Gariyabandh, Chhattisgarh v. State Of Chhattisgarh Through Police Station Gariyabandh, District
Case Details
1 CRA No. 819 of 2024 RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.06.26 17:52:08 +0530 2025:CGHC:27644-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 819 of 2024 Jivrakhan @ Chotu S/o Late Pardesi Kashyap Aged About 22 Years R/o Near Bajrang Temple Gow Mata Chouk Talab Para Gram Sadhauli, Police Station- Gariyabandh, District- Gariyabandh, Chhattisgarh. Appellant(s) versus State Of Chhattisgarh Through Police Station Gariyabandh, District- Gariyabandh, Chhattisgarh. Respondent(s) (Cause title is taken from Case Information System) For Appellants For Respondent/State : Mr. Rohit Sharma, Advocate : Mr. Shaqib Ahmed, PL Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per, Bibhu Datta Guru, Judge 25/06/2025 Heard. 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 22/12/2023 passed in POCSO Case No. 10/2020 by the learned 2 CRA No. 819 of 2024 Additional Sessions Judge (FTC) (POCSO Act), Gariyaband, District Gariyaband (C.G.), whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 363 of the IPC U/s 366 of the IPC U/s 06 of POCSO Act R.I. for 02 years and fine amount of Rs. 1000/-, with default stipulation. R.I. for 05 years and fine amount of Rs. 2000/-, with default stipulation. R.I. for 20 years with fine of Rs. 5000/-, with default stipulation. All the sentences were directed to run concurrently. 2. Case of the prosecution in brief is that father of the Victim lodged a written report at Police Station inter-alia that the Victim (PW1) who is aged 14 years 07 months 20 days was allured by the accused Jivrakhan alias Chhotu Kashyap (henceforth ‘the Appellant’) on 21/03/2020 at around 08:00 pm from the house of Domar Sandilya and took her to the field near the Tendu tree and forcefully made physical relations with her daughter (the Victim), he also alleged that earlier also the Victim has told that the appellant had made physical relation with her during Holi festival. On this report, a crime was registered and investigation was carried on. During further investigation, when the victim was questioned at the time of the incident, she told that the accused had established physical relations with her many times. The victim's panties were 3 CRA No. 819 of 2024 seized and consent was obtained for the examination of the victim's private parts and the examination was done by the female medical officer of the District hospital Gariaband. Further, the underwear worn by the appellant on the date of the incident was seized and tested by a doctor. On finding sufficient evidence against the appellant, the accused was duly arrested. During medical examination, the doctor sent the vaginal slide and panties of the victim and the underwear of the accused to FSL Raipur for forensic examination. Subsequently, statement of the victim was recorded under section 164 of the IPC. The birth certificate and the Dakhal Kharij register regarding the age of the victim were seized, and on finding sufficient evidence against the accused, charge sheet number 63/2020 was presented. The seized articles were sent for FSL examination, thereafter, statements of the witnesses were recorded. After completing the investigation, a charge-sheet was submitted before the Court. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. 3. In order to bring home the offence, the prosecution has examined 10 witnesses in its support and exhibited documents (Ex.P/1 to Ex.P/30). Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 4. The trial Court after appreciating oral and documentary evidence 4 CRA No. 819 of 2024 available on record, by its judgment dated 22/12/2023 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that appellant has been falsely implicated in this case, he has not committed any offence as alleged against him. The conviction is based on assumption and presumption. The prosecution has completely failed to prove its case beyond reasonable doubt. There are material contradictions and omissions in the statement/deposition of the prosecution witnesses. Hence, the conviction of the appellant is bad in law and is liable to be set-aside. 6. Learned State Counsel opposes the submission of counsel for the appellants and would submit that there is sufficient evidence against
Facts
the appellant and the trial Court has rightly appreciated the evidence, which does not require any interference. 7. We have heard learned counsel for the parties and perused the record with utmost circumspection. 8. The first question for consideration arises whether the prosecutrix was minor on the date of incident or not? 9. In Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263, the Hon’ble Supreme Court laid down the guiding principles for determining the age of a child, which read as follows: 5 CRA No. 819 of 2024 “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under : “12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the
Legal Reasoning
juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; 6 CRA No. 819 of 2024 (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; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of 7 CRA No. 819 of 2024 juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also
