Shyang, District Korba (C.G.) v. State of Chhattisgarh Through The District
Case Details
1 2025:CGHC:41027-DB NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1212 of 2019 Judgment Reserved on : 23.06.2025 Judgment Delivered on : 14.08.2025 Setram Manjhwar, S/o Santram Manjhwar, aged about 22 years, R/o Rapta, P.S. – Shyang, District Korba (C.G.) ... Appellant versus State of Chhattisgarh Through The District- Magistrate, Korba, District Korba (C.G.) ...Respondent For Appellant. - For Respondent - Mr. Rahul Pathak, Advocate on behalf of Mr. Awadh Tripathi, Advocate. Ms. M. Asha, P.L. Hon'ble Smt. Justice Rajani Dubey & Hon’ble Shri Justice Amitendra Kishore Prasad (C A V Judgment) Per Rajani Dubey, J 1. This appeal is directed against the impugned judgment of 2 conviction and order of sentence dated 04.05.2019 passed by the Additional Sessions Judge, F.T.C./Special Judge (under Protection of Children from Sexual Offences Act, 2012), Korba, District Korba (C.G.) in Special POCSO Case No. 07/2018, whereby and whereunder appellant Setram has been held guilty for commission of offence and keeping in view the provision of Section 42 of the POCSO Act, sentenced as described below :- Conviction Sentence Under Section 6 of POCSO As an alternative punishment as mentioned in Section 42 of the Act. Under Section 376(2)(N) of IPC Under Section 376(2)(I) of IPC Under Section 363 of IPC in default Life imprisonment and fine of Rs.1000/-, of payment of fine amount, to undergo additional R.I. for 01 month. in default Life imprisonment and fine of of Rs.1000/-, payment of fine amount, to undergo additional R.I. for 01 month. R.I. for 07 years and fine of Rs.500/-, in default of fine amount, to undergo additional R.I. for 01 month. Under Section 366(A) of IPC R.I. for 07 years and fine of Rs.500/-, in default of fine amount, to undergo additional R.I. for 01 month. All the sentences were 3 directed to run concurrently. 2. As per the prosecution case, on 02-05-2018, PW-2 - father of prosecutrix, lodged a report in Police Station – Shyang, District Korba (C.G.) to the effect that on 30.04.2018, his minor daughter Prosecutrix (PW-1), aged around 12 years, had gone to somewhere without informing anyone, on which a missing report being No. 02/2018 was registered, which
Facts
was recorded in rojnamcha sanha vide Ex.P-8, and FIR (Ex.P-10) being Crime No.12/2018 was registered against unknown person for the offence punishable under Section 363 of IPC. Based on the information, nazri naksha of the spot was prepared vide Ex.P-11. Mark list of class 5th of the victim/prosecutrix with regard to date of birth was obtained from her father and seized vide Ex.P-3. The said mark list was annexed with the record as Article A-1. During the investigation, on 07.05.2018 at 11.00 AM, victim/prosecutrix was recovered in front of the panch witnesses from the house of one Birichram in village Kantadwari which falls within the jurisdiction of Police Station – Lemru and recovery panchanama was prepared vide Ex.P-2. On the same day, an application for permission to examine genital of prosecutrix was submitted before the SDM, Korba vide Ex.p-12, on which permission was granted. The 4 victim/prosecutrix was sent for medical examination to District Hospital Korba vide Ex.P-13 but the victim/prosecutrix refused for medical examination and a report in Ex.P-7 was prepared accordingly. Copy of the school admission register regarding the date of birth of the victim/prosecutrix was seized from Kanya Ashram Secondary School, Shyang vide seizure memo Ex.P-3. An application (Ex.P-18) for recording the statement of the victim/prosecutrix under Section 164 of Cr.P.C. was submitted before the Chief Judicial Magistrate, Korba, and her statement was got recorded vide Ex.P-1. During investigation, application (Ex.P-4) was sent to Tehsildar Korba for preparing spot map from Patwari, on which the Patwari prepared spot map vide Ex.P-6 and Panchnama vide Ex.P-5. 5. Statements of victim/prosecutrix and other witnesses were recorded in which the fact was revealed that on the date of incident i.e. on 30.04.2018, the appellant forcefully abducted the minor victim/prosecutrix while she was going to the market and kept her in the house of appellant’s uncle in village Kantadwari at night where he established physical relations with her on number of occasions. After their stay in Kantadwari for a few days, the victim was recovered by the police. During the investigation, 5 after being found the involvement of the appellant, he was arrested and arrest memo was prepared vide Ex.P-15 and after completing usual investigation, charge sheet was filed before the jurisdictional Court against the accused/appellant under Sections 363, 376, 366-A of IPC and Section 4 of POCSO Act, 2012. 3. The learned trial Court framed charges against the accused/appellant under Sections 363, 366(A), 376 (2)(n), 376 (2) (i) of IPC and Sections 5 & 6 of POCSO Act, 2012. 4. So as to hold the accused/appellant guilty, the prosecution examined as many as 12 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 5. The trial Court after hearing counsel for the respective parties and considering the material available on record has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, this appeal. 6.
