1 / 12 2025:CGHC:523 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 553 of 2018 Kedarram Sahu S/o Shyam Sundar Sahu Aged About 21 Years R/o Girhola, Police Station Charama, District North Bastar, Kanker Chhattisgarh, District : Kanker, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station Charama, District North Bastar, Kanker Chhattisgarh, District : Kanker, Chhattisgarh ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Ajay Kumar Chandra, Advocate For Respondent/State : Mr. Atanu Ghosh, Dy. Govt. Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 03/01/2025 1. The present criminal appeal has been filed by the appellant against the impugned judgment of conviction and sentence dated 20.12.2017, passed by learned Additional Sessions Judge (FTC) and Special Judge (Protection of Children from Sexual Offences Act, 2012), North Bastar, Kanker, in Special Criminal Case (POCSO Act) No. 61 of 2015, Digitally signed by VEDPRAKASH DEWANGAN 2 / 12 whereby the appellant has been convicted and sentenced in the following manner: Conviction Sentence Under section 376(2)(n) of IPC Rigorous imprisonment for 10 years and fine of Rs.1000/-, in default of payment of fine, additional Rigorous imprisonment for 06 months. Under section 376(2)(i) of IPC Rigorous imprisonment for 10 years and fine of Rs.1000/-, in default of payment of fine, additional Rigorous imprisonment for 06 months. Under section 506 (Part-2) of IPC Rigorous imprisonment for 03 years and fine of Rs. 500/-, in default of payment of fine, additional Rigorous imprisonment for 03 months. All the sentences will run concurrently 2. The brief facts of the case are that on 29.09.2015, the victim lodged a report against the appellant with the allegation that she is studying at Govt. Middle School, Mahurbandpara, Kanker and residing at Pre- Metric Girls Hostel, Albelapara, Kanker. On 22.04.2015, when she came to her house on vacation, the appellant, who is her neighbour, called her in his house and committed rape upon her. After committing rape upon her, he threatened her that if she would disclose the incident to anyone, he would kill her. Thereafter, he made repeated sexual intercourse with her occasionally after threatening to her. She returned back to her hostel in the month of July, 2015. *******During the routine medical examination at hostel, when she felt that her periods had stopped for two months, she informed the health worker about the same and also informed about the incident. Ultimately, the incident was being conveyed to her parents through the hostel superintendent and then she lodged the report. The offence under 3 / 12 Sections 376 and 506-B of IPC has been registered vide Exhibit P-1 against the appellant. The victim was sent for her medical examination to Community Health Centre, Charama, where PW-4/Dr. Seema Singh, has medically examined her and gave report (exhibit P-10). While her medical examination, the doctor has noticed that her hymen is ruptured and the findings are suggestive of sexual intercourse and duration of contact may be more than 72 hours. *******Two slides of her vaginal swab were prepared, sealed and handed over to police for chemical examination. She has also been referred for radiological examination for determination of her age and her report is Exhibit P-10. For determination of her age, she was radiologically examined at Maharani Hospital, Jagdalpur by PW-9/Dr. Govind Singh, who determined the radiological age of the victim is 12 to 15 years and his report is Exhibit P-17, which is based on the joints of various bones of the body. With respect to the date of birth of the victim, the police has seized the school register from Primary School, Girhola and after retaining the attested true copy of the school register, the original register was returned back to the school and the attested true copy of the school register is Exhibit P-15C. An admission and discharge certificate (exhibit P-16) has also been issued by the Headmaster of the school and according to said school record, the date of birth of the victim is 24.03.2003. Spot map (exhibit P-3) was prepared by the police and P-4 was prepared by the Patwari. The appellant was arrested on 30.09.2015 and he too was sent for his medical examination to Community Health Centre, Charama, where PW-3/Dr. R.D. Koreti has medically examined him and gave his report (exhibit P- 4 / 12 9). While medically examined the appellant, the doctor had not noticed any external injuries on his body and opined that the appellant can do sexual intercourse. *******The vaginal slides of the victim and semen slide of the appellant were sent for chemical examination to FSL, Jagdalpur. Statement of the witnesses under Section 161 of CRPC and under Section 164 of CRPC of the victim have been recorded and after completion of usual investigation, charge sheet was filed for the offence under Section 376, 506-B of IPC and Section 4 of POCSO Act before the learned trial Court on 30.11.2015. The charge for the offence under Sections 376(2)(n) and (i), 506 Part-2 of IPC and Sections 5(J)(ii),(L)/6 of POCSO Act have been framed by the learned trial Court. The appellant denied the charge and claimed trial. 3. In order to prove the charge against the appellant, the prosecution has examined 11 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 4. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence, this appeal. 5. