• Man Singh S/o Prasadi Gond, aged 21 years, resident of village Jhanjhar-Kera P.S v. • The State of Chhattisgarh through the District Magistrate Dhamtari
Case Details
1 2025:CGHC:15154 NAFR PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.04.02 17:06:50 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 448 of 2005 • Man Singh S/o Prasadi Gond, aged 21 years, resident of village Jhanjhar-Kera P.S. Magarload, District Dhamtari (C.G.) ... Appellant versus • The State of Chhattisgarh through the District Magistrate Dhamtari (C.G.) ... Respondent For Appellant : Ms. Indira Tripathi, Advocate For Respondent/State : Ms. M. Asha, PL
Legal Reasoning
Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board 28/03/2025 1. This Appeal has been filed by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) against the judgment dated 28.04.2005 passed by the Additional Sessions Judge Dhamtari, Session Division Raipur (C.G.) in Sessions Trial 2 No.201/2004. 2. By the judgment impugned, the appellant has been convicted for commission of offence under Section 376(1) of the Indian Penal Code, 1860 (for short, “IPC”) and sentenced to undergo RI for 7 years and to pay a fine of Rs.100/-, in default of payment of fine to further undergo RI for 1 month. 3. The case of the prosecution, in a nutshell, is that the appellant committed sexual intercourse with the prosecutrix (PW-2) on the pretext of marriage on or before 21.04.2004 at Village Jhanjhar-Kera and also threatened for dire consequences. The appellant was engaged with another woman for marriage. The incident was reported at the Police Station Magarload, upon which the First Information Report (Ex.P/3) was lodged. The investigation was set in motion. The prosecutrix was medically examined. Documents with regard to date of birth were seized and statements of the witnesses were recorded. After completion of the investigation, the charge sheet was filed before the Judicial Magistrate, First Class, Dhamtari, who committed the case to the Sessions Judge Raipur and the case was made over to the trial Court for trial. The appellant was charged for an offence punishable under Section 376(1) of the IPC. However, he denied the charge framed against him and claimed to be tried. 4. The prosecution, in order to prove its case, examined as many as 12 witnesses and exhibited 17 documents. The appellant examined one defence witness in his support. The statement of the appellant under 3 Section 313 of the Cr.P.C. was also recorded wherein he pleaded innocence and false implication in the case. 5. By the impugned judgment, the trial Court relying upon the statement of the prosecutrix, convicted and sentenced the appellant as mentioned in previous paragraphs of this judgment. 6. Ms. Indira Tripathi, learned counsel for the appellant, argued that the impugned judgment is patently erroneous, contrary to the facts and circumstances and evidence brought on record and is bad in law. She submits that the trial Court failed to appreciate the evidence material brought before it in its proper perspective to sustain the conviction of the appellant. She further submits that according to the case of the prosecution, the alleged incident had taken place prior to 3 years of date of lodging of the FIR i.e. 21.04.2004, whereas the prosecutrix (PW-2) did not disclose the fact to anyone and after the lapse of about 3 years, her allegations regarding commission of the forcible intercourse by the appellant twice cannot be sustained to scrutiny of this Court. She would submit that the age of the prosecutrix could not be proved beyond reasonable doubt by the prosecution. She would further submit that though the Scholars Register exhibited indicated the date of birth of the prosecutrix (PW-2) as 01.10.1989, the witness (PW-9) clearly stated that the said Register (Ex.P/9) was not prepared by him and he has only put his signature. Apart from this, she submits that there is nothing on record to suggest as to on what basis the entry was made in the Scholars Register. From reading of the statement of father of the prosecutrix (PW-1), it appears that father of the prosecutrix was more than 40 years 4 of age and he was married when he was aged about 16 years and after 4 years at the interval of one and half year, 3 children were born. In light of this, if the 1st child was born at the age of 20, the prosecutrix would have been born at the age of 23 years, therefore, by any stretch of imagination she could be more than 16 years on the date of the lodging of the FIR. She further submits that the defence witness (DW-1), who is the Kotwar of the village, has clearly stated that in the Kotwari Register, the date of birth of the prosecutrix was mentioned as 1987 which was wrongly disbelieved by the trial Court. Apart from this, the medical evidence does not support the case of the prosecution and the Doctor has categorically opined that it cannot be said that she was subjected to recent sexual intercourse and she is habitual to sexual intercourse. She further goes on to submit that the second incident of forcible intercourse that was informed by the prosecutrix to one of her friend namely, Malti, who was not examined. Reading from the evidence of PW-1, she submits that prosecutrix was one sided in love with the appellant and when the marriage of the appellant was fixed somewhere else, she consumed poison and later on stated the above story in order to falsely implicate the appellant. She places reliance upon the judgment of the Hon’ble Supreme Court in the case of Karan Alias Fatiya vs. State of Madhya Pradesh, (2023) 5 SCC 504, (paragraph 10) and also upon the judgment passed by the Allahabad High Court in the matter of Vishwanath Ahirwar vs. State of U.P passed in CRA No.323/2021 on 27.04.2023, to submit that as the age of the prosecutrix was not proved, there is delay in lodging the FIR, the prosecutrix’s medical report does 5 not support the case of the prosecution and apparently there was some love relationship between the parties and when the love relationship did not materialise into marriage, a false report was made. In these circumstances, she submits that the Appeal may be allowed and the appellant may be acquitted of all the charges. 