Nafr High Court
Case Details
1 2025:CGHC:5675 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 2347 of 2023 Rupesh Yadav a.k.a. Ropesh, S/o Maniram Yadav, aged 22 years, R/o village Kachandur, Mararpara, Ward No. 4, Police Station Pulgaon, District Durg (C.G.). Versus ---- Appellant State of Chhattisgarh Through : Aarakshi Kendra, Durg, District Durg (C.G.) ---- Respondent - For Appellant. For Respondent - Mr. Shantam Awasthi, Advocate. Mr. Devesh G. Kela, P.L. Hon'bel Smt. Justice Rajani Dubey ) (Judgment On Board 30/01/2025 1. This appeal arises out of the judgment of conviction and order of sentence dated 09.08.2023 passed by the Additional Sessions Judge (F.T.C.), Special Judge (constituted under POCSO Act), Durg, District Durg (C.G.) in Special Sessions Trial (POCSO) No. 62/2022 convicting and sentencing the accused/appellant as under :- CONVICTION SENTENCE Section 450 of IPC R.I. for 03 years and fine of Section 4 of POCSO Act 2 Rs.2000/-, in default of payment of fine amount, additional S.I. for 02 months. R.I. for 10 years with fine of Rs.5000/-, in default of payment of fine amount, additional S.I. for 03 months. 2. According to the prosecution, mother of victim/prosecutrix made a written statement in Police Station – Durg, to the effect that her daughter prosecutrix along with her younger sister used to sell vegetables and on 19.04.2022 at around 4.00 PM, both the sisters had gone to sell the vegetables and when they did not return home by 8.30 pm, a call was made to them by father of prosecutrix but her mobile phone was switched off. Thereafter, father of prosecutrix went to the spot where they used to sell the vegetables and after reaching there, younger daughter of father of prosecutrix informed him that the prosecutrix had gone somewhere else. While searching the prosecutrix at the nearby places, a call was also made to her friend Rahul, who informed that the prosecutrix had consumed poison, thereafter, they went to Nayapara near Shitla Temple and after seeing the condition of prosecutrix, she was taken to hospital and she was admitted. On 20.04.2022, when prosecutrix’s condition improved, she told that on 18.04.2022 at around 1.30 PM, the accused/appellant taking the advantage of her loneliness came and demanded water and when she went 3 inside the house to get the water, the accused/appellant came inside the room and forcefully committed sexual intercourse with her and when she asked the accused/appellant to marry her, he refused to marry her, whereupon she got scared and due to fear she consumed cockroach repellent (laxman rekha). Based on this written
Facts
report, an FIR under Crime No.451/2022 was register against the accused/appellant for the offence punishable under Sections 450, 376 IPC and Section 4 of the POCSO Act. The accused/appellant was arrested. After seizure of documents with regard to age of the prosecutrix, the statement of the witnesses were recorded. The prosecutrix and the accused/appellant were medically examined. Spot map was prepared. The statement of the prosecutrix was recorded under Section 164 of CrPC. 3. After investigation, charge sheet was filed against the accused/appellant under Sections 450, 376 IPC and Section 4 of POCSO Act and charges were also framed accordingly to which the accused/appellant abjured his guilt and pleaded for trial. 4. So as to hold the accused/appellant guilty, the prosecution examined as many as 08 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the incriminating circumstances appearing against him in the prosecution case, pleaded 4 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. Learned counsel for the appellant submits that the conviction and sentence of the appellant is bad, improper, incorrect and contrary to the material on record. The learned trial Court erred in holding the appellant guilty for offence under Section 450 IPC and Section 4 of POCSO without any evidence on record, as the prosecution did not collect any evidence that at the time of incident the appellant was with the victim. Learned counsel further submits that the appellant without any basis has been falsely roped in the present case and the prosecution has utterly failed to prove its case beyond reasonable doubt. Learned counsel also submits that it is apparent from the record that the prosecutrix was involved with another boy namely Aditya. The learned trial Court failed to see that none of the witnesses have supported the prosecution case and the prosecutrix herself admitted that she was with another boy Rahul when she consumed poison. It is also apparent that the victim and her family members have falsely implicated the accused/appellant to save Rahul but the learned trial Court did not appreciate oral and documentary evidence in 5 its true perspective and wrongly convicted the appellant. 