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There is material omission and contradictions in the evidence of prosecution witnesses 5 / 12 which cannot be made basis for convicting the appellant for the alleged offence. The school admission and discharge register has not been proved by the prosecution in accordance with law. There are material discrepancies in the ossification test report of the victim, which is also not sufficient to hold that she was minor on the date of incident. He would further submit that the victim had not made any complaint to anyone and had not raised any alarm when she was subjected to rape by the appellant. Even after commission of any offence of rape, she has not made any complaint to anyone. The conduct of the victim itself is suspicious and she was consenting party in making future relations with the appellant. Therefore, no offence of rape is made out against the appellant and he is entitled for acquittal. 6. On the other hand, learned counsel for the State opposes and has submitted that from the evidence of PW-6, who proved the school register and PW-9/Dr. Govind Singh, who proved the ossification report of the victim (exhibit P-19), it is clearly established by the prosecution that the victim was minor and less than 18 years of age on the date of incident. There is nothing on record to disbelieve these evidences and to hold the victim was major on the date of incident. He would further submit that the appellant has admitted the physical relation with the victim. Although he claimed to be the consensual physical relation, but looking to the age of the victim that she was minor on the date of incident, she cannot be the consenting party in the alleged offence of rape. Therefore, the prosecution has proved its case beyond reasonable doubt against the appellant and the learned trial Court has 6 / 12 rightly convicted and sentenced the appellant for the alleged offence and his appeal is liable to be dismissed. 7. I have heard learned counsel for the parties and perused the record. 8. The first and foremost question for consideration would be the age and date of birth of the victim as to whether on the date of incident she was minor or not? 9. There are two evidence produced by the prosecution to prove the age of the victim; (i) the school record, and (ii) her ossification test report. The school register (exhibit P-14C) is sought to be proved by PW-6, who is the Headmaster of the school, who has stated in his evidence that he brought the original school register with him, in which the date of birth of the victim is mentioned as 24.03.2003. The original school register is Exhibit P-14 and its attested true copy is Exhibit P-14C. The admission and discharge certificate (exhibit P-16) has been issued by him, in which her date of birth is mentioned as 24.03.2003. In cross examination he admitted that along with the school register, there is no Kotwari panji or birth certificate annexed in it and he was not posted at the time of her admission in the school. He admitted that on the basis of the information disclosed by her parents, her date of birth is recorded in the school register. 10. PW-1/victim has stated in her evidence that she is aged about 13 years and her date of birth is 24.03.2003. She had passed her primary school examination from Primary School, Girhola. She admitted in her cross examination that at the time of her admission in the school her mother 7 / 12 has recorded her age in the school. She has got admitted in the school in the year 2009. 11. From conjoined reading of the evidence of PW-6/the headmaster of the school as well as PW-1/victim, it is quite vivid that the victim did her primary education at Primary School Girhola. She has got admitted in the school by her mother and her mother has got recorded her age in the school. From the evidence of victim/PW-1, it appears that she has got admitted in the school in the year 2009, which was duly affirmed from the school register (exhibit P-14C) and admission and discharge certificate (exhibit P-16). The victim has stated that her date of birth is 24.03.2003, which could not be rebutted by the defence in her cross examination. 12. Another piece of evidence with respect to the age of the victim is the ossification test report (exhibit P-17), which is conducted by the PW-9/Dr. Govind Singh. He stated in his evidence that on 12.10.2015, he radiologically examined the various joints of the body of the victim and came to the conclusion that her radiological age is more than 12 years but less than 15 years. He admitted in his cross examination that there might be some effect of environment or climate in the development of bones. He admitted that he issued the report (exhibit P- 17) considering the margin of 3 years of either side as per the Modi's medical jurisprudence. He further admitted that his report is including the margin of 3 years on either side. Nothing could be elicited from the evidence of this witness also, so that his evidence could be disbelieved and could be hold that the radiological age of the victim is more than 15 years. 8 / 12 13. In the matter of Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714, the Hon'ble Supreme Court has held in Para 51 and 52 as under: “51. In his report the doctor has detailed all the data on which he reached his conclusion. I do not propose to extract all such data here except pointing out that such data collected by Dr B.C. Roy is in consonance with the guidelines provided in the textbooks on medical jurisprudence (vide Modi's Medical Jurisprudence and Jhala & Raju's Medical Jurisprudence). Ossification test is done for multiple joints, for which the radiological report was obtained. The margin of error according to authorities on medical jurisprudence can be two years either way as the maximum. In this context it is useful to extract the relevant passage from Jhala & Raju's Medical Jurisprudence (6th Edn., p. 198): "If ossification test is done for a single bone the error may be two years either way. But if the test is done for multiple joints with overlapping age of fusion the margin of error may be reduced. Sometimes this margin is reduced to six months on either side." 52. Of course the doctor's estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where we grope in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of his age it has certainly to be considered.” 