1 2025:CGHC:21726 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 511 of 2007  Sunil Kumar, S/o Pooran Lal Joshi, aged about 22 years, R/o village – Nimora, Police Station – Abhanpur, District Raipur (C.G.) ---- Appellant Versus  State of Chhattisgarh Through District Magistrate, Raipur, District Raipur (C.G.) ---- Respondent For Appellant : Mrs. Indira Tripathi, Advocate For Respondent/State : Ms. Nand Kumari Kashyap, P.L. Hon'ble Smt. Justice Rajani Dubey Judgment On Board 09/05/2025 1. This appeal arises out of the judgment of conviction and order of sentence dated 19.06.2007 passed by 14th Additional Sessions Judge, Raipur (C.G.) in Sessions Trial No.25/2007 convicting the accused/appellant under Section 376(1) IPC & sentencing him to undergo R.I. for 7 years with fine of Rs.500/-, plus default stipulation. 2. As per the prosecution case, on 17.11.2006 at around 12.00 Digitally signed by VIJAY BHARATRAO PEKDE 2 PM, when Prosecutrix (PW-3) was all alone in her house at village Nimora, and her mother had gone to field and father was sitting in her uncle’s home, at the relevant time, the accused/appellant came to her house and demanded water to drink. After drinking water, the accused/appellant caught hold of her hand, took her inside the room, lay her down on cot and committed rape with her. When the Prosecutrix (PW-3) raised her cries, her uncle Shiv came there and upon seeing her uncle, the accused/appellant ran away from the spot. Thereafter, the Prosecutrix (PW-3) narrated the incident to her parents, whereupon she along with her parents, uncle Shiv and Kotwarin Kantibai went to police station and lodge FIR (Ex.P-4) against the accused/appellant under Section 376 of IPC. After obtaining the consent of parents, the Prosecutrix was medically examined vide Ex.P-11 on 18.11.2006 by Dr. (Ms.) Deepti Bhatt (PW-8) and it has been opined by the Doctor that as the Prosecutrix has no external injury mark over body, therefore, no definite opinion regarding rape can be given and after preparing two vaginal slides for chemical examination she was referred to radiologist for age determination and as per X-ray report, the age of the Prosecutrix was found to be below 18 years. In the incident, panty of the Prosecutrix, underwear of the accused/appellant, two vaginal slides of the Prosecutrix, 3 slides of the accused/appellant were seized, the same were subjected to chemical examination and as per FSL report (Ex.P-20), spermatozoa was found on the same. The accused/appellant was also medically examined vide Ex.P-2 on 18.11.2006 and found to be capable of performing sexual intercourse. 3. After filing of the charge sheet, the trail Court has framed the charge under Section 376 IPC against the accused/appellant. 4. So as to hold the accused/appellant guilty, the prosecution examined as many as 12 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded 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 finding of the learned trial Court is erroneous and contrary to the evidence available on record because the mother of prosecutrix (PW-4) has categorically stated that since last 15-16 years, she was residing at village Nimora and Gend Lal Kurre (PW-7), brother of PW-4, has also stated that 4 before the second marriage of her sister, the Prosecutrix was aged around 03 years, which itself indicate that the Prosecutrix at the time of incident was not below the age of 16, as such, the finding of the learned trial Court regarding the age of the Prosecutrix holding her minor is not sustainable. Further, according to the ossification test, the Doctor has opined that the Prosecutrix was below 18 years of age but it cannot be presumed that she was below 16 years of age because of the variation of two years on either side. Learned counsel further submits that the learned trial Court has failed to consider the facts and circumstances of the case and the conduct of the Prosecutrix which points towards her consent but the trial Court without finding any legal evidence held the appellant guilty. Learned counsel also submits that the finding of the learned trial Court is based on conjecture and surmises and the same cannot be sufficient to held the appellant guilty specifically in the circumstances the FIR was not proved beyond reasonable doubt and the finding of the learned trial Court contrary to the rule of prudence. In support of her submission, learned counsel placed reliance on the judgment of Hon’ble Apex Court in the matter of Manak Chand @ Mani Vs. The State of Haryana [Criminal Appeal No.2276/2014 decided on 30.09.2023] 7. On the other hand, supporting the impugned judgment it has 5 been argued by the State counsel that the conviction of the accused/appellant is strictly in accordance law and there is no infirmity in the same. 8. I have heard learned counsel for the parties and perused the material available on record. 9. The question which arises for consideration before this Court whether the Prosecutrix (PW-3) was below 16 years of age at the time of incident. 10. The learned trial Court relying upon the birth certificate (Ex.P/21) of the Prosecutrix (PW-3) which has been proved by Jagdish (PW-11), the the S.H.O., Mandir Hasoud, District Raipur, has recorded the finding that the Prosecutrix, at the time of incident, was below 16 years of age. 11. According to the birth certificate (Ex.P-21), the date of birth is written as 18.10.1991 and the name of Prosecutrix is different than that of the name of the record of this case, and it is difficult to arrive at definite conclusion that the said birth certificate is of the Prosecutrix or of some other girl. The learned trial Court recorded its finding in para 65 of the impugned judgment that Gendlal (PW-7), uncle of Prosecutrix and her mother categorically stated that birth of Prosecutrix took place in village Riwa, where her uncle got the birth registered in the name of Durga in Police Station – Mandir Hasoud, which has been proved by Jagdish (PW- 11), the then S.H.O., who issued the birth certificate. The 6 learned trial Court also recorded its finding that the defence has not brought forth any fact that Durga is someone else or is the second daughter of Kumari Bai, therefore, the unrebutted evidence adduced by the prosecution on this fact that Ex.P-21 is the birth certificate of Prosecutrix (PW-3) cannot be denied. 