Nafr High Court
Case Details
1 2025:CGHC:44598-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2209 of 2024 Monu Yadav @ Manoj Yadav S/o Late Dilip Yadav Aged About 27 Years R/o Handi Para Near Radhakrishna Mandir P.S. Azad Chowk, District - Raipur Chhattisgarh versus ... Appellant(s) State of Chhattisgarh Through P.S. Azad Chowk, District - Raipur Chhattisgarh ... Respondent(s) For Appellant (s) : Mr. Rajesh Jain, Advocate. For Respondent(s) : Mr. Sakib Ahmed, Panel Lawyer Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Bibhu Datta Guru, Judge Order on Board Per Ramesh Sinha, Chief Justice 02/09/2025 1 Heard Mr. Rajesh Jain, learned counsel for the appellant as well as Mr. Sakib Ahmed, learned Panel Lawyer appearing for the State/respondent. 2 The appellant has preferred this appeal under Section 415(2) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short, the BNSS) questioning the judgment of conviction and order of sentence dated 08.10.2024 passed in Special Sessions Trial No. 133/2020 by the learned Additional Sessions Judge Second (POCSO) Fast Track Special 2 Court, Raipur, District Raipur, by which the appellant has been convicted and sentenced as under: Conviction Under Sentence Fine Default Section Sentence 376(2)(n), 376(2), Sentence awarded - - 376(3) of the Indian in the alternative Penal Code (for short, offence under the IPC) and Section Section 4(2) and 6 5(l)/6, 5(j)(ii) / 6 of the of the POCSO Act Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act) 4(2) of the POCSO Act Rigorous Rs. 3000/- 1 month imprisonment for 20 R.I. more years Section 6 of the Rigorous Rs. 3000/- 1 month POCSO Act imprisonment for 20 R.I. more years 3 The appellant was charged under Sections 376 (2)(n) / 376(2), 376(3) of the IPC and Sections 4(2), 5(l)/6, 5(j)(ii)/6 of the POCSO Act for having committed the offences under the said Act from 2017 onwards and committed penetrative sexual assault by having forceful sexual intercourse on more than one occasion with the victim alleged to be under the age of 16 years till two months before 26.07.2020 as a result of which she became pregnant. 4 Case of the prosecution, in brief, is that on 26.07.2020, the victim's (PW-1) father (PW-2) lodged a written complaint in Azad Chowk Police Station Raipur, to the effect that on 26.07.2020, his daughter/victim had stomach ache and when asked, she told him and his elder daughter about the incident that the appellant was having physical relations with his daughter/victim at his house for two months from 2017 by luring her 3 with the promise of marriage, as a result of which she became pregnant. On the basis of the said written complaint (Exhibit P/4) by the victim's
Legal Reasoning
father (PW-2), an First Information Report (Exhibit P/3) was registered against the appellant for the offences under Section 376 IPC and Section 4, 6 of the POCSO Act under Crime No. 175/2020 in Azad Chowk Police Station. 5 During the course of investigation, a spot map (Exhibit P/5) of the incident and a Patwari map (Exhibit P/13) were prepared. Regarding the date of birth of the victim, in which the date of birth of the victim is mentioned was seized vide seizure memo (Exhibit P/7), photocopy of the birth certificate of the victim, Article A 'C' was seized. For examination of the private part of the victim, consent (Exhibit P/9 and P/10) were obtained and she alongwith her clothes were got examined. According to seizure memo (Exhibit P/10), a brown colored underwear was seized from the appellant. The appellant was also got medically examined vide Exhibit P/11. The statement of the victim under Section 164 Cr.P.C. was recorded vide Exhibit P/2. The appellant was arrested vide arrest memo (Exhibit P/12). During the investigation, statements of witnesses were recorded under Section 161 CrPC and after other necessary proceedings of investigation, a charge sheet was presented before the trial Court concerned against the appellant under Sections 376(2)(n), 376 (3) IPC and Sections 4, 6 of the POCSO Act. 6 The learned trial Court framed charges against the appellant for the offences under Sections 376 (2) (n) / 376 (2), 376(3) of the IPC and Sections 5(l)/6, 4(2), 5 (j) (ii) / 6 of the POCSO Act. The appellant abjured the guilt and prayed for trial. 7 To prove the offence alleged against the appellant, the prosecution 4 examined the witnesses namely the victim (PW-01), victim's father (PW- 02), Dr. Anjum (PW-03), victim's sister (PW-04), Dr. Rajni Chaurasia (PW-05), Anwari Begum, Assistant Sub Inspector (PW-06), Mithlesh Pandey, Patwari (PW-07), Malti Gaikwad, Head Constable (PW-08), C.P.Tiwari, Retired Sub Inspector (PW-09) and Krishnakat Bajpai Deputy Superintendent of Police (PW-10) and exhibited as many as 17 Exhibits and one Article. 8 The statement of the appellant was also recorded under Section 313 Cr.P.C. in which the appellant expressed his ignorance to most of the questions and some of them were denied as well. He stated that he was falsely implicated and the witnesses were deposing against him as they were tutored by the Police. In defence, Hari Yadav (DW-01) was examined as defence witness on his behalf. In support of his case, the appellant exhibited the police statement of the victim, father of the victim and sister of the victim as Exhibit D/1 to D/3. 9 The learned trial Judge, after considering the evidence on record, convicted and sentenced the appellant/accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict. 10
Legal Reasoning