Legal Reasoning
this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P. 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 purpose of determining the age of a party the li Alamelu s, 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 11 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.” 14. In light of Alamelu (supra), in the instant case, the author of the register who had made entry has not been examined by the prosecution and PW-3 denied that she made entry in the Dakhil Kharij Register. As such, the prosecution has failed to prove the age of the prosecutrix below 18 years of age at the time of incident and we set aside the finding of the learned trial Court that the prosecutrix (PW-1) at the time of incident was below 18 years of age. 15. The next question which arises for consideration by this Court whether the Prosecutrix (PW-1) was subjected to forceful sexual intercourse by the appellant after abducting her and the conviction can be made on the sole testimony of the Prosecutrix (PW-1). 16. The Prosecutrix (PW-1) has stated that the appellant is her uncle in relation. On 30th April, when she was going grocery shop for bringing soap, the appellant came, caught hold of her and took her to village at Kantadwari to his uncle’s house. She has stated that she told the appellant that she will not come with her but the appellant did not agree and 12 took her with him saying that he will marry her. She has also stated that the appellant removed her clothes and committed rape with her. In cross-examination, the Prosecutrix (PW-1) has admitted that prior to the incident, the appellant used to come to her house. She has also admitted that prior to the incident, the appellant had not committed any bad act with her. In para 6, she has stated that she does not remember on which date and month she went to buy soap. The day she went to buy soap was Sunday and it was 30th. The shop where she was going to buy soap on the date of incident was not very far from her house. When she was going to buy soap, she did not meet any person on the way. When the appellant took her from near the shop, she screamed but no one came to save her. There was no one at the shop at that time. She has also stated that Kantadwari where the appellant took her was very far from her village. When the appellant was taking her, she did not meet a single person on the way. This witness has admitted this suggestion that there were houses of other people between the shop and her house but she self stated that every one had gone to the forest. The Prosecutrix denied this suggestion that her elder father taught her what to say in the Court. She has stated that she 13 does not know that there was any land dispute between the appellant and her elder father. 17. PW-2 – father of prosecutrix has stated that on the date of incident he had gone to field and his wife had gone her maternal home. The Prosecutrix and her brother were in the house. He has also stated that when he came back to home at around 5.00 PM, the Prosecutrix (PW-1) was not in home. He searched her daughter nearby but could not find her. He has also stated that thereafter he told the elders of the village and also told the village Panch and Patel that his daughter is missing then the villagers, Panch and Patel said to lodge the report in police station then he lodged the report. He has also stated that the police had come to his house after four days of lodging the report and said him that they have to go to appellant’s old village Kantadwari and the police took them in the car. After reaching the appellant’s house at Kantadwari, they found the appellant and the Prosecutrix there, whom they brought back. The police dropped him in his house. 18. Brijram (PW-4) is the uncle of appellant. He has stated that in the month of Jesht, the appellant had come to his house with Prosecutrix of village Rapta and they had stayed for about 04 days. The appellant had told that they both have 14 come with mutual consent. This witness has stated that the appellant had told that he will marry the prosecutrix and he (this witness) did not ask him anything. The prosecution declared this witness hostile and cross-examined him then this witness admitted this suggestion of prosecution that the appellant had said that he has not informed the family members of the prosecutrix, he kidnapped her, will marry her and keep her as his wife. He has also admitted that he had said the appellant and the prosecutrix that they both are minor and they should go back to their home. This witness has also admitted that the appellant and prosecutrix had slept in same room. Thereafter, the police of Police Station Shyang had come to his house and recovered the prosecutrix from his house. He has admitted his signature on recovery panchanama (Ex.P-2). 