State Of Chhattisgarh through P.S. Dhamtari, District Dhamtari
(CG)
... Respondent
For Appellant : Mr. D.N. Prajapati, Advocate.
For Respondent : Mr. Akhilesh Kumar, Govt. Advocate.
Hon'ble Smt. Justice Rajani Dubey, J
CAV Judgment
The appellant in this appeal is challenging the legality and
validity of the judgment of conviction and order of sentence dated
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28.1.2005 passed by the Additional Sessions Judge, Dhamtari in ST
No.268/2004 whereby he stands convicted and sentenced as under:
Conviction Sentence
Under Section 376(1) of Indian RI for seven years, pay a fine of
Penal Code. Rs.200/- and in default thereof to
suffer additional imprisonment for
one month.
Under Section 450 of Indian Penal RI for three years, pay a fine of
Code. Rs.200/- and in default thereof to
suffer additional imprisonment for
one month.
Both the sentences were directed to run concurrently.
02. Case of the prosecution, in brief, is that on 10.7.2004 the
prosecutrix, aged about 12 years, was at her residence at Village-
Bhatgaon. At around 12 noon the accused/appellant forcibly entered
her house and committed rape upon her on the threat of life. She
informed about the said incident on 13.7.2004 to her father and other
persons and thereafter, on 14.7.2004 FIR was lodged against the
accused under Sections 450, 376 and 506 of IPC. During investigation,
medical examination of the prosecutrix as well as the accused was got
done. The clothes worn by the prosecutrix at the time of incident were
seized vide Ex.P/3. Birth certificate of the prosecutrix was seized vide
Ex.P/4; spot map Ex.P/5 was prepared; clothes of the accused worn at
the time of offence were seized vide Ex.P/6 and Dakhil-Kharij register
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of the school of the prosecutrix was seized vide Ex.P/18. Statements of
the witnesses were recorded and after completing usual investigation,
charge sheet under Sections 376, 450 and 506B of IPC was filed
against the accused. Learned trial Court framed charges under
Sections 376(1), 450 and 506B of IPC against him, to which he abjured
his guilt and prayed for trial.
03. In order to substantiate its case the prosecution examined 15
witnesses. 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.
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 appellant as mentioned above. Hence
this appeal.
05. Learned counsel for the appellants would submit that the
impugned judgment is bad in law, perverse, erroneous and liable to be
set aside. The trial Court should have seen that the prosecution has
failed to prove its case beyond reasonable doubt as the medical report
was found negative and no injury was noticed on the body including
the private parts of the prosecutrix. Moreover, the FIR was lodged with
a delay without any satisfactory explanation therefor. There is no
conclusive and cogent legally admissible evidence regarding age of the
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prosecutrix. In para 4 of her deposition the prosecutrix admits that
Govind (Sarpanch) had told her that she would get Rs.25,000/-, so she
lodged a report. Thus, looking to the conduct of the prosecutrix and the
nature and quality of evidence adduced by the prosecution, conviction
of the appellant is not legally sustainable and he deserves to be
acquitted of all the charges.
06. On the other hand, learned counsel for the State supporting the
impugned judgment submits that the learned trial Court having regard
to the overall evidence on record, oral and documentary, has rightly
convicted and sentenced the appellant by the impugned judgment
which calls for no interference by this Court. Hence the appeal being
without any substance is liable to be dismissed.
07. Heard learned counsel for the parties and perused the material
available on record.
08. It is clear from the record of learned trial Court that the appellant
was charged under Sections 376(1), 450 and 506B of IPC and after
appreciation of oral and documentary evidence, learned trial Court
acquitted him of the charge under Section 506B of IPC and convicted
and sentenced him under Sections 376(1) and 450 of IPC as
mentioned in para 1 of this judgment.