Decision
apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub- rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), 8 CRA No. 819 of 2024 an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.” 10. In the present case, as per the case of the prosecution, the date of birth of the Victim is 02/08/2005. To substantiate this fact, the prosecution has brought on Admission-Discharge Register (Article-1) and Birth Certificate (Article-B). Smt. Gayatri Netam, Assistant Teacher has been examined as PW2. She in her Court’s statement has categorically stated that as per entry made in Dakhil Kharij Register (Article-A) at serial No. 1630, the date of birth of the Victim is 02/08/2005. Further 9 CRA No. 819 of 2024 as per the birth certificate which was issued on 01/01/2018, the date of birth of the Victim (PW1) is 02/08/2005. 11. The prosecutrix (PW1) in her Court statement has stated that she was born in the year 2005. Mother (PW8) of the Victim (PW1) has deposed that her daughter (PW1) was aged about 16-17 years on the date of incident. 12. After considering the above statements, particularly the birth certificate of the victim and evidence on record, it is duly proved that the Victim (PW1) on the date of incident was minor and below the 18 years of age. The defence has not presented any oral or documentary evidence to refutes the said date of birth, therefore, there is no reason to disbelieve the date of birth of the Victim as 02/08/2005. 13. The next question for consideration arises whether the appellant had committed rape with the prosecutrix or not?. 14. The Supreme Court in the matter of Rai Sandeep alias Deenu v. State (NCT of Delhi), 2012 (8) SCC 21 held as under:- “22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber 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 10 CRA No. 819 of 2024 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 everyone 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 similar such tests to be applied, it can 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 recise, the version of the 11 CRA No. 819 of 2024 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.” 15. Also, the Supreme Court in the matter of State of Maharashtra vs Chandraprakash Kewal Chand Jain, 1990 SCC 550 held as under:- “A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or practice incorporated in the Indian Evidence Act, 1872 (in short ‘Evidence Act’) similar to illustration (b) to Section 114 which requires it to look for 12 CRA No. 819 of 2024 corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.” 16. Reverting to the facts of the present case, as per the evidence of the Victim (PW1), that on the date of incident when she had gone to the house of Domar for washing the utensils, the appellant was standing near the Badi who dragged her towards the field and committed forcible sexual intercourse with her. She also stated that prior to the incident also, the appellant, once, had committed forcible sexual intercourse with her. Subsequently, the report was lodged. 17. Mother (PW8) of the prosecutrix has deposed in his statement that they were gone for work for about two months at Vishrampur and after returning when they saw the stomach of the prosecutrix was swollen, 13 CRA No. 819 of 2024 then the prosecutrix narrated the entire evidence to him. Subsequently, they lodged the report. 18. Dr. Nisha Navrathna (PW3) has medically examined the Victim (PW1) and opined that the hymen of the victim was ruptured and there was redness and the Victim was feeling pain. She gave opinion that there was possibility of rape with the Victim. 19. The FSL report in the instant case is Ex.P/30. As per FSL report, there was human sperm present over Article-A i.e. slides of the Victim, Article-B i.e. panty of the Victim and Article-C i.e. underwear of the appellant. The FSL report is positive. 20. The law is well settled that the prosecutrix is a Victim of, and not an accomplice in, a sex offence and there is no provision in the Evidence Act requiring corroboration in material particulars of the evidence of the prosecutrix as is in the case of evidence of accomplice. (See: Ganga Singh v. State of M.P., (2013) 7SCC 178) 21. Considering the entire evidence available on record and the facts and circumstances of the case, it would be safe for this Court to hold that the appellant has committed rape upon her which is evident from the statement of doctor. 22. For the foregoing discussions, this Court is of the opinion that the prosecution has fully proved its case beyond reasonable doubts and the appellant has been found guilty of the offence. Therefore, the conviction as awarded by the trial Court to the appellant under 14 CRA No. 819 of 2024 Sections 363 & 366 of the IPC and Section 6 of POCSO Act is hereby upheld. 23. Accordingly, this Criminal Appeal is dismissed. 24. It is stated that the appellant is in jail, he shall serve out the remaining sentence. 25. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 26. Let a copy of this judgment and the original record be transmitted to the Trial Court concerned for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) Judge (Ramesh Sinha) Chief Justice Rahul/Gowri