Nafr High Court
Case Details
1 2025:CGHC:6024 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 16 of 2024 1 - Niraj Maheshwari (Laddha) S/o Late Rajendra Prasad Maheshari, Aged About 36 Years R/o Shivanand Nagar Khamtarai, Sector 03 Raipur, P.S. Khamtarai, District Raipur Chhattisgarh. versus Appellant Digitally signed by RAMAKANT NIRALA 1 - State Of Chhattisgarh Through Station House Officer, P.S. Utai Dsitrict Durg Chhattisgarh. Respondent(s) For Appellant For Respondent(s) : : Mr. Aditya Bhardwaj, Advocate Mr. Ajay Kumrani, PL
Legal Reasoning
Hon’ble Smt. Justice Rajani Dubey Judgment on Board 03/02/2025 1. The present appeal is directed against the judgment of conviction and order of sentence dated 03.11.2023 passed by the learned Additional Session Judge, First FTC, Durg (C.G.) in Special Criminal Case (POCSO) No.150/2021, whereby the appellant has been convicted under Sections 363 of IPC and Section 4 of POCSO Act and sentenced to undergo RI for 3 years and 10 2 years, respectively, with default stipulations. 2. The prosecution case, in brief, is that (P.W.2) mother of prosecutrix lodged a written complaint at police station Utai that her daughter who is 16 years old on 17.10.2021 in the morning at about 4:30 A.M. had told her that she is going for morning walk, but she did not return home then she called her daughter but she did not pick her call, then she called the present appellant to know the whereabout of her daughter, he told her that he has brought prosecutrix to Raipur, then she asked him to come back immediately with her daughter. In the evening at about 6:30 P.M. he brought her daughter and left near the farm of Morid. When she asked her daughter about going with the appellant, she told her that the present appellant met her in the morning walk at 5 am in the morning and told her to go for a drive and took her to the petrol pump on his activa and from there he took her to a hotel at Raipur and several times made physical relation with her on the pretext of marriage. On the report of the mother of the prosecutrix, a case was registered against the appellant. After completion of investigation, the charge sheet was filed before the Magistrate concerned. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. The learned Trial Court did not appreciate the oral and documentary evidence properly and did not consider omissions and contradictions in the statements of the prosecution 3 witnesses. The trail court has failed to appreciate the medical report submitted by the doctors, as no evidence has been found regarding the injury and her hymen was old rupture and the prosecutrix is habitual of sexual intercourse. The trial court failed to appreciate that mother has accepted that the present appellant and the mother had love affair and she used to visit Raipur hotel to meet him. The mother of the prosecutrix has accepted that there was some money related transaction with the appellant and he used to help her and earlier she had love affair with some other people as well and due to money dispute between the appellant and the mother of the prosecutrix, a false case was registered against the appellant, but the learned Trial Court did not consider all these aspects of the matter and wrongly convicted the appellant. Therefore, the appeal deserves to be allowed. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matters of Manak Chand @ Mani vs The State of Haryana, reported in 2023 SCC Online SC 1397, Rai Sandeep @ Deepu vs State of NCT of Delhi, reported in (2012) 8 SCC 21 and this Court’s judgment dated 06.12.2023 passed in CRA No.559/2022 in between Kishan Dehariya vs State of Chhattisgarh. 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant, as such no interference is called for. 4 Therefore, the appeal deserves to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. The first question for consideration before this Court would be whether the Trial Court has rightly held that on the date of incident, the victim was minor? 7. The learned Trial Court in para 15 of the judgment found that the date of birth of the prosecutrix is 14.08.2005 and on the date of incident i.e. 16.10.2021, the prosecutrix was aged about 16 years, 2 months and 2 days and below 18 years of age. The prosecutrix (PW-1) stated that her age is 16 years and the date of birth is 14.08.2005 and she is studying in Class 11th. In the cross-examination, she stated that she does not know that whether her mother had got written her date of birth less at the time of admission in the school and she also does not know whether her year of birth is 2003. The mother of the prosecutrix (PW-2) also stated that the date of birth of the prosecutrix is 14.08.2005. In the cross-examination, she stated that her marriage was solemnized in the year 2004. Smt. Jayshree Dewangan (PW-8), Incharge Principal of Kusumdevi School, Dundera stated that police seized the admission register (Ex-P/19) and as per original register (Ex-P/20), the date of birth of the prosecutrix is 14.08.2005 and she was admitted in Class 1st on 16.06.2011. In the cross-examination, she admitted that entry was made by previous principal and she only identified his 5 signature and handwriting. 8. 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 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 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 to the lis, 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 6 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.” 9. The Hon’ble Supreme Court in Manak Chand @ Mani (supra) held in para 9 as under:- 9. 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 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.” 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. 10. In light of above, it is clear that Smt. Jayshree Dewangan (PW-8), Incharge Principal of Kusumdevi School, Dundera admitted this fact that there is no signature of parents in admission register and she does not remember that at the time of admission, the 7 birth certificate was produced or not. Thus, it is clear that the prosecution has failed to prove this fact that the prosecutrix was below 18 years of age at the time of incident. 