09. PW-1 prosecutrix states that on the date of incident the
accused/appellant entered her room and after removing her clothes
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committed rape upon her on the threat of life. Immediately after the
said incident she informed her parents about it and thereafter, they
went to police station and lodged report against him. In cross-
examination she admits that before giving statement in the Court she
was taken by Dayaram to an advocate and she is making statement as
instructed by that advocate. She also admits that Sarpanch Govind had
told her that if she lodged report, she would get Rs.25,000/-, therefore,
she lodged the report. She also admits in para 5 that somebody had
stolen five hundred rupees of her father from her house and that her
father asked her to lodge a report of this theft.
10. PW-2 father of the prosecutrix states that he was informed by the
prosecutrix that the accused committed rape upon her on the threat of
life. He admits the suggestion of the defence that five hundred rupees
was stolen from his house and so he called the elderly people for their
advice in this matter for lodging a report. He states that the years of
birth of his three children are 1988, 1990 and 1992 respectively but he
does not remember their date of birth. He also admits that today he
has come with one Dayaram who took him to an advocate and that
advocate instructed him. However, he denies the suggestion that
Govind had told that on lodging report they would get Rs.25,000/-.
11. PW-3 Saroj Bai states that her brother informed her that the
accused/appellant has committed rape on the prosecutrix and
therefore, she has to go with the prosecutrix for lodging a report and
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then she along with the prosecutrix and her father went to lodge report.
In cross-examination she states that while giving statement to the
police, she had told the police about asking the prosecutrix outside the
police station regarding the incident but if it is not written in her police
statement, she cannot tell the reason.
12. PW-4 Bhedkumar states that on being called by Sarju, he along
with Ramdhar, Jhadi, Mansa and others went to his house where Sarju
informed them about theft in his house from the chest. When they went
to see the chest, they found the prosecutrix sitting there and seeing
them she started crying. On being asked, she told that the accused
committed rape on her. In cross-examination he states that he had told
the police about prosecutrix sitting there and crying and if it is not
written in his diary statement he cannot tell the reason. He admits that
a village meeting was convened regarding theft committed in the house
of Sarju.
13. PW-6 Dayaram and PW-9 Jhadiram state that Sarju informed
them about theft in his house and when they went to his house, the
prosecutrix informed them about rape committed by the accused. They
admit that a village meeting was convened regarding the theft.
14. PW-15 Dr. Smt. Jaya Phuljhele examined the prosecutrix and
did not notice any internal or external injury on her body, her hymen
was old torn and in her opinion, she was habitual to sexual intercourse.
Her report is Ex.P/21.
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15. PW-14 Ramji Dhruv, Head Master, states that as per Dakhil-
kharij register of the school (Ex.P/19), date of birth of the prosecutrix is
4.6.1990 and he gave birth certificate of Ex.P/20 to the prosecutrix on
the basis of entry made in the said register. In cross-examination he
admits that entry made in Ex.P/19 is not in his handwriting. He also
admits that he has no knowledge as to on what basis the said date of
birth 4.6.1990 was entered in the register.
16. 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:-
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“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 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.”
17. The Supreme Court in the matter of Manak Chand alias Mani
vs. State of Haryana, 2023 SCC Online SC 1397 has reiterated the
law laid down by it in the matter of Birad Mal Singhvi vs. Anand
Purohit, 1988 (Supl.) SCC 604 and observed that the date of birth in
the register of the school would not have any evidentiary value without
the testimony of the person making the entry or the person who gave
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the date of birth. It was further reiterated that if the date of birth is
disclosed by the parents, it would have some evidentiary value but in
absence the same cannot be relied upon. For sake of brevity para No.
14 & 15 of the judgment are reproduced hereunder:-
“14 This Court in Birad Mal Singhvi v. Anand Purohit (1988)
Supp SCC 604 had observed that the date of birth in the
register of a school would not have any evidentiary value
without the testimony of the person making the entry or the
person who gave the date of birth.
“14…. The date of birth mentioned in the scholar’s
register has no evidentiary value unless the person who
made the entry or who gave the date of birth is
examined. The entry contained in the admission form or
in the scholar’s register must be shown to be made on
the basis of information given by the parents or a person
having special knowledge about the date of birth of the
person concerned. If the entry in the scholar’s register
regarding date of birth is made on the basis of
information given by parents, the entry would have
evidentiary value but if it is given by a stranger or by
someone else who had no special means of knowledge
of the date of birth such an entry will have no evidentiary
value.”