19. PW-5 is the mother of Prosecutrix. She has stated that on the date of incident she had gone to her maternal home. When she came back to her home next morning, her husband (PW-4) informed that the Prosecutrix had gone to somewhere else. They searched the prosecutrix but could not found, thereafter they filed a report in police station. She has also stated that after 4-5 days of lodging the report, the police had come to their house and took them to village 15 Kantadwari, where after inquiry, they went to the house of appellant’s uncle where the uncle of the appellant told that the prosecutrix is in his home. She has also stated that after preparing recovery panchanama, they took the prosecutrix with them to the house then prosecutrix informed them that when she was going to buy soap, the appellant enticed her and took her to his uncle’s house on the pretext of marriage where he committed sexual intercourse with her. In cross- examination, this witness has admitted that she had not seen that with whom the prosecutrix had gone. 20. Dr. K.B. Sonkar (PW-9) has stated that on 07.05.2019 at around 3.00 PM, the Prosecutrix was brought before her for medical examination by lady constable Jeevan Kanwar. The Doctor has also stated that the prosecutrix (PW-1) did not consent for her genital examination, therefore, her genital/internal examination was not conducted and she gave his report under Ex.P-7. In Ex.P-7, consent of father was written but it was written that the prosecutrix does not want to undergo genital examination. 21. The learned trial Court finds that the prosecutrix has denied for her genital examination but she stated in her statement that the appellant has committed sexual intercourse with her, and on this ground alone, the appellant has been 16 convicted. We have already recorded that the prosecution has utterly failed to prove the age of the prosecutrix that at the time of incident she was below 18 years of age and have set aside the finding of learned trial Court in this regard. When we gave our thoughtful consideration to the evidence of prosecutrix (PW-1), it appears that her conduct was doubtful and she went with the appellant of her own without any protest there-against and her medical examination was not done by the doctor, as such, it could not be proved that the prosecutrix was subjected to forceful sexual intercourse. 22. The High Court of Delhi at New Delhi, in identical case when prosecutrix had refused internal medical examination, held in para 7 of Rachna (supra) as under :- “7. Keeping in view the aforesaid cumulative findings, this Court is of the view that the testimony of the appellant-prosecutrix is unreliable and inspires no confidence and there are compelling reasons for rejecting of her testimony. Further, Section 114A of the Indian Evidence Act, 1872, is not attracted as the factum of sexual intercourse is not proved. There are also various lacunae in the case of the prosecution and the benefit of doubt will have to ensure to the benefit of the accused-respondent No.2. Consequently, the present appeal being 17 bereft of merit, is dismissed.” 23. In the present case also, the prosecutrix (PW-1) had refused for her internal medical examination and looking to the overall evidence of the prosecutrix, her conduct clearly shows that she went with the appellant of her own, stayed in the house of uncle of appellant for about 04 days, slept in same room and came to disposal of the accused/appellant without offering any protest. Further, when she was accompanying the appellant to Kantadwari, she had ample opportunity to raise alarm but she remained calm. Such conduct of the prosecutrix and her statement in not resisting the act of the accused and submitting herself to his disposal speaks in volumes regarding her clear cut consent but the learned trial Court did not appreciate this fact and recorded perverse finding. The prosecution has failed to prove the age of the prosecutrix beyond reasonable doubt. In these circumstances, the appellant is definitely entitled to be acquitted of the charges leveled against him by extending him benefit of doubt. 24.