11. The prosecutrix stated in her examination-in-chief that on the date of incident i.e. on 16.10.2021 at 4:30 am, she was going for morning walk, then the accused came to him with scooty and asked her for wandering, then he took her to Raipur in a hotel and made her drunk cold drink and committed sexual intercourse with her. In the cross-examination, in para 14, she stated that it is true that she did not tell about her going to Raipur with the accused on the mobile to her mohter. In para 18, she admitted that it is true that even after going to hotel, she does not tell the same to her family members and she self stated that when she was in hotel room, then she told her friend on mobile that she is in Raipur. She also admitted that she did not tell about the incident to hotel staff. In para 21, it is admitted by her that there was money transaction between the accused and her mother. 12. The mother of the prosecutrix (PW-2) stated that on the date of incident at about 4:30 am, the prosecutrix went with the accused and when she did not come, then she enquired the same from the accused then he told her that the prosecutrix is with him at Raipur, then she told him to immediately bring her daughter and when the prosecutrix came out, she told her that the accused had taken her to hotel and committed sexual intercourse with her and thereafter she lodged report (Ex-P/5) and FIR (Ex-P/6). In the 8 cross-examination, she admitted that her husband died in the year 2007. In 2020, Devendra became her boyfriend and after Devendra, Rahul became her boyfriend and it is true that she also used to talk with Neeraj and she admitted that for 2-3 times she went to Raipur to meet the accused and told the accused to book hotel at Raipur. In para 18, she admitted that it is true that there is sexual relationship between her and the accused but the same is not known by the family members. She also admitted in para 22 that Article-A/1 chat was done from her mobile to the accused’s mobile. 13. Shiva Dahiya (PW-7) receptionist at Simran Pride Hotel, Raipur stated that on 16.10.2021 at about 8 am, the accused came with one madam to book room No.402 and second day he went. The policemen came for investigation and her identity card is Ex-P/15 and the person who booked room is namely Neeraj Ladda and tax invoice bill is Ex-P/16. In the cross-examination, he admitted that Neeraj always visited hotel. In para 6, he stated that Neeraj used to come with the mother of the prosecutrix and also stated that the accused had taken her aadhar card. 14. It is clear from the statement of the prosecutrix and her mother that the mother of the prosecutrix was known by the accused and as per the statement of PW-7 Shiva Dahiya, it is also apparent that on several occasions mother of the prosecutrix used to come with the accused at Raipur. In her cross-examination, she admitted that she is in relation with the accused. The defence of 9 the accused is that they had some money dispute thats why she lodged false FIR in the name of her daughter. 15. Dr. Kunti Thakur (PW-3) stated that on 18.10.2021, she examined the prosecutrix but she did not find any internal or external injuries and no definite opinion can be given regarding recent sexual intercourse and she prepared vaginal slide and referred the same for chemical examination and gave her report (Ex-P/12) and as per FSL report (Ex-P/33), no semen was found in vaginal slide and clothes of the prosecutrix so it is clear that medical report does not support the recent intercourse of the prosecutrix. The statements of the prosecutrix and her mother are not reliable and trustworthy. 16. The Hon’ble Supreme Court in Rai Sandeep @ Deepu (supra) held in para 15 as under:- “15. 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 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- 10 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 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. The Hon’ble Apex Court in the matter of Phool Singh vs State of Madhya Pradesh, reported in (2022) 2 SCC 74, held in para 8 as under:- “8. In the case of Ganesan (supra), this Court has observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. In the aforesaid case, this Court had an occasion to consider the series of judgments of this Court on conviction on the sole evidence of the prosecutrix. In paragraphs 10.1 to 10.3, it is observed and held as under: 10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191], it is observed in paras 9 to 14 as under: “9. Kewalchand Jain In State of Maharashtra v. Chandraprakash v. [State of Maharashtra 11 Chandraprakash Kewalchand Jain, (1990) 1 SCC 550] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: ‘16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the The Evidence Act nowhere says that her crime. 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 alive to and 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 Evidence Act similar to Illustration (b) to Section 114 which requires it to look for 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 shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose 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.’ 18. In light of the above, in the present case, it is clear that statement of mother of the prosecutrix and prosecutrix are not reliable and trustworthy and the prosecution has also failed to prove this fact 12 that the prosecutrix is below 18 years of age, as such this Court is of the considered view that the prosecution has failed to prove its case beyond reasonable doubt against the appellant, thus the finding recorded by the learned Trial Court is not sustainable.
Decision
19. Consequently, the appeal is allowed and the impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted from the offence under Section 363 of IPC and Section 4 of POCSO Act. 20. The appellant is in jail. He be released forthwith if he is not required to be detained in any other offence. 21. 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 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. 22. The Trial Court’s record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Nirala Sd/- Rajani Dubey Judge