15. In our opinion, the proof submitted by the prosecution with
regard to the age of the prosecutrix in the form of the school
register was not sufficient to arrive at a finding that the
prosecutrix was less than sixteen years of age, especially
when there were contradictory evidences before the Trial
Court as to the age of the prosecutrix. It was neither safe nor
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fair to convict the accused, particularly when the age of the
prosecutrix was such a crucial factor in the case.”
18. Learned trial Court merely on the basis of school certificate
found that the prosecutrix is below 16 years of age on the date of
incident. However, in light of aforesaid decisions of the Hon’ble
Supreme Court, such finding cannot be sustained. There is no such
clinching and legally admissible evidence brought on record by the
prosecution to prove the fact that the prosecutrix was minor on the date
of incident. Though Dakhil-Kharij registered has been produced by the
prosecution but author of the entry made in the said register regarding
date of birth of the prosecutrix has not been examined. There is no
evidence to show as to on what basis the said date of birth was
entered in this register. Despite being advised by PW-15 Dr. Smt. Jaya
Phuljhele for x-ray of the prosecutrix to determine her age, no medical
examination of her was got done by the prosecution for determining
her age. Thus, it is clear that the prosecution has failed to prove the
fact that at the time of incident the prosecutrix was minor.
19. So far as the offence of rape is concerned, in her cross-
examination the prosecutrix admits that she lodged report at the
instance of Sarpanch Govind who told her that if she lodged report she
would get Rs.25,000/-. She also admits that they had gone to lodge
report of theft and further admits that before going to the Court for her
evidence, she along with father met an advocate who instructed them.
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20. In the case of State (Govt. of NCT of Delhi) Vs. Pankaj
Choudhary (2019) 11 SCC 575, it is observed and held by the Hon’ble
Supreme Court that conviction of the accused can be based on the
sole testimony of the prosecutrix without any corroboration provided it
inspires confidence of the Court and the same cannot be doubted by
the Court merely on the basis of presumptions and surmises.
21. In the matter of Krishan Kumar Malik Vs. State of Haryana,
(2011) 7 SCC 130, the Hon’ble Supreme Court held that to hold an
accused guilty for commission of an offence of rape, the solitary
evidence of prosecutrix is sufficient provided the same inspires
confidence and appears to be absolutely trustworthy, unblemished and
should be of sterling quality.
22. Having gone through the oral and documentary evidence on
record, it is seen that there is no eyewitness to the incident. All the
witnesses have stated that they were informed by the prosecutrix about
commission of rape by the accused. However, medical evidence does
not support the version of the prosecutrix. There are omission and
improvement in the statements of the witnesses including the
prosecutrix. It has come in the evidence of the witnesses that theft was
committed in the house of father of the prosecutrix, for which a village
meeting was also convened and they went to lodge report. The
prosecutrix also admits that as the Sarpanch had told her that if she
lodged report, she would get Rs.25,000/-, hence she lodged the report
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whereas her father had asked her to lodge report of theft. Thus, close
scrutiny of the overall evidence makes it clear that the prosecution has
miserably failed to prove its case against the appellant beyond
reasonable doubt. The evidence of the prosecutrix is not of sterling
quality which can be made basis of conviction of the appellant. Being
so, conviction of the appellant under Sections 376(1) and 450 of IPC
recorded by learned trial Court is not legally sustainable and liable to
be set aside and the appellant deserves to be acquitted of all the
charges by giving him benefit of doubt.
23. In the result, the appeal is allowed. The impugned judgment of
learned trial Court is hereby set aside. The appellant is acquitted of the
charges under Sections 376(1) and 450 of IPC by extending him
benefit of doubt. He is reported to be on bail, therefore, his bail bonds
shall remain in operation for a period of six months from today in view
of provisions of Section 437A of CrPC.
Sd/
(Rajani Dubey)
Judge
Digitally
MOHD signed by
AKHTAR MOHD
KHAN AKHTAR
KHAN
Khan
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