Chattisgarh High Court
Shivshankar Singh Gond vs State Of Chhattisgarh on 14 January, 2025
1
2025:CGHC:2326
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 512 of 2019
1 - Shivshankar Singh Gond S/o Bandhan Singh Aged About 20 Years R/o
Puran Godripara, Chirmiri, Police Station- Chirmiri, District- Korea,
Chhattisgarh., District : Koriya (Baikunthpur), Chhattisgarh
... appellant
versus
1 - State Of Chhattisgarh Through Station House Officer, Police Station-
Sonhat, District- Korea, Chhattisgarh., District : Koriya (Baikunthpur),
Chhattisgarh
... Respondent
For appellant : Mr. Anil Gulati, Advocate
For Res./State : Mr. Atanu Ghosh, Deputy Government Advocate
Hon'ble Shri Justice Ravindra Kumar Agrawal
Judgment on Board
14.01.2025
1. Challenge in this appeal is to the judgment of conviction and order of
sentence dated 31.01.2019 passed by Additional Sessions Judge
(FTC) / Special Judge (Under POCSO Act, 2012), Baikunthpur, District
Koria (C.G.) in Special Criminal Case (under POCSO Act, 2012) No.
23/2017 whereby the appellant has been convicted and sentenced as
under:
Conviction U/S Sentence Fine In default of
payment of
2
Fine
Under Section No separate ....... .......
376 of Indian sentence
Penal Code awarded
Under Section 6 Rigorous Rs. 500/- R.I. for 06
of the Protection imprisonmen months
of Children from t for 10 years
Sexual Offences
Act, 2012
Under Section Rigorous Rs. 500/- Rigorous
363 of Indian imprisonmen imprisonment
Penal Code t for 03 years for 06 months
Under Section Rigorous Rs. 500/- R. I. For 06
366 of Indian imprisonmen months
Penal Code t for 5 years
All the sentences have been directed to run concurrently.
2. Case of the prosecution, in brief, is that on 27.10.2017, a missing report
has been lodged by maternal grand mother (Nani) of the victim (PW02)
to the effect that the victim is missing since 25.10.2017 when she had
gone to market. On search of her whereabouts in the market as well as
her relative’s house, she could not be tressed out. Another boy of the
village has informed her that the appellant had used to meet with the
victim and he raised suspension that she was being kidnapped by the
appellant. On the basis of written report lodged by maternal grand mother
of the victim (PW02), the Police has registered the FIR Ex. P/4 for the
offence under Section 363 of the Indian Penal Code (in short IPC)
against the appellant. During the course of investigation, the victim was
recovered on 28.10.2017 from the house of the appellant and recovery
Panchanama Ex. P/5 was prepared in presence of the witnesses. The
victim was sent for her medical examination to District Hospital,
Baikunthpur where Dr. Swati Bansariya (PW-10) has medically examined
her and gave her report Ex. P/10. While medically examine the victim, the
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doctor has not found any external injuries on her body and has opined
that she is habitual to sexual intercourse. Two slides of her vaginal swab
were prepared, sealed and handed it over to police for its chemical
examination. The victim was also referred for VDRL, HIV, UPT tests.
With respect to age and date of birth of the victim, her mark-sheet of
class 5th has been seized vide seizure memo Ex. P/08. The Police has
seized the School Register from Government Primary School, Tanjara
vide seizure memo Ex. P/14 and after retaining the attested true copy of
School register Ex. P/16C, the original Register Ex.P/16 was returned to
the School. The spot map (Ex.P/1) was prepared by the Patwari and spot
map (Ex. P/11) was prepared by the Police. The appellant was arrested
on 29.10.2017 and he too was sent for medical examination to
Community Health Centre, Sonhat where Dr. R. P Singh (PW05) has
medically examined him and gave his report Ex. P/18. After examination
of the appellant, the doctor has opined that the appellant is able to
perform sexual intercourse. Vaginal slides and pubic hair of the victim
and semen slides and underwear of the appellant were sent for
chemical examination to Regional FSL, Ambikapur from where FSL
report Ex.P/29 was received and according to the FSL report, semen
and sperm were found on the vaginal slides of the victim.
3. The statement of witnesses were recorded under section 161 of Cr.P.C.
Statement of the victim under Section 164 of Cr.P.C. have also been
recorded. After completion of usual investigation, charge sheet was filed
against the appellant for the offence under Section 363, 366, 368 read
with Section 34 and 376(2)(d) of Indian Penal Code and Section 6 of the
Protection of Children from Sexual Offences Act, 2012 (in short “POCSO
Act, 2012“) and against the co-accused – Amar Singh charge sheet was
filed under Section 363,66,368 read with Section 34, 376 (2)(d) read with
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Section 109 of the IPC and Section 6 read with Section 17 of the POCSO
Act, 2012.