14. From the aforesaid evidence led by the prosecution and in absence of any contrary to the evidence led by the prosecution with respect to the age of the victim, it cannot be held that the victim was more than 18 years of age on the date of incident and the learned trial Court has 9 / 12 rightly concluded on the basis of evidence available on record that the victim was minor and aged about 12 years, 1 month, which is neither perverse nor contrary to the facts of the case. Therefore, this Court is in agreement with the finding recorded by the learned trial Court that the victim was minor on the date of incident. 15. So far as the offence of rape is concerned, I again examine the evidence of the victim/PW-1. She stated in her evidence that at the time of incident she was studying at Mahurbandpara School and residing at Pre-metric Girls' Hostel, Albelapara, Kanker. In the vacations when she came to her parents' house on 22.04.2015, the appellant called her in his house and committed rape upon her. Thereafter, he used to commit rape upon her as and when he found her alone. During the routine medical check-up in the hostel, when her periods were stopped, she informed the lady health worker and then disclosed the entire incident to her. Thereafter, through the hostel superintendent, the incident was informed to her parents and thereafter she lodged the report against the appellant. She specifically stated in her evidence that the first incident was of 22.04.2015 and the last incident was of 29.08.2015 and also stated that when she came to her house from hostel, the appellant has committed rape upon her after threatening to kill her. She remained firm in her cross-examination that the appellant has committed rape upon her repeatedly and when her periods were stopped, she informed the incident to the lady health worker and ultimately it was informed to her parents through the hostel superintendent. 16. PW-2, who is the hostel superintendent has also corroborated the evidence of the victim that while routine health check-up of the students 10 / 12 of the hostel, the victim has informed that her periods have been stopped for two months and then she disclosed the incident to the lady health worker, then she disclosed the entire incident and thereafter she conveyed the incident to her parents. She also remained firm in her cross-examination on the fact that the periods of the victim was stopped for about two months and during the routine health check-up, she disclosed the incident which ultimately conveyed to her parents. 17. PW-4/Dr. Seema Singh, who medically examined the victim has also stated that her hymen was ruptured and the findings are suggestive of sexual intercourse. 18. PW-5, who is the health worker (ANM) has stated in her evidence that while routine medical check-up in the hostel, the victim has disclosed that her periods have been stopped for two months, then she conveyed the same to hostel superintendent and advised for her medical examination. 19. From the aforesaid evidence, it is quite evident that the victim has remained firm in saying that the appellant has committed rape upon her repeatedly when she came to her parents' house from hostel and given threatening to her that if she disclosed the incident to anyone, he would kill her and her family members. The defence could not extract any material from the cross-examination of the witnesses to disbelieve their evidence. Since it is found that the victim is a minor girl and subjected to sexual intercourse by the appellant, the learned trial Court after considering the entire facts and circumstances of the case as well as 11 / 12 evidence available on record, convicted and sentenced him for the alleged offences. 20. In the matter of Parhlad and another v. State of Haryana, (2015) 8 SCC 688, the Hon’ble Supreme Court has held in Para 17 and 18 as under: “17. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of IPC but also the right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitations. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Article 14 and right to life under Article 21 of the Constitution, for they are the "fons juris" of our Constitution. The said rights are constitutionally secured. 18. Therefore, regard being had to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. The perpetrators of the crime must realise that when they indulge in such an offence, they really create a concavity in the dignity and bodily integrity of an individual which is 12 / 12 recognised, assured and affirmed by the very essence of Article 21 of the Constitution.” 21. From the aforesaid discussions, I do not find any ground to upset the findings recorded by the learned trial Court. In the result, the appeal filed by the appellant fails and is hereby dismissed. He shall undergo the entire jail sentence as awarded by the learned trial Court. 22. The record of the trial Court be sent back along with a copy of this judgment. Sd/- (Ravindra Kumar Agrawal) Judge ved