Nafr High Court
Case Details
1 2025:CGHC:32890-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1582 of 2016 Narayan Yadav S/o Sitaram Yadav, Aged About 22 Years R/o Village Bhasera, Police Station Fingeshwar, District Gariyaband Wrongly Mentioned As District Raipur Chhattisgarh., Chhattisgarh versus ... Appellant State Of Chhattisgarh Through Station House Officer, Police Station Fingeshwar, District Gariyaband, Chhattisgarh., Chhattisgarh ... Respondent For Appellant : Mr. Aman Kesharwani, Advocate For Respondent/State : Mr. Afroz Khan, P.L. DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board 15.07.2025 Sachin Singh Rajput, J. 1. This appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) has been filed by the appellant, assailing the legality, validity and judicial propriety of conviction and order of sentence dated 07.11.2016 passed by the learned Special Judge, Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989, Raipur (C.G.) (for short trial Court) in Special Session Trial No.19/2015 by which learned trial Court has held the appellant guilty of commission of offence and sentenced as described below - 2 Conviction Sentence Awarded U/s 363 Part-I of Indian Penal Code. R.I. for 2 years and fine of Rs. 500/-, in default of payment of fine amount, to undergo additional R.I. for one month. U/s 366 of Indian Penal Code. U/s 376 of Indian Penal Code. R.I. for 3 years and fine of Rs. 1,000/-, in default of payment of fine amount, to undergo additional R.I. for two months. R.I. for 10 years and fine of Rs. 1,000/-, in default of payment of fine amount, to undergo additional R.I. for two months. U/s (3) (1) (XII) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989. R.I. for 3 years and fine of Rs. 1,000/-, in default of payment of fine amount, to undergo additional R.I. for two months. U/s (3) (2) (v) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989. For life imprisonment and fine of Rs. 1,000/- in default of payment of fine amount, to undergo additional R.I.for two months. All the sentences have been directed to run concurrently. 2. Case of the prosecution, in brief, is that on 09.03.2015, a missing report was lodged by the complainant PW-7 (the father of the prosecutrix), at police station – Fingeshwar District Gariyaband, (C.G.). It was alleged therein that his daughter had gone missing from 21.02.2015. During the course of enquiry, the complainant further disclosed that the appellant used to frequently visit Village Bhasera to meet his mother and during this period, the appellant and the prosecutrix became familiar to each other. It was alleged that 3 the appellant, despite being aware of the caste of the prosecutrix (PW-6), lured her on the pretext of marriage and developed a physical relationship with her at a nursery. Thereafter, on the date of alleged incident, the appellant is said to have taken the prosecutrix to Raipur. Acting on the said report, the police initiated investigation and succeeded in tracing the prosecutrix from the custody of the appellant at Raipur. She was subjected to medical examination, and her statement under Section 164 of the CrPC was recorded before the Magistrate. On the basis of prosecutrix’s statement and other
Facts
evidence, FIR Ex.P/18 was registered against the appellant for the aforementioned offences, and the appellant was taken into custody. 3. After completion of the investigation charge-sheet was filed for the aforesaid offences followed by framing of charge accordingly. The accused-appellant however denied the charge and claimed trial. 4. Prosecution in order to prove its case examined total 11 witnesses as well as exhibited 29 documents. Statement of the accused- appellant under Section 313 CrPC was also recorded in which he pleaded his innocence and false implication in this case. 5. Upon appreciation of the evidence on record, the learned Trial Court has convicted and sentenced the accused-appellant as described above. Hence, this appeal. 7. Learned counsel for the appellant vehemently contended that in her cross-examination, the prosecutrix PW-6 admitted to have been in contact with the appellant prior to the alleged incident and used to 4 meet him at a nursery where physical relations were established on multiple occasions without any protest on her part. He submits that the prosecution failed to produce any cogent documentary evidence, such as a birth certificate or Kotwar Register, to establish that the prosecutrix PW-6 was a minor on the date of the incident. No radiological report was filed to determine her age. He submits that the prosecutrix had voluntarily accompanied the appellant to Raipur by bus, and during her 20-day stay with him, she neither raised any objection nor attempted to escape or seek help. Dr. Divya Kudeshiya (PW-4) deposed that no injuries were found on her body or private parts and opined that she was habitual to sexual intercourse. He submits that looking to the act of the prosecutrix where she had been with the appellant-accused for a considerable long time without any disclosure to anyone, it can safely be inferred that she was a consenting party to the sexual intercourse by the appellant and being so conviction under Section 376 IPC is unsustainable in law. He further submits that the prosecution neither proved that the appellant was aware of the prosecutrix’s caste nor led reliable evidence to establish that she belonged to a Scheduled Caste. He submits that the prosecution failed to prove its case beyond reasonable doubt and that material inconsistencies and lack of corroboration, therefore, he prayed that the appellant deserves to be acquitted from all charges against him. To bolster his submissions, learned counsel placed reliance on the judgment of the Division
