Dhelu Ram, aged about 30 years, S/o Dhondu Ram Sahu, resident of Village Khubatola v. State Of Chhattisgarh through the District Magistrate, Rajnandgaon
Case Details
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 2 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 3 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
Legal Reasoning
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. 4 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 5 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.
Legal Reasoning
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
Decision
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 6 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. 7 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. 8 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. 9 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 10 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." 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. 11 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 12 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. MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2025.08.28 16:54:13 +0530 Khan Sd/ (Rajani Dubey) Judge