1 2025:CGHC:6845 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 731 of 2005 Judgment Reserved on – 02.12.2024 Judgment Delivered on - 06 . 02 .202 5  Ramnaresh S/o Siyaram, aged about 29 years, R/o Village- Puri, Police Station- Charama, District- Kanker (C.G.) ---- Appellant Versus  State of Chhattisgarh through Police Station- Charama, District- Kanker (C.G.) ----Respondent/State _____________________________________________________________ For Appellant : Mr. Prakash Tiwari , Advocate. For State : Ms. Nandkumari Kashyap, Panel Lawyer. _____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey CAV Judgement 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 30.08.2005 passed by First Additional Sessions Judge, Kanker, District- Kanker (C.G.) in Sessions Trial No. 140/2005, wherein the said Court convicted the appellant and sentenced him as under:- Conviction Sentence Under Section 376 (1) of IPC R.I. for 07 years and payment of fine Rs. 1,000/-, in default of payment of fine, to undergo additional R.I. for three months. 2 Prosecution Story:- 2. Brief facts of the case are that on 21.01.2005 at about 9:15 pm, the complainant/prosecutrix (PW-01), aged about 13 years, studying in class- VIth , while she was returning from the house of Jaggu after watching the T.V. programme, the present appellant met her on the way and caught hold her and gagged her mouth by putting scarf inside her mouth and thereafter forcibly taken her towards the filed (badhi) of one Surajlal and he committed sexual intercourse with her, against her will and without consent. In the meanwhile, her brother (PW-2) and his friend Yashwant (PW-3) came to the spot, as such, the appellant fled from the spot by leaving his underwear and slippers. The complainant/prosecutrix (PW-01) narrated the whole incident to her brother (PW-1). Thereafter, a village meeting was convened and FIR (Ex. P/1) was lodged against the appellant at Police Station- Charama for offence under Sections 366-A & 376 of IPC. During the investigation, obtained the consent letter from the PW-2, then, the prosecutrix was sent for medical examination. Spot map was prepared vide Ex. P/18. Prosecutrix (PW-1) was sent to K.D. Hospital, Kanker with Ex. P/16, regarding the age confirmation and from where X-Ray report was received vide Ex. P/17. Underwear and slippers were seized from the brother (PW-2) of the prosecutrix before the witnesses vide Ex. P/4. As per Ex. P/11, Identification panchnama was prepared for the said seized articles. Thereafter the school marksheet and underwear were seized vide Ex. P/2 of the prosecutrix, which were produced by the prosecutrix before the witnesses. As per Ex. P/14, Dakhil Kharij Register was seized from the Headmaster, accused 3 person/appellant was arrested vide Ex. P/2. As per Ex. P/7, the appellant was also sent for his medical examination. Medical examination report of the prosecutrix is Ex. P/17 and Ex. P/8 of the appellant, were received from the doctors. Thereafter the vaginal swab was prepared and the same was sealed and sent for its FSL examination. Statements of all the witnesses have been recorded. The prosecution after conducting the investigation, led the charge-sheet before the Court of Chief Judicial Magistrate- Kanker as Criminal Case No. 359/2005, thereafter the matter was committed to the Court of First Additional Sessions Judge, Kanker, District- Kanker (C.G.) and after registration of the Sessions Trial No. 140/2005, the trial Court framed charges for offence under Section 376 (1) of IPC against the accused/appellant. 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 10 witnesses as well as statement recorded of complainant/prosecutrix as PW- 01. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C., in which he denied the incriminating charges leveled against him and pleaded his innocence that he has falsely implicated in this case. The appellant has examined 01 witness to substantiate its case. 4. The learned trial Court after hearing the counsel for the respective parties and considered the material available on record has convicted and sentenced the accused/appellant as mentioned in para 1 of this judgment. Hence, this present appeal. Submissions of the parties:- 5. Learned counsel for the appellant submits that the impugned judgment is 4 contrary to the law, facts and circumstances of the case and the evidence available on record. The judgment and conviction of the appellant based on conjectures and surmises, trial Court has not appreciated the evidence