7. Per contra, learned counsel for the State vehemently opposes the submissions. She submits that from the very beginning, the case of the prosecution is that the minor prosecutrix was subjected to forcible intercourse by the appellant twice 3 years prior to the lodging of the FIR on the pretext of marriage. She submits that the age of the prosecutrix was duly proved by examining PW-9 and exhibiting the Scholars Register (Ex.P/9). Even otherwise, if on the date of lodging of the FIR, the prosecutrix was found to be more than 16 years old, her statement clearly states that the sexual intercourse was committed twice by the appellant 3 years prior to that on the false pretext of marriage. Therefore, it cannot be said that the prosecution was not able to prove the guilt of the appellant beyond reasonable doubt. She further submits that the appellant gave a false assurance of marriage, which he later retracted, resulting in consumption of poison by the prosecutrix and after she was cured, the entire incident was narrated by her to her father (PW-1) and she has also deposed the same in her court’s statement, therefore, her statement is credible and inspires confidence even if the medical evidence may not support the case of the prosecution. However, from the statement of the prosecutrix, the conviction can be sustained 6 and the delay in lodging the FIR may not always be fatal to the prosecution, therefore, the Appeal is liable to be dismissed. 8. Heard learned counsel for parties and perused the record. 9. It is well settled proposition of law that if the statement of the prosecutrix inspires confidence, conviction of sentence can be sustained on the basis of sole testimony of the prosecutrix. This legal position is no longer res integra in view of the decision of the Hon’ble Supreme Court in the case of Sham Singh vs. State of Haryana reported in (2018) 18 SCC 34, State (NCT of Delhi) vs. Pankaj Chaudhary and ors. reported in (2019) 11 SCC 575 and Phool Singh vs. State of Madhya Pradesh reported in (2022) 2 SCC 74. 10.Here in this case, the prosecutrix was examined as PW-2. She has categorically stated in examination-in-chief with regard to the commission of sexual intercourse on the pretext of marriage 3 years prior to the lodging of the FIR (Ex.P/3). 11.In order to prove the age of the prosecutrix, the prosecution has examined B.R. Bhosle (PW-9), Principal of the school. According to this witness, the date of birth of the prosecutrix is recorded in the Scholars Register as 01.10.1989 (Ex.P/9). In cross-examination, he states that the entry was not made after seeing the Kotwari Birth Certificate, the entry made in this exhibit was not written by him and he has only put his signature. From the statement of this witness, it is not clear as to how the entry in this Scholars Register and the certificate (Ex.P/9) was made. The father of the prosecutrix (PW-1) clearly states that her daughter is aged about 14 years and he does not know the date of birth. In his cross- 7 examination, he says that his age could be more than 40 years and cannot be less than 40 years. He stated that he was married at the age of 16-17 years and he was not blessed with any child for 4 years and thereafter, after a gap of one and a half years, 3 children were born. The prosecutrix (PW-2) is the second daughter. There is no ossification report of the prosecutrix. In order to prove the age, appellant has examined the Kotwar of the village (DW-1). He has deposed that he is working as Kotwar for the last 21 years. He used to prepare report with regard to the date of birth and the resident of the village and used to give report to the Police Station. He prepared the report when the children were in the house of father of the prosecutrix (Ex.D/1), according to which the date of birth of the prosecutrix is 1987. In the cross-examination, he deposed that the Register should be deposited to the Police within 2-3 years and he does not know as to why he has not deposited the Register within 2-3 years. He has not personally written the date of birth of the prosecutrix in the Register. 12.The trial Court did not believe these witnesses and on the basis of the Scholars Register and the statement of the other witnesses, considered the prosecutrix to be less than 16 years old. The question that comes before this Court is as to whether under the prevailing evidence available on record, the prosecutrix could be found to be less than 16 years old. 13.In Alamelu and another Vs. State represented by Inspector of Police, (2011) 2 SCC 385, the Hon’ble Supreme Court held as under:- “9. that the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence 8 u/s 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix 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.” 14.In light of above principle of law, particularly when the prosecution, by cogent and prudent evidence, could not prove the age of the prosecutrix and there is no ossification test and the entry made in the Scholars Register could not be proved in accordance with law and the different persons i.e. PW-1 and PW-2 giving different dates, are not aware of the date of birth, it would not be safe to hold that the prosecutrix was less than 16 years of age at the time of the incident. 15.The next question that comes for determination before this Court is as to whether the conviction can be sustained on the solitary statement of the prosecutrix. Though the prosecutrix in her examination-in-chief has categorically stated that 3 years prior to the date of filing of the FIR, she was subjected to rape on the pretext of marriage and after one week, she was again called by the appellant to the house of her friend, Malti (non- examined) and there also on the pretext of marriage, she was subjected to sexual intercourse, however, some letters have been seized, according to which it appears that some cordial relationship exists between the prosecutrix and the appellant. As the age of the prosecutrix could not be proved and of course, every time the delay in lodging the FIR cannot be 9 said to be fatal to the prosecution, but in the case in hand, she simply said about 3 years, not a particular date, year, or month on which the said incident occurred. Apart from this, the second incident was said to have been committed in the house of the friend of the prosecutrix, Malti, but for the reason best known to the prosecution, she was not examined. The medical evidence also does not disclose as to whether she was subjected to forcible sexual intercourse. Considering all aspects of the matter and also relying upon the aforesaid judgment, this Court is of the opinion that the appellant deserves to be acquitted of the charge leveled against him by extending benefit of doubt. 16.In the result, the Appeal is allowed. The conviction and sentence imposed upon the appellant under Section 376(1) of the IPC are set aside by extending the benefit of doubt to the appellant. The appellant is on bail. His bail bonds shall remain in operation for a period of six months in view of provisions contained under Section 481 of the BNSS Act. 17.Record with copy of this judgment be sent to learned trial Court. Sd/- (Sachin Singh Rajput) Judge Priyanka