7. Reliance has been placed on the decision of Hon’ble Apex Court in the matter Prasad alias Santosh Kumar V. State of Bihar reported in (2020) 3 SCC 443 : (2020) 2 SCC (Cri) 77 : 2020 SCC Online SC 194. 8. On the other hand, learned State counsel supporting the impugned judgment of conviction and order of sentence submits that the learned trial Court minutely appreciated oral and documentary evidence and has rightly convicted the appellant. So, the appeal being without any merit is liable to be dismissed. 9. I have heard learned counsel for the parties and perused the material available on record. 10. It is clear from the record of the learned trial Court that the learned trial Court framed charges under Sections 450, 376 IPC and Section 3 read with Section 4 of the POCSO Act. & after appreciation of oral and documentary evidence, the learned trial Court convicted the accused/appellant under Section 450, 376 IPC read with Section 4 of POCSO Act. 11. The question for consideration before this Court is that whether the prosecutrix on the date of incident was minor or not. 12. Prosecutrix (PW/1) has stated that on the date of incident, she was aged about 17 years and her date of birth is 18.07.2004. 13. Mother of prosecutrix (PW/2) has also stated that the date of 6 birth of her daughter (PW/1) is 18.07.2004. Further, the father of prosecutrix (PW/3) has stated that on the date of incident, her daughter was aged about 17 years and 09 months. Ishwari Gayakwad (PW/4), Principal of Middle Schook, Gayanagar, District Durg, has stated that the police had seized school admission register (Ex.P/15C) and prepared seizure memo under Ex.P/14 and as per the school admission register, the date of birth of the prosecutrix is recorded as 18.07.2004. This witness has also stated that the the prosecutrix was admitted in the school on 129.06.2014 in class 6. In cross-examination, this witness has admitted that the entry with respect to the date of birth of the prosecutrix was not recorded by her and the same was made by ex-principal and she could not tell the basis on which the said date of birth was recorded. Apart from this, the prosecution has not adduced any evidence with regard to date of birth of the prosecutrix. 14. The learned trial Court on the basis of statement of prosecutrix to the effect that her date of birth is 18.07.2004 which corroborated by the school admission register (Ex.P/15C) recorded its finding that the prosecutrix on the date of incident was minor aged 17 years and 09 months. 15. According to Section 35 of the Indian Evidence Act, an entry in any public or other official book, register or [record or an 7 electronic record] [Substituted by Act 21 of 2000, Section 92 and Sch.II, for "record" (w.e.f. 17.10.2000).], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or [record or an electronic record] [Substituted by Act 21 of 2000, Section 92 and Sch.II, for "record" (w.e.f. 17.10.2000)] is kept, is itself a relevant fact. But the admissibility of such document would not be of much evidentiary value to prove the age of the girl in absence of corroboration by cogent evidence and the basis on which the age was recorded. 16. 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. 8 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
Legal Reasoning
the observations made by 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 lis, having regard to the 9 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.” 17. In the light of aforesaid judgment of Hon’ble Apex Court in Alamelu (supra), this Court finds that apart from school admission register (Ex.P/15C), there is no clinching and legally admissible evidence on record to prove that the prosecutrix, on the date of incident, was below 18 years of age. Ishwari Gayakwad (PW/4), Principal of the Middle School, Gayanagar, Durg, has stated that the entry of the date of birth of the prosecutrix in the school admission register was not made by her and the same was made by ex-principal of the school. She has also stated that she cannot tell the basis on which the said entry of date of birth 10 of the prosecutrix was recorded. Though, the prosecutrix (PW/1) stated that her date of birth is 18.07.2004 but she has not produced any documentary evidence and the basis on which she is disclosing her date of birth to be 18.07.2004. The mother and father of prosecutrix (PW/2 and PW/3) have only stated that the date of birth of their daughter is 18.07.2004 but they have not stated that on what basis they are disclosing the date of birth of the prosecutrix. Thus, in absence of any incriminating evidence regarding date of birth of the Prosecutrix (PW/1), it would be very difficult for this Court to arrive at finding that the Prosecutrix was minor at the time of incident. Considering all the aspects of the case, it can be said that there is no clinching, credible and reliable evidence in respect of age of