Mr. Rajesh Jain, learned counsel for the appellant/convict submits that the there are many contradictions and omissions in the statement of the mother of the victim which falsifies the FIR lodged by her has not been duly certified. The victim has not mentioned any incident of rape with her in her judicial statement. Her date of birth is not proved by conclusive evidence. It has not been clarified on what basis the date of birth of the victim has been recorded in the birth register book of Nagar Palika Nagar 5 Nigam Raipur. All the witnesses examined on behalf of the prosecution are interested witnesses. The entire proceedings have been conducted by the prosecution/police while sitting in the Police Station. The prosecution's story and the statement of the Investigating OfÏcer have not been supported by the independent witness of the prosecution. When the FIR was lodged, the victim was 8 months pregnant and as such there is no explanation for inordinate delay in lodging the FIR. No DNA test has been conducted to prove that the appellant was the father of the child delivered by the victim. In the MLC report, the age of the victim is recorded as 19 years. It is further submitted that the father of the victim has deposed that the appellant had threatened the victim on earlier occasion also regarding which he had made a complaint before Police Station, Azad Chowk but what ultimately hapenned to that complaint was also not known. The present FIR was lodged when the victim was eight months pregnant and as such, it cannot be conclusively said that it was the appellant who had committed the offence in question and prior to that point of time, the father of the victim could not come to know about the pregnancy of the victim.Thus, the prosecution has not been able to prove its case beyond doubt. The Investigating OfÏcer got the radiological test of the victim conducted but no report has been produced by the prosecution. Hence, the accused should be acquitted giving the benefit of doubt. Regarding the above argument of the defence and the plausibility of the defence, further analysis of the evidence on record is being done. 11 On the other hand, Mr. Sakib Ahmed, learned State counsel submits that the learned trial Court has rightly arrived at a finding with regard to the guilt of the appellant and the learned trial Court was fully justified in convicting and sentencing the appellant for the offences in question. The 6 judgment is based on evidence available on record and as such, the same does not warrant any interference and the appeal deserves to be dismissed. 12 We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 13 In the present case, the appellant was medically examined by Dr. O.P.Tandon, Medical OfÏcer who had examined the appellant and vide his report (Exhibit P/11A) has opined that there was nothing to suggest that the appellant was not capable of performing sexual intercourse as cremasteric reflex was found to be present and his moustach, beard, axillary hair, pubic hair were also found to be well developed. 14 The victim (PW-1), while deposing before the learned trial Court, has stated that her date of birth was 07.04.2004 and had studied upto class 8th. However, in cross examination, she has stated that when she was being medically examined at District Hospital, Raipur, she had informed the Doctor that her age was 19 years. The MLC report (Exhibit P/10) mentions the age of the victim as 19 years. The birth certificate, Article C states the date of birth of the victim to be 16.08.2004. In the present case, there is no radiological report which could have been of much assistance in ascertaining the age of the victim when the victim herself has informed the Doctor that she was 19 years of age. 15 Even in the memo sent by the Police Station, Azad Chowk, Raipur, with respect to conducting of MLC, the age of the victim has been mentioned as 19 years. 16 It is difÏcult to understand as to how an educated girl, who had studied 7 upto class 8th would not be knowing her present age as when she was examined medically, she had stated her age to be 19 years whereas her testimonials with regard to her date of birth states her date of birth to be 16.08.2004. The Indoor Summary Sheet (Exhibit P/9) and other documents relating to the treatment of the victim at Dr. Bhimrao Ambedkar Memorial Hospital, Raipur, also states the age of the victim to be 19 years. Further, the conduct of the victim herself is also to be considered as according to the victim, she was bothered by the appellant on an earlier occasion also for which a report was lodged by them but what happened to that case was neither informed by the prosecution nor the victim. The victim was not in a captive condition or in custody but was all the time free and was living with her father in her own house. Had it been a case of forceful sexual intercourse, the normal course would have been that she would have reported the matter then and there and not waited for eight long months when she became pregnant. 17 Dr. Rajni Chaurasiya (PW-5) who had conducted the MLC (Exhibit P/10) of the victim (PW-1) had deposed that the victim normally appeared to be aged about 19 years but could not give definite opinion with regard to recent sexual intercourse. 18 The defence witness namely Hari Yadav (DW-1) who happens to be the neighbour of the victim and was acquainted with both the victim and the appellant, has deposed that the father of the victim used to doubt the appellant that he was having some affair with his daughter and as such used to quarrel with the appellant. He further stated that the appellant has been falsely implicated in this case as the appellant was a family man. 8 19 In the matter of Jaya Mala v. Home Secretary, Govt. of Jammu & Kashmir and others1, the Supreme Court has held that a judicial notice can be taken that the margin of error in age ascertained by Radiological examination is two years on either side. The fact remains that no radiological test has been conducted which could have thrown light on the aspect of age of the victim. 