4. The Trial Court has framed charges against the appellant namely-
Shivshankar Singh Gond for the offences under Sections 363/34,
366/34, 368/34 and 376(2)(n) of IPC and Section 5 (l)/6 POCSO Act,
2012 whereas the charge against the co-accused namely-Amar Singh for
the offences under Section 363/34, 366/34, 368/34 376 (2) (n)/109 of
IPC and Section 6 read with Section 17 of the POCSO Act, 2012. The
accused persons denied the charges and claimed trial.
5. In order to establish the charges against the accused persons, the
prosecution has examined as many as 13 witnesses. The statements of
appellants were also recorded under section 313 of Cr.P.C. in which they
denied the material appearing against them, plead innocence and
submitted that they are innocent and have falsely been implicated in the
case.
6. After appreciation of oral & documentary evidence available on record,
learned trial court has acquitted the co-accused- Amar Singh from all the
offences but convicted the appellant -Shivshankar Singh Gond and
sentenced him 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 doubts.
There are material omission and contradiction in the evidence of the
prosecution witnesses, which cannot be made basis for his conviction.
There is no sufficient documentary evidence with respect to the age and
date of birth of the victim to prove that she was minor on the date of
incident. The School record produced by the prosecution has not been
proved in accordance with law by examining its author and also the
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basis on which the entries have been made in the school record, has not
been produced. There is no other evidence led by the prosecution to
prove the age of the victim. It is further contended that the victim is a
major girl having love affair with the appellant and she herself eloped with
him on her own free will without raising any objection and engaged in
making consensual physical relation with the appellant without any
protest. She being the consenting party to the act of the appellant and
accompanied with the appellant, they visited place to place without any
complaint, no offence either kidnapping or rape are made out against the
appellant and he is entitled for acquittal.
8. On the other hand, learned counsel for the State while opposing the
arguments advanced by the counsel for the appellant contended that the
prosecution has proved its case beyond reasonable doubt. There are
sufficient material available on the record that the victim was minor on the
date of incident and she was kidnapped and subjected to sexual
intercourse by the appellant which does amount to offence of rape and
the learned trial court after considering the entire evidence available on
record, by the impugned judgment has rightly convicted and sentenced
the appellant which is absolutely justified and needs no interference.
9. I have heard the counsel for the parties and perused the material
available on record.
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 or not.
The prosecution has mainly relied upon the school Register Ex. P/16C
and Ex. P/ 17C, which is sought to be proved by Ramnarayan Singh
(PW-4), who was the Teacher in the school. He stated in his deposition
that he is posted as Teacher Panchayat Grade-III at Primary School
Tanjara. The Police has seized the School Register from him with
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respect to the date of birth of the victim and after retaining the attested
true copy of the School register Ex. P/16C, original School Register
(Ex.P-16) was returned to the school. The Police has also seized
another Register Ex. P/17 and its attested true copy is Ex. P/17C. As
per entries made in the School Register, the date of birth of the victim is
mentioned as 03rd May, 2001 and she left the school on 16.06.2012. In
his cross examination, he admitted that earlier one another Headmaster
was posted in the school. He also admitted that at the time of admission
of the victim in the school, he was not posted there. He also admitted that
with respect to the date of birth certificate of the victim, there is no
document available in the school Register.
11. Ramnarayan Singh (PW04) is not the author of the school Register and
the basis on which the entries has been made in it has also not been
produced by the prosecution.
12. 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,
represented by Inspector of Police, 2011(2) SCC 385, in which 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:-
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“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 and
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
8purpose 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.”
13. 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 9 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
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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.
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.”
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14. 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. 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.
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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
[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.”
15. Reverting to the facts of the present case except the school Register,
there is no other documentary evidence produced by the prosecution to
prove the age of the victim.
16. The victim (PW01) has stated in her evidence that her date of birth is
03.05.2001 and she has passed class 10th examination. In cross-
examination, she stated that she was not in knowledge at the time of
death of her father. After death of her father, her mother has performed
second marriage and she is residing alongwith her grand parents. She
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further stated in her cross-examination that she had her birth certificate,
which was given to the police but she did not know as to whether her
birth certificate is annexed with the case or not.
17. PW02, who is the maternal grand-mother of the victim has stated that
she did not know the date of birth of the victim, but she is aged about 16
years. She stated in her evidence that the victim has got admitted in the
school by her grand-father. She admitted that they have not got prepared
the birth certificate of the victim. She did not know as to whether at the
time of admission of the victim in the school, they have submitted any
document or not. She denied the suggestion that her date of birth is not
recorded in the Kotwari Register.