the prosecutrix. The prosecution has completely failed to prove this fact that the prosecutrix on the date of incident was below 18 years of age. 18. As regards commission of rape, this Court has carefully gone through the evidence of Prosecutrix (PW/1), who has stated in her evidence that on the date of incident i.e. 18.04.2022, she was all alone in her house and at the relevant time, the accused/appellant came, demanded water and when she went inside the house to get the water, the accused/appellant also entered her house and forcefully committed sexual intercourse with her. Thereafter, she 11 asked the accused/appellant to marry her but he denied to marry her and due to this she got scared and on second day, she informed the incident to her friend Rahul that the accused/appellant forcefully established sexual relationship with her and on the same day she went to market with Rahul and brought cockroach repellent. She has also stated that when she consumed cockroach repellent, at that time her friend Rahul was with her. When she started vomiting, Rahul took care of her. Thereafter, she came and sat near Shitmal Mata Temple and at that time also Rahul was with her. She has also stated that when she did not reach home by 8.00 PM, her parents made call on her mobile phone which was attended by Rahul who informed them that the prosecutrix has consumed pesticide. Thereafter, her parents came near Shitla Mata Temple and took her to hospital. At that time, Rahul was also with her. In cross-examination, she has admitted that she has been friend with Rahul for one year and her parents know about their friendship. After the incident, she went with Rahul and consumed pesticide. Prosecutrix, in para 13, has admitted that she had gone with Rahul near Nayapara river. She also admitted that the place near the river is deserted and now so crowded but she denied that Rahul has committed rape with her. She has also denied that she consumed pesticide before Rahul but she herself stated that Rahul was with her but he was not 12 aware that she has consumed pesticide and he came to know about the consumption of pesticide by her only when she started vomiting. In para 18, a question was put to this witness that if the accused Rupesh had done wrong to her on the date of incident, she would have definitely shouted, to which she answered that that on the date of incident accused Rupesh had committed rape with her but she did not shout. This witness has also went on to state that she know the gravity of offence but she did not inform the incident to her parents and after two days, she informed the incident to her friend Rahul. The prosecutrix denied this suggestion that she is implicating the accused/appellant to save Rahul. 19. Mother of prosecutrix (PW/2) has stated that on 19.04.2022, when the prosecutrix and her younger daughter did not come by 8.00 PM, then she made a call over prosecutrix mobile phone and her younger daughter informed her crying that the prosecutrix went somewhere 3-4 hours ago. Thereafter, she along with father of prosecutrix (PW/3) searched the prosecutrix but she was not found. At the relevant time, her younger daughter informed them that prosecutrix went with Rahul. She has also stated that when a call was made over the mobile phone of Rahul, he informed that the prosecutrix had consumed pesticide. Thereafter, this witness along with father of prosecutrix 13 (PW/3) and police personnel went to the place disclosed by Rahul, where they found the prosecutrix in unconscious condition and thereafter she was taken to hospital. This witness has also stated that when the condition of prosecutrix was improved she asked the reason of consumption of pesticide, then prosecutrix told that on 18.04.2022, the accused/appellant came to her house and committed forcefully sexual intercourse with her and when she asked the accused/appellant to marry her, he denied to marry. This witness in para 23 and 24, she has admitted that she was having knowledge that her daughter was strolling with Rahul and that Rahul is friend of prosecutrix. She has also admitted that police vehicle went to search prosecutrix and Rahul and when police received the information about the prosecutrix and Rahul to be near Shitla Mata Temple, then they also went there with police. She has admitted in para 29 that police personnel went in 112 vehicle and they went on their vehicle to Nayapara. The witness herself stated that the they and the police personnel went almost together. She has also stated that father of prosecutrix did not assault Rahul but raised his hand to assault that Rahul fed her something. 