12. Admittedly, the birth certificate is the strong proof to determine the age of the Prosecutrix but when there is ambiguity with regard to the name of the Prosecutrix, it is difficult to rely upon the same and only on the ground that the defence has not brought forth any fact that the name mentioned in the birth certificate is of Prosecutrix or someone else, the same cannot be taken into consideration while adjudicating the case. No other document like school mark list, ration card etc has been filed by the prosecution to establish that the name mentioned in the birth certificate (Ex.P-21) was that of the Prosecutrix and not of anyone else. Further, the prosecution has conducted ossification test (Ex.P-22) of the Prosecutrix (PW-3), which has been proved by Radiologist Dr. Dilip Soni (PW-12), according to which, the radiological age of the Prosecutrix was between 16 -18 and not below 16. This witness has also admitted that in ossification test, it is not possible to determine the exact age and there may be two years various on either side depending upon the food habits, climate and living 7 conditions. 13. The report of radiological examination of the Prosecutrix (PW-3) is also Ex. P-22, which shows x-rays of elbow and wrist joint were taken for determining the radiological age of the Prosecutrix and it has opined in that report Ex. P-22 that the age of the Prosecutrix (PW-3) was below 18 years. The report Ex. P-22 has been proved by PW-12 Dr. Dilip Soni. 14. Since in the present case, as per age report Ex. P-22 of the Prosecutrix PW-3, digital end of ulna bone was not fused and the digital end of radius bone was partially fused. Hence her age was less than 18 years because radius bone fuses at the age of 16 – 18 years, so her estimate age would be between 16-18 years, therefore, the age of the Prosecutrix PW-3 about between 16-18 years was rightly determined by PW-12 Dr. Dilip Soni. 15. Thus, it is held that at the time of alleged incident, the age of the Prosecutrix PW-3 was above 16 years and the findings of the learned trial Court that the Prosecutrix (PW-3) was below 16 years of age is liable to be set aside. 16. The next question which arises for consideration by this Court is whether the accused/appellant had committed rape with Prosecutrix or she was the consenting party to the act of the accused/appellant. 17. To determine the factor whether rape has been committed by accused/appellant on the Prosecutrix (PW-3) or not, 8 apart from the oral evidence, medical evidence, which is found in the present case, is also to be seen and discussed. 18. The medical examination report about rape is Ex.P-11, which shows that at the time of examination of the Prosecutrix (PW-3), secondary sexual character were well developed. Two vaginal slides were prepared, secrction found from fermices and cenix. No External injury was found around external genitalia, hymen was ruptured. Anterior and posterior vaginal wall was normal. On pelvis examination, vagina admits two fingers easily with pain and one finger easily admits without pain and thus, it was opined by PW-8 Dr. (Ms.) Deepti Bhatt that as the victim was no external injury mark over her body, therefore, no definite opinion can be given regarding commission of rape. PW-8 Dr. Deepti Bhatt has proved the medical report Ex, P-11. Thus, from the above, it appears that so far as the medical evidence pertaining to commission of offence of rape is concerned, it is nil. 19. Thus, in the present case, there remains solitary statement of the Prosecutrix (PW-3) and the question for consideration is whether reliance on her solitary statement should be placed or not. Whether corroboration is essential in rape cases before convicting an accused person ? 20. The Hon’ble Apex Court in the matter of Manak Chand (supra), observed in para 5 as under 9 “5. The evidence of a prosecutrix in a case of rape is of the same value as that of an injured witness. It is again true that convcition can be made on the basis of the sole testimony of the prosecutrix. All the same, when a conviction can be based on the sole testimony of the prosecutrix, the courts also have to be extremely careful while examining this sole testimony as cautioned in State of Punjab V. Gurmit Singh, (1996) 2 SCC 384 : “\If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibilities and be sensitive while dealing with cases involving sexual molestation.” This was reiterated by this Court in Sadashiv Ramrao Hadbe V. State of Maharashtra and Another (2006) 10 SCC 92: “It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix.” Both the prosecutrix as well as the accused have a right for a fair trial, and therefore when the 10 statement of the prosecutrix does not inspire confidence and creates a doubt, the court must look for corroborative evidence. Relying upon the case of Gurmit Singh (supra) this Court in Raju and others V. State of Madhya Pradesh (2008) 15 SCC 133 held as under :- “10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court. 