1 Reserved on- 26.03.2025 Delivered on- 16.06.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 864 of 2005 Hinglal S/o Sakharam Aged about 36 years, Occupation- Rikshaw Chalak, R/o- Village- Kurrenga Gudipara, present resident of Kangoli, Police Station- Phrejarpur District- Bastar (C.G.) ... Appellant versus State Of Chhattisgarh Through: Police Station- Phrejarpur District- Basar (C.G.) ... Respondent For Appellant : Mr. Prakash Tiwari, Advocate For Respondent : Ms. M. Asha, P.L. Hon'ble Shri Justice Sachin Singh Rajput CAV Judgement 1. This appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) has been filed by the appellant, assailing the legality, validity and judicial propriety of judgment of conviction and order of sentence dated 09.09.2005 passed by the learned Sessions Judge, District - Bastar (C.G.) (for short ‘trial Court’) in Session Trial No.202/2004 by which learned trial Court has held the appellant guilty of commission of offence and sentenced as described below - Conviction U/s 376 (1) of Indian Penal Code. Sentence Awarded R.I. for 7 years 2 2. The prosecution's case, in brief, is that on the date of the incident, June 8, 2004, at approximately 12:00 AM, the complainant, Pw-4 Prosecutrix who was about 14 years old and residing in village Kangoli with her cousin brother Jakhnitam and sister-in-law Dharmi Bai (her father lived separately, and her mother had passed away), was sleeping outside when the appellant/accused, who lived in her neighborhood, forcibly subjected her to sexual intercourse. The accused allegedly pressed her mouth shut and threatened to beat her if she attempted to scream. The prosecutrix informed her brother and sister-in-law about the incident the following morning. The next day, the prosecutrix went to the Phuejargar Police Station and lodged a report regarding the incident. The police registered the crime, obtained written consent from the prosecutrix and her brother, and, after securing permission from the sub-divisional magistrate, sent the prosecutrix for a medical examination. During the examination, the lady doctor found two finger imprints on the vaginal wall and prepared a slide of vaginal fluid for chemical analysis. This slide was subsequently seized by the police. Furthermore, a visual map of the incident location was prepared. 3. Regarding the age of the prosecutrix, an ossification test was conducted at Maharani Hospital, Jagdalpur. The doctor's report indicated that the prosecutrix was approximately between 12 and 15 years old. The police arrested the appellant/accused and had him medically examined. The medical examination found him fit for sexual intercourse. The police also seized underwear-like half pants from the appellant/accused that had white spots on them. These seized articles were sent to the Forensic Science Laboratory in Raipur for chemical examination. During investigation, an offense under 3 Section 376(1) of the Indian Penal Code (IPC) was found to have been committed by the appellant. 4. The statements of the witnesses were recorded, on completion of investigation, the charge-sheet was presented in the Court of Chief judicial Magistrate, Bastar, Jagdalpur. The case was committed to the Sessions Court, Jagdalpur who made over the case to the learned trial Court for trial. 5. Prosecution in order to prove its case examined total 7 witnesses and exhibited 12 documents. Statements of appellant was also recorded under Section 313 of CrPC, in which he denied all incriminating evidence available against him, pleaded innocence and has submitted that he has been falsely implicated in the offence. By the judgment impugned the appellant was convicted and sentenced as stated in the first paragraph. 6. Learned counsel for appellant vehemently argues that the prosecution was unable to bring home to prove the guilt of the appellant beyond reasonable doubt. He submits that judgment and conviction of the appellant based on surmises and conjunctures and the learned trial Court has failed to appreciate the evidence as adduced before the it in its proper perspective. He further submits that medical evidence available on record, does not help the prosecution as no marks of internal injury found on her body or on her private part. He further goes on to submits that even the statement of Dr. Smt. S. K. Pandey PW-2 who examined the prosecutrix, indicated that she did not find any positive evidence of rape. He further submits that from perusal of statement of the Jakhniram PW-6 as well as Dharmi Bai PW-5 who are brother and bhabhi of the prosecutrix, it is apparent that they have also not supported the case of the prosecution. Therefore, he prays that the impugned judgment may be set aside. To bolster his submissions, he placed reliance on the 4 judgment of Hon’ble Supreme Court in case of Santosh Prasad @ Santosh Kumar Vs. The State of Bihar reported in (2020) 2 S.C.R. 798 and judgment of this Court in case of Dharm Sai Vs. State of Chhattisgarh reported in (2006) CrLJ 2713. 7. On the other hand, learned State Counsel oppose the submission and submits that the statement of the prosecutrix inspire confidence and her evidence is of sterling quality. He submits that the prosecutrix was subjected to forcible sexual intercourse and well merited finding recorded by the learned trial Court may not be disturbed in this appeal. Therefore, he submits that the conviction of the accused/appellant is strictly in accordance with law and there is no infirmity in the impugned judgment. 