Arguments
Learned counsel for the appellant submits that the evidence of Prosecutrix (PW-1) does not inspire confidence and trustworthy for the reason that in para 5 of her cross- examination, she has stated that the appellant is her next 6 door neighbour and used to visit her house and he has not done anything with her. Further she had showed her ignorance about the property dispute between the parties. Learned counsel further submits that PW-2 - father of prosecutrix has stated that when his daughter (PW-1) found missing from the house, he lodged the missing report but he has stated that his daughter did not state about the incident. With regard to the age of the prosecutrix, it has been argued by learned counsel that PW-3 Teacher has given the Dakhil Kharij Register (Ex.P-4) but in para 3, she has stated that the entry was not made by her and the same was made by Headmaster and she has stated that the same was got written by the parents of the prosecutrix only on presumptions/guesses, as such, Ex.P-4 also creates doubt and not safe to draw inference that the prosecutrix at the time of incidetn was below 18 years of age. Learned counsel also submits that according to Boridram (PW-4), he was present from where the prosecutrix was recovered, but in para 3, he has stated that he advise the appellant and prosecutrix to go back to their home as they were very young (minor) but they resided in his house for four days, which shows her clear cut consent. Further, PW-5 mother of prosecutrix has not stated specific against the appellant. 7 Learned counsel also submits that medical evidence to constitute the offence under Section 376 is also nil in the present case as the prosecutrix herself refused to get her MLC done. Learned counsel also submits that the learned trial Court did not consider the omission and contradiction in the statement of prosecution witnesses and relying upon the evidence with regard to age, convicted the appellant, which is not at all sustainable. Thus, the impugned judgment of conviction and order of sentence is liable to be set aside. Learned counsel placed reliance on the decision of Hon’ble Apex Court in the matter of Jarnail Singh Vs. State of Haryana reported in AIR 2013 SC 3467, decision of High Court of Delhi at New Delhi in the matter of Smt. Rachna Singh Vs. State and Anr. reported in 2019 SCConLine Del 8519, decision of High Court of Gauhati in the matter of Md. Babu Ali @ Imran Ali Vs. The State of Assam and Anr. [Neutral citation no. GAHC010218832022] . 7. On the other hand, supporting the impugned judgment it has been argued by the State counsel that the conviction of the accused/appellant is strictly in accordance law and there is no infirmity in the same. 8. We have heard learned counsel for the parties and perused the material available on record. 9. It is clear from the record of the learned trial Court that the 8 learned trial Court framed charges against the accused/appellant under Sections 363, 366(A), 376 (2)(n), 376 (2) (i) of IPC and Sections 5 & 6 of POCSO Act, 2012, and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellant under Section the accused/appellant under Sections 366(A), 363, 376(2) (I), 376 (2)(N) of IPC and Section 5 (l) of POCSO Act, 2012. 10. As per the prosecution, the prosecutrix (PW-1) was below 18 years of age and at the time of incident she was aged around 12 years. As per Prosecutrix (PW-1), she was aged about 12 years at the time of incident. PW-2 – the father of prosecutrix has also stated that age of his daughter was 12 years. 11. It is the submission of learned counsel for the appellant that the author of Dakhil Kharij Register (Ex.P-4) who had made the entry with regard to date of birth of the prosecution has not been examined by the prosecution and there is ambiguity in recording her date of birth, as such, the said document is not safe to draw inference that the prosecutrix at the time of incident was below 18 years of age. 12. To sum up this issue, we have gone through the evidence of Smt. Aloniya Toppo (PW-3), Teacher of Kanya Aashram 9 Middle School, Shyang, whio has stated that the police had seized Dakhil Kharij Register vide Ex.P-4 and as per this register, the date of birth of the prosecutrix was 25.11.2005, whose entry was at Sl. No.1150. The prosecutrix was admitted in Class 6 on 02.04.2016. In cross-examination, this witness has admitted that the said entry was made by Headmaster and not by her & she has categorially stated that the parents had brought certificate of middle school on the basis of which the date of birth was recorded. 13. 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 10 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
Decision
In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 04.05.2019 passed by the Additional Sessions Judge (F.T.C.)/Special Court (under POCSO Act), District Korba in Special POCSO 18 Case No. 07/2018 are hereby set aside and the appellant is acquitted of the charges levelled against him by extending him benefit of doubt. The appellant is in jail. He be set at liberty forthwith, if not required in any other case. 25. Keeping in view the provisions of Section 437-A Cr.P.C. (481 of the B.N.S.S.), the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of 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 along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 26. 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/- Sd/- (Rajani Dubey) JUDGE (Amitendra Kishore Prasad) JUDGE pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.08.14 18:11:24 +0530