18. PW03, who is the aunt (Chachi) of the victim, has stated that she did not
know the date of birth of the victim but she is aged about 17-18 years.
She admitted in her cross-examination that the police has not seized any
birth certificate of the victim in her presence.
19. Except from these evidence no other evidences have been produced by
the prosecution to prove the age of the victim. Despite having the birth
certificate as stated by the victim, her birth certificate has not been
seized. As per the evidence of her maternal grand-mother, no birth
certificate has been prepared and her date of birth has also not been
recorded in the Kotwari Register. There is no ossification test conducted
by the prosecution to prove the age of the victim. In absence of any
cogent and clinching evidence, merely on the basis of school Register,
which has not been proved by the prosecution in accordance with law,
age of the victim cannot be determined that she was minor and less than
18 years of age on the date of incident, yet the learned trial Court has
held her minor.
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20. So far as the offence of kidnapping and rape is concerned, I again
examined the evidence of the victim and other witnesses.
21. The victim (PW01) has stated in her evidence that on the date of
incident, the appellant met her at Surajpur, they visited place to place
and stayed at Bus stand at Vishrampur. She stayed alontwith appellant
and his brother and Sister-in-law and their children were also there with
them. On the next day, the police had taken them back. When she
declared hostile and cross-exmined by the prosecution, she admitted that
when the appellant was residing in a rented house, the appellant used to
come to her house and proposed her that he likes her. She also admitted
that he wanted to marry with her. She also admitted that after staying
sometime at Baikunthpur, they came to Vishrampur by Bus and the
appellant took her to his brother’s house. On the next date the police
came there and in between that period the appellant made physical
relation with her thrice. In cross-examination, she further stated that she
has not disclosed the proposal of the appellant to her grand-parents. She
admitted that she had come to Baikunthpur from Sonhat by Bus directly.
The appellant may met her at Surajpur and he called her. She admitted
that they have already exchanged their mobile Numbers and she on her
own will had gone to Bishrampur and no one has pressurized her. She
also admitted that she has not disclosed to co-accused Amar singh about
the present appellant Shivshankar Singh. She further admitted that she
stayed with the family of Amar Singh and she used to go to market
alongwith the family of Amar Singh. She has not made any complaint to
Amar Singh that the appellant has forcefully taken her with him. She
used to talk to the appellant on telephone regularly. She further admitted
that in house of Amar Singh, when the appellant has made physical
relation with her, neither she raised any alarm nor informed the incident
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to anyone in his family. Even, while going to Baikunthpur from Sonhat
and to Bishrampur from Baikunthpur by Bus, neither she has made any
complaint to any passenger of the bus that she was being forcefully
taken by the appellant nor she disclosed about the incident to any of the
neighbour of the Amar Singh.
22. From the evidence of the victim, it is quite vivid that while she had gone
to Sonhat Market alongwith her maternal grand-mother, she eloped with
the appellant on her own will she travelled up to Bishrampur by bus but
has not made any objection and has not made any complaint to any of
the passenger of the bus by which she was travelled. Even in the market,
when she was being taken by the appellant, has not raised any alarm
and had gone with the appellant. While staying at the house of Amar
Singh she has not made any complaint that she was being kidnapped by
the appellant or subjected to forceful sexual intercourse by him and
engaged in making consensual physical relation. The evidence of the
victim is not sufficient to hold the appellant guilty for the alleged offence,
as she is not that sterling quality of the witnesses, which is required for
holding conviction of the accused.
23. In the matter of Santosh Prasad @ Santosh Kumar Vs. State of
Bihar reported in 2020 (3) SCC 443, in paragraph 5.4.2 the Hon’ble
Supreme Court has held as under:-
“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
15
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 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
16
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.”
24. When the victim has not been proved to be minor on the date of incident
and when she herself accompanied with the appellant and has made
physical relation with him on her own will, it cannot be said that she was
being kidnapped/abducted and subjected to forceful intercourse by the
appellant which constitute the offence against the appellant.
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, 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.
17
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. In view of the aforesaid reasons this Court find force in the argument
advanced by the learned counsel for the appellant that no offence are
made out against the appellant and this Court is also in agreement with
the same.
27. In the result, The appeal filed by the appellant is allowed. The appellant
is acquitted from all the offences. The impugned judgment of conviction
and sentences are set aside. The appellant is reported to be on bail. His
bail bond shall continue for further period of six months as provided
under Section 481 of B.N.S.S. 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: 2025.01.28 10:29:14
+0530
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