20. Rahul (PW/5) has stated that the prosecutrix told him that she is having affair with accused/appellant and he has forcefully established physical relation with her and 14 thereafter he (this witness) went to Hyderabad and when he came back from Hyderabad he asked the prosecutrix that she has to inform the incident to her parents then she consumed pesticide due to fear. This witness, in cross- examination, has admitted that she knew the prosecutrix for 4-5 years. He has admitted that prosecutrix and his two friends went from the prosecutrix’s shop in Sikola and thereafter, he sent back his two friends as the prosecutrix was crying loudly on the way. This witness in para 21 has admitted that parents of prosecutrix came to the temple, the father of prosecutrix got angry and abused him asking as to why he had kidnapped the prosecutrix but he denied that the father of prosecutrix even beat him up. 21. Dr. Kunti Thakur (PW/6) who examined the prosecutrix on 20.04.2022 did not find any external or internal injury on her body. The doctor has found that old hymen of prosecutrix was ruptured and no definite opinion was given by her regarding recent sexual intercourse and gave her report under Ex.P/17. 22. Close scrutiny of the evidence of prosecution witnesses especially prosecutrix (PW/1), her mother (PW/2), father (PW/3) and her friend Rahul (PW/5) makes it clear that the conduct and statement of all the witnesses are suspicious and their statements are contradictory to each other so as to arrive at irresistible conclusion that it is the 15 accused/appellant only who has committed forcible sexual intercourse with the prosecutrix. The prosecutrix, at the time of incident when she was being subjected to forcible sexual intercourse, did not raise alarm and did not resist the act of the accused/appellant and came to his disposal & for two days she did not inform the incident to her parents and narrated the whole incident to her friend Rahul (PW/5) and the PW/5 has stated that the prosecutrix was in love affair with the accused/appellant, which makes the conduct of the prosecutrix suspicious. It also transpires from the evidence that she went with Rahul (PW/5) and consumed cockroach repellent. Further, mother of prosecutrix (PW/2) specifically stated that sister of prosecutrix informed her that prosecutrix (PW/1) went with Rahul (PW/5) and they searched her for 2- 3 hours and police personnel also informed them that prosecutrix and Rahul are near Shitla Mata Temple. Thus, from the aforesaid, the only irresistible conclusion can be drawn that the prosecutrix was consenting party to the act of the appellant and when the appellant refused to marry her, she consumed cockroach repellent. 23. It has been held by Hon’ble Apex Court in the matter of Santosh Prasad alias Santosh Kumar V. State of Bihar reported in (2020) 3 SCC 443 : (2020) 2 SCC (Cri) 77 : 2020 SCC Online SC 194 in para 5.4.3 and 5.5 which read thus :- 16 “5.4.3 In Krishan Kumar Malik V. State of Haryana, it is observed and held by this court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 5.5. With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality ?” 24. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire full confidence of the Court. Thus, from the aforesaid analysis of the evidence of Prosecutrix (PW/1), mother (PW/2), father (PW/3) and her friend Rahul (PW/5) what emerges is that she was in love with the accused/appellant and she was consenting party to the act of the accused/appellant. The testimony of Prosecutrix (PW/1) does not inspires full confidence of this Court and the same cannot be made 17 basis for convicting the accused/appellant. Thus, in absence of any corroborative piece of evidence, it would be difficult for this Court to arrive at definite conclusion that it is the appellant who committed rape with prosecutrix. 25. As discussed above with regard to the truthfulness of the evidence of the prosecutrix (PW/1), when examined by the medical evidence of PW/6 and medical report (Ex.P/18), this Court does not find the statement of the prosecutrix (PW/1) to be natural and truthful & the same is not sufficient to hold the accused/appellant guilty. The prosecution has failed to prove its case against the accused/appellant beyond all reasonable doubt and the benefit of course has to go to the appellant. 26. In the result, the appeal is allowed. Conviction of the accused/appellant under Section 450, 376 IPC read with Section 4 of POCSO Act and sentenced imposed thereunder are hereby set aside. He is acquitted of the said charges by extending him benefit of doubt. 27. The appellant is in jail. He be set at liberty forthwith, if not required in any other case. 28. Keeping in view the provisions of Section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- before the Court concerned forthwith, which shall be effective for a period fo six months along with an undertaking that in the event of filing of Special Leave 18 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. 29. 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/- (Rajani Dubey) JUDGE pekde