8. I have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 9. The first point which comes for determination before this Court is with regard to age of prosecutrix. There is no documentary evidence available on record with regard to age of the prosecutrix. In the FIR (Ex.P/9) her age is shown as 14 years. She was medically examined on 09.06.2004 by Dr. Smt. S. Pandey (PW-2) in her report Ex.P/4 she was shown as 14 years. Prosecutrix was examined before the learned trial Court on 22.03.2005 and she was shown to be 16 years. In her deposition she stated that she does not know her date of birth. She came to know about her age from others. She deposed that her menstrual cycle has started. One year is not completed since start of her menstrual cycle. She was subjected to ossification test to determine her age. Dr. Govind Singh (PW-1) conducted the ossification test of prosecutrix. He deposed that he has taken the X-Ray of right wrist, right elbow, right shoulder and right hip. On the basis of appearance and union of bones, he has 5 determined the age of the prosecutrix to be above 12 years and below 15 years. He gave his report Ex.P/3. He further deposed that he has given the report as per osteology. He further deposed that the report was given as per Modis Medical Jurisprudence. He further deposed that union of bones is affected by eating habits, environment and hereditary. He goes on to depose that he has only given the opinion and cannot tell the exact age. Therefore, the prosecution was only able to bring the evidence of ossification test to determine the age of the prosecutrix. According to it the age of the prosecutrix is between 12 to 15 years. In this context it would be expedient to notice the paragraph 22 and 23 of the judgment of the Hon'ble Supreme Court in case of Jarnail Singh Vs. Stale of Haryana reported in 2013 (7) SCC 263 as under:- “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under : “12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; 6 (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 23.Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 7 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.” 10. From above it is quite evident that Hon’ble Supreme Court came to the conclusion that the procedure prescribed for determining the age of a child in conflict with law was also equally applicable to determine the age of victim of crime. It is also settled position that an ossification test provides for the estimation of age and does not provide precise or definite age. It provides for a reference age with margin of error of 1-2 years on both sides. Hon’ble Supreme Court in case of Ram Suresh Singh Vs. Prabhat Singh reported in (2009) 6 SCC 681 and Jyoti Prakash Rai Vs. State of Bihar reported in (2008) 15 SCC 223 while determining the age in context of juvenile in conflict with law held that the age determined by ossification test is not a precise one and therefore two years margin of error needs to be applied on both sides. The same principle would also apply while determining the age of child victim by ossification test. 8 11. Hon’ble Delhi High Court in case of Court On Its Own Motion Vs. State of NCT of Delhi reported in (2024) SCC Online DEL 4484, dealt with a reference on the following question of law:- “(i) Whether in POCSO cases, the Court is required to consider the lower side of the age estimation report, or the upper side of the age estimation report of a victim in cases where the age of the victim is proved through bone age ossification test? (ii) Whether the principle of „margin of error‟ is to be applicable or not in cases under the POCSO Act where the age of a victim is to be proved through bone age ossification test." Hon’ble Delhi High Court extensively discussed various judgments on the issue answered the reference in the following manner in paragraph 46 which is quoted herein under:- “As an upshot of our foregoing discussion, the Reference is answered as under:- (i) Whether in POCSO cases, the Court is required to consider the lower side of the age estimation report, or the upper side of the age estimation report of a victim in cases where the age of the victim is proved through bone age ossification test? Ans: In such cases of sexual assault, wherever, the court is called upon to determine the age of victim based on „bone age ossification report‟, the upper age given in „reference range‟ be considered as age of the victim. (ii) Whether the principle of „margin of error‟ is to be applicable or not in cases under the POCSO ACT where the age of a victim is to be proved through bone age ossification test.” Ans: Yes. The margin of error of two years is further required to be applied.” 9 12. Of course the above reference was answered in respect of child victims of sexual assault under the Protection of Children from Sexual Offence Act, 2012 (POCSO Act), however, the same would also apply while determining the age of child victim of sexual offences under IPC. In the case in hand according to medical evidence, the age of the victim is said to be between to 12 to 15 years. Taking into consideration the above authoritative pronouncement it would not be safe to hold that the prosecutrix (PW-4) to be below 16 years of age. Therefore, the learned trial Court fell in error in holding the age of the prosecutrix (PW-4) below 16 years of age. Hence, the prosecution in the opinion of this Court failed to prove the age of the prosecutrix below 16 years. 13. Now the question posed before this Court as to whether the statement of prosecutrix (PW-4) is credible, impeccable and termed as sterling witness. It is settled position of law that conviction can sustain on the solitary statement of prosecutrix if she proves the test of sterling witness. 14. Hon’ble Supreme Court, in the case of Sham Singh v. State of Haryana reported in (2018) 18 SCC 34, in paragraphs 6 and 7, it is observed and held as under: “6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the 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 court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] (SCC p. 403, para 21).] 7. It is also by now well settled that the courts must, while evaluating evidence, 10 remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635).” 15. In the case of State (NCT of Delhi) v. Pankaj Chaudhary and ors reported in (2019) 11 SCC 575, it is observed and held in paragraph 29 as under: “29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra, (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. . [State of Rajasthan v. N.K., (2000) 5 SCC 30].” 16. In a recent decision of the Hon’ble Supreme Court in Phool Singh Vs. State of Madhya Pradesh reported in (2022) 2 SCC 74, considering various case laws on the point that conviction can rest on the sole testimony of prosecutrix if it inspires confidence held in paragraph 11 as under :- “11. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained.” 17. In case of Santosh Prasad (Supra) cited by the counsel for the appellant the Hon’ble Supreme Court observed as under:- 11 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? 6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination- in-chief, the prosecutrix has stated that after jumping the fallen compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 O’clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW5 -prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of “sterling witness”. There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix – PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt”. 18. In the light of above principle of law laid down by Hon’ble Supreme Court, it is well settled preposition of law that the accused can be convicted only on the basis of the sole testimony of the prosecutrix if it is found credible and inspires confidence without any further corroboration. The testimony of the prosecutrix (PW-1) requires examination with great caution. This court has to see that the testimony of prosecutrix inspires confidence, is of high quality and caliber, on the face value acceptable, cannot create a doubt and is unassailable looking from any angle. The statement should pass the test of “sterling witness” as held in case of Santosh Prasad (Supra). 19. Prosecutrix (PW-4) speaks and understand Halbi language. Her statement was 12 recorded through an interpreter Maniram who properly understand Halbi, Hindi, Gondi and C.G. Bhatari etc language and dialects. Prosecutrix Pw-4 has deposed that about a year back she was sleeping outside her house in Kangoli. At that time appellant came and as she tried to shout she was gagged by appellant, after removing the cloths committed bad work with her. In the morning she narrated the incident to Dharmi Bai PW-5 wife of appellant and her elder sister and also to her cousin brother Akhani. Thereafter, she lodged a report in police station- Parka Ex.P/9. She was sent for medical examination and her X-ray was also conducted. Her deposition in respect of her age has already been discussed while determining her age. She states that labours and rickshaw-pullers reside nearby her house. Neighbors were also sleeping outside the house. She further deposed that voice of talks in the neighbors house can be heard in her house. She deposed that she resides in one room house. She was sleeping near the door, if she makes a noise it can be heard by her brother, people roam around nearby at everytime. Police vehicle also roams around for patrolling. She states that she knows how to sign and is not able to read and write. People who have gone with her have lodged the report in police station. She put her signature. Before lodging the report nearby people were called and when things were not materialized, report was lodged in police station. She herself stated that we demanded money for honour. The appellants stated to give Rs. 200/- then her grandfather said what will happen in Rs. 200/- and asked to lodged the report. She deposed that she was wearing suit in the night. Her cloths were removed by the appellant by opening drawstring. Thereafter, appellant removed his cloths. She admits that at that time she was in sleep. She admits that whatever happened with her happened in her sleep. She further admits that when she was wearing the cloths she saw appellant running. She admits that she did not received any injury. Being frightened, she did not 13 disclose this to her sister-in-law and nearby people in the night. She stated that for the first time, she is subjected to sexual intercourse. 20. On close scrutiny of this witnesses it appears that she lives in one room house. At the night of the incident she was sleeping near the door. People roam around the house. The place is surrounded by dense neighborhood. Any cry can be heard people nearby. Initially prosecutrix (PW-4) states that she was gagged by appellant when she tried to shout. In the cross-examination she stated that the incident occurred when she was in sleep. Her cloths were removed by the appellant and it does not appear that she made any attempt to reject the efforts. She only stated that appellant did the bad work. In explicit terms she did not say she was subjected to sexual intercourse. She has only put her signature on FIR Ex.P/9. She said to have demanded money for her honour and when things could not materialized her grandfather asked to lodged the report. Taking into consideration of the above evidence available on the record this Court is unable to hold that the prosecutrix PW-4 proved the test of sterling witness. Apart from this the medical evidence does not support the case of the prosecution. Dr. Smt. S. Pandey PW-2 who has medically examined the prosecutrix PW-4 has deposed that after examination she did not find any injury on person of prosecutrix PW-4. She did not notice any injury on the private parts of the prosecutrix PW-4. She did not have any pain. Hymen was old torned off. She further stated that prosecutrix PW-4 was habitual to sexual intercourse. It would be expedient to note here that this medical evidence is opposed to the statement of the prosecutrix PW-4, that on the date of incident for first time she had sexual intercourse. 21. In light of the above discussion, in the opinion of this Court, the prosecution was unable to prove the case against the appellant beyond reasonable doubt. 14 The learned trial Court committed an error in convicting the appellant. As a result, the appeal is allowed. Impugned judgment is hereby set aside. The appellant is acquitted from charge against him. 22. Appellant is reported to be on bail. His bail bond will remain inforce for six months in the view of provisions of Section 481 of the BNSS, 2023. 23. Record along with copy of this judgment be sent back to trial Court for information and necessary action. Sd/- (Sachin Singh Rajput) Judge H.Ansari HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2025.06.16 16:49:43 +0530