Legal Reasoning
Bench of this Court in case of Mangat Nag Vs. State of C.G. passed in CRA No. 323 of 2017 judgment dated 18.01.2024 in which the 5 Division Bench has set aside the conviction and sentence of the appellant under Section 3(2)(v) of the SC/ST Act. However, the conviction and sentence imposed under Sections 363, 366, 376 of the IPC and Section 6 of the POCSO Act, has been affirmed. 8. Learned State Counsel, per contra, would submit that the prosecution has duly established the guilt of the appellant beyond reasonable doubt. He would further contend that, in view of the consistent and credible testimony of the victim (PW-6), duly corroborated by other prosecution witnesses and supported by medical evidence, the learned Trial Court has rightly recorded the conviction of the appellant for the offences as mentioned above. Hence, the present appeal, being devoid of merit, deserves to be dismissed. 9. We have heard learned counsel for the parties at length, carefully considered their rival submissions, and have also minutely perused the entire record with utmost circumspection. 10. From the evidence on record, there is nothing to show that the accused-appellant had ever tried to dominate the will of the prosecutrix merely because she belonged to a Scheduled Caste or Scheduled Tribe Category while taking her away and subjecting her to sexual intercourse. Dealing with an identical issue in case of Patan Jaman Vali v. State of Andhra Pradesh reported in AIR 2021 SC 2190 it has been held as under:- “58. ….We agree with the Sessions Judge that the prosecution's case would not fail merely because 6 PW1 did not mention in her statement to the police that the offence was committed against her daughter because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW2. While it would be reasonable to presume that the accused knew the caste of PW2 since village communities are tightly knit and the accused was also an acquaintance of PW2's family, the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the inter-sectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of the offence – whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single axis model. 59. It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words “on the ground of” under 7 Section 3(2)(v) have been substituted with “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”. This has decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction... 60. xxx xxx xxx 61. However, since Section 3(2)(v) was amended and Clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26 January 2016 these amendments would not be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31 March 2011. Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) would consequently have to be set aside.” Thus this Court has no hesitation to say that there is nothing on record to show that the accused-appellant took away the prosecutrix with him and committed forcible sexual intercourse with her only because she was a member of scheduled caste or scheduled tribe community, and being so the conviction of the accused-appellant under the Scheduled Castes and Scheduled Tribes Prevention of Atrocities) Act is herby set aside. 11. Now as regards the fact whether on the date of incident the prosecutrix was below of 18 years of age, though the prosecution has adduced a copy of the admission register which has been marked as Ex.P/16 as also the school leaving certificate dated 01.05.2014, both bearing the date of birth of the prosecutrix as 20.10.1998, yet P.R. 8 Netam PW-8 who has proved the school admission register has stated that at the time of admission of the prosecutrix, no birth certificate or the Kotwar Register was produced before him and that he has recorded the date of birth on the basis of transfer certificate. Thus, it remains undisputed that the prosecution has utterly failed to prove the origin of the date of birth of the prosecutrix which made the basis for being recorded in the school admission register. Even, the ossification test has not been conducted to ascertain the approximate age of the prosecutrix. 12. The Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana reported in 2023 SCC Online SC 1397, has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit reported in 1988 (Supl.) SCC 604 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence of the same, it cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder:- “14 This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. “14…. The date of birth mentioned in the scholar’s register has no evidentiary value unless the person who made the entry or 9 who gave the date of birth is examined. The entry contained in the admission form or in the scholar’s register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar’s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth such an entry will have no evidentiary value. 15. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.” 