20 In the matter of Tilku Alias Tilak Singh v. The State Of Uttarakhand, reported in {2025 INSC 226}, the Supreme Court has held that he victim, who is between 16 to 18 years of age is very much in the age of understanding as to what was right and wrong for her. 21 A delay in lodging the FIR is not automatically fatal to a prosecution case, but it can be a significant factor, especially if it is inordinately long and not satisfactorily explained. The Court should take a realistic approach, assessing the circumstances of the case to determine if the delay was used to concoct evidence or create a false narrative, which could weaken the prosecution's version. A prompt FIR is preferred for its spontaneity, but a delay can be overcome with a convincing explanation for the time lapse. 22 In the case in hand, there appears to be a considerable delay in lodging the FIR as the FIR was lodged on 26.07.2020 and the incident of forceful sexual intercourse is said to be of the year 2017 and later, on 13.09.2020, the victim had given birth to a male child. Even if it is assumed that the victim could not inform his father about the incident of forceful sexual intercourse by the appellant, when the victim became pregnant, it could have been easily understood by the father (PW-2) of the victim but the father made written complaint at Police Station, only 1 AIR 1982 SC 1297 9 when the victim was 8 months pregnant and not earlier even though the signs of pregnancy would have appeared at a very much earlier point of time but he still kept silent and did not enquire into the matter by asking the victim. 23 It is undisputed that the victim has given birth to a male child and as such, the MLC report or the FSL report are of not much relevance. Even otherwise, there is no FSL report in the present case. 24 Dr. Anjum (PW-3), is the Doctor under whom Dr. Jyoti Jayaswal, had treated the victim (PW-1) at Medical College Hospital, Raipur. She stated that when the victim had arrived at the hospital alongwith her father on 12.09.2020, she was eight months pregnant and was undergoing labour pain. She was aged about 19 years and was anemic. The victim gave birth to a male child on 13.09.2020 at 01:04 p.m. The umbilical cord of the victim was preserved and handed over to Sub Inspector C.P.Tiwari for DNA test. She has clearly deposed that it was the victim who had informed that her age was 19 years. 25 According to the learned State counsel, though the above sample was sent for DNA test but the report is not available. The said submission has been controverted by the learned counsel for the appellant stating that no samples were drawn from the appellant so as to examine the paternity. 26 DNA test report could have been the best piece of evidence so as to arrive at a finding as to whether the appellant was the biological father of the child and it could have been conclusively proved that it was the appellant alone who had committed the offence in question, which is totally missing in the present case. 10 27 In the matter of Chotkau v. State of Uttar Pradesh, {(2023) 6 SCC 742}, Hon'ble Apex Court, in para-80 has observed as under: “80. After saying that Section 53A is not mandatory, this Court found in paragraph 54 of the said decision that the failure of the prosecution to produce DNA evidence, warranted an adverse inference to be drawn. Paragraph 54 reads as follows: (Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 SCC p.485) "54. For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53A and Section 164A CrPC. We are not going to the extent of suggesting that if there is no DNA profiling, the prosecution case cannot be proved but we are certainly of the view that where DNA profiling has not been done or it is held back from the trial court, an adverse consequence would follow for the prosecution." 28 In the case of Krishan Kumar Malik v. State of Haryana {(2011) 7 SCC 130}, the Hon'ble Apex Court in para-44 has held as under: “44. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr.P.C. the prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the 11 undergarments of the prosecutrix to make it a fool proof case, but they did not do so, thus they must face the consequences.” 29 In the light of the above cited judgments, the most critical piece of evidence, a DNA test was not conducted by the prosecution to establish a link between the accused persons and the pregnancy of the victim. This omission is significant, especially in a rape case where pregnancy is involved. The prosecution did not provide any plausible explanation for failing to conduct DNA testing, either on the victim or on the fetus (or subsequently born child), to determine paternity and confirm the involvement of the appellant therefore, it could not be established that it was of the appellant, as such it goes against the prosecution. The age of the victim is also doubtful as she herself had stated before the Doctor that she was aged about 19 years when her MLC was being conducted. 30 The conduct of the victim also appears to be unnatural, therefore, her version cannot be relied upon to hold the appellant as perpetrator of the crime in question and that prosecution has also failed to bring on record any cogent and clinching evidence to show that appellant is the author of the crime in question. As such, the appellant is acquitted of the charges leveled against him. 31 In that view of the matter, we are of the considered opinion that the appellant is entitled for acquittal and the learned trial Court was totally unjustified in convicting and sentencing the appellant for aforesaid offences. 32 Accordingly, the impugned judgment of conviction and order of sentence dated 08.10.2024, passed by the learned trial Court is liable to be and is hereby set aside. 33 Resultantly, the appeal stands allowed. 12 34 The appellant is stated to be in jail. He is directed to be released forthwith unless wanted in any other case. However, keeping in view the provision of Section 437-A of the Cr.P.C., the accused/appellant is directed to furnish personal bond in terms of Form No. 45 prescribed in the Cr.P.C. for a sum of Rs. 25,000/- with two reliable sureties 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 Apex Court. 35 Let a certified copy of this judgment alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.09.08 16:00:28 +0530