11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” 11 21. If the victim is unwilling to yield to sexual intercourse, she is expected to receive injuries on her person. The absence of injuries on the body of the prosecutrix, generally, gives rise to an inference that she was consenting party to coitus. Where the prosecutrix had received multiple injuries on the various parts of her body it indicated that she offered resistance when she was subjected to sexual intercourse. It would be too much to hold that whenever a prosecutrix is found to have sustained no visible injury in a case of rape, consent on her part should be presumed. It would amount to leaving the unprotected girls at the mercy of the wolves of the society. The absence of injuries either on the accused or on the prosecutrix shows the prosecutrix did not resist but absence of injuries is not by itself sufficient to hold that the prosecutrix was a consenting party. 22. Before proceeding further, something should be said about consent. Consent is an act of reason coupled with deliberation, after the mind has weighed the good and evil on each side in a balanced manner. Consent denotes an active will in the mind a person to permit the doing of the act complained of. 23. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act, but after 12 having freely exercised a choice between resistance and assent. 24. Where the prosecutrix had sufficient opportunity not only to run away from the house but she could have also taken the help of the neighbours and the medical evidence also indicated the there were no injuries on the person of the prosecutrix including her private parts, it can be said that she was a consenting party. 25. Consent or absence of it is generally gathered from the attendant circumstances. 26. Keeping in mind the above basic principles of law, the facts of the present case and the statement of the Prosecutrix (PW-3) are being examined. 27. Perusal of the evidence of Prosecutrix (PW-3) goes to show that when she was all alone in her house, the accused/appellant came and demanded water. She gave him water and after drinking water, the accused/appellant caught hold of her hand, picked her up and took her inside the room. The evidence further goes to show that the accused/appellant lay her down on coat and switch off the light, removed his clothes and committed sexual intercourse with her. She has stated that she could not raise alarm as her mouth was gagged by the accused/appellant. At the relevant time, the uncle of Prosecutrix came there and when her uncle scolded the accused/appellant, he ran away from 13 the spot. Then she narrated the incident to family members and a report came to be lodged. In cross-examination, a question was put to this witness that her uncle was sitting in the police station and he got the report written and thereafter she was called and her thumb impression was taken, to which she states ‘Yes’ and then said that she got the report written. She herself stated that she is not educated. Further, in para 6 of her cross-examination, she has admitted that when the accused/appellant was taking her inside the room, she neither raised cries nor beaten up him. She has also admitted that when the accuse/appellant lay her down on cot and switch off the light, at that time also she did not flee from there. On being asked to this witness that even when the accused/appellant took off his clothes she kept sitting quietly, Prosecutrix (PW-3) states that first the accused/appellant took off her clothes and then his. Further, in para 7, a question was put to this witness that “At that time also she did not resist the act of the accused/appellant.”, she said ‘No’. The Prosecutrix (PW-3) has also admitted that her uncle scolded her and said that she has to file report. She has also admitted that her uncle had said that if she don't file a report, he will throw her out of the house. Further, on being asked to prosecutrix that she was taken by her uncle to police station under threat, first she states ‘No’, then she moved her head ‘Yes’. The 14 Prosecutrix (PW-3), in para 9 of her cross-examination, has also admitted that before this incident, a dispute over money transaction between the accused/appellant and her uncle had taken place, and a case was also registered in the police station in this regard against her uncle. 28. Thus, for the reasons stated above, looking to the entire facts and circumstances of the case, the only irresistible conclusion that can be drawn is that the Prosecutrix (PW-3) when she had sex with the accused appellant on 17.11.2006, she was a consenting party and, therefore, the statement of the Prosecutrix (PW-3) on the point that she was forcibly raped by the accused/appellant cannot be said to be reliable and trustworthy and in view of this conclusion, the findings of the learned 14th Addl. Sessions Judge, Raipur by which the accused/appellant was convicted for the offence under Section 376 IPC cannot be sustained and liable to be set aside and this appeal deserves to be allowed and the accused appellant is entitled for acquittal. Further, taking into consideration the evidence in para 3 of the Prosecutrix (PW-3) that a dispute over money transaction between the accused/appellant and her uncle had taken place, and a case was also registered in the police station in this regard against her uncle, thus, the possibility of accused/appellant being falsely implicated in the crime in question also cannot be ruled out. 15 29. Accordingly, this appeal filed by the accused appellant Sunil Kumar is allowed and the impugned judgment of conviction and order of sentence dated 19.06.2007 passed by the learned 14th Addl. Sessions Judge, Raipur (C.G.) are set aside and the accused appellant is acquitted of the charge levelled against him. 30. The appellant is already on bail. His bail bonds shall remain operative for a period of six months in view of Section 481 of BNSS. 31. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Rajani Dubey) JUDGE pekde