13. In the case of P. Yuvaprakash versus State Rep. By Inspector of Police reported in AIR 2023 SC 3525 the Hon'ble Supreme Court observed in para 13 as under: “13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: (i) the date of birth certificate from the school, or the matriculation or 10 certificate equivalent from concerned examination Board, available; and in the absence thereof; the if (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest test medical conducted on the orders of the Committee or the Board”. age determination In view of the evidence on record and the legal position referred to above, the prosecution appears to have failed to prove that on the date of incident the prosecutrix was below 18 years of age and therefore, the fact that on the date of incident she was minor becomes doubtful. 14. From the evidence of the prosecutrix PW-6 it is apparent that on the date of the incident when she was returning from the house of her friend, the accused-appellant met her and told her about being called by her father. Accordingly, she went along with the accused-appellant to village – Borsi but her father was not there. She then accompanied the accused-appellant to Raipur and stayed in the house of one Doojram and during this stay period the accused-appellant committed forcible sexual intercourse with her. She however has been declared hostile. In the cross-examination she has stated that the sexual intercourse by the accused-appellant with her was there on 11 number of occasions on the pretext of marriage. She has also admitted that after marrying the accused-appellant they lived at Raipur as husband and wife. She has reiterated that even at the Nursery she met the accused-appellant 4-5 times and all the while they both had physical relations. Since, the accused- appellant had asked her not to disclose the incident to anyone, she kept mum. According to her, the factum of her affair with the accused-appellant was known to her friends Yashoda and Ishwari. From her statement recorded under Section 164 CrPC also it is quite apparent that the accused-appellant and the prosecutrix liked each other and for that she went to Raipur with him on her own volition and stayed with him for 20-25 days. She has also stated that they got married in a Temple at Raipur and thereafter lived together as husband and wife. Almost similar version is there in her 161 CrPC of her statement. 15. Dr. Divya Kudeshiya PW-4 is the witness who medically examined the prosecutrix and gave a report Ex.P/6 stating that she did not notice any external or internal injury on the body of the prosecutrix and that she was habitual to sexual intercourse. B. L. Pal is the investigating officer who has duly supported the case of the prosecution. Though, the articles seized were sent for chemical examination, no such report is there on record. 12 16. Now, the case of the prosecution rests on the testimony of the victim (PW-6), therefore, it must be of sterling quality as held by the Supreme Court in the matter of Rai Sandeep alias Deepu v. State (NCT of Delhi) reported in (2012) 8 SCC 21 wherein it has been observed that who c an be said to be a “sterling witness” and which has been recently followed in the matter of Santosh Prasad @ Santosh Kumar v. The State of Bihar reported in (2020) 2 S.C.R. 798 Their Lordship of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra) have held in paragraph No.22 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 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 everyone of other supporting material such as the recoveries made, the weapons used, the manner 13 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, 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. 17. Coming to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court, it is quite vivid that as per the statement of the victim (PW-6), it appears that she had accompanied the appellant to Raipur and in a temple they both got married and all throughout her stay with the appellant, the sexual relation between them went on smoothly. Before this physical relations were being established between them at the nursery also. Though the accused and the prosecutrix spent about 15-20 days together, the prosecutrix does not appear to have made any complaint to anyone whom she might have met all along. Thus the victim has failed to pass the tests of being a “sterling witness” as held by their 14 Lordships of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra). In that view of the matter, it would be absolutely risky to maintain the conviction of the appellant and, therefore, he is entitled for acquittal on the basis of benefit of doubt. 18.
Decision
In view of the above, the impugned judgment of conviction and order of sentence dated 07.11.2016 is hereby set aside. Consequently, the appeal is allowed. The appellant stands acquitted giving him benefit of doubt from the charges framed against him for the offences as described above. The appellant is already on bail. Now he need not surrender anywhere but his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 19. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. Sd/- (Sanjay K. Agrawal) Judge Sd/- Sd/- (Sachin Singh Rajput) Judge H. ANSARI/J HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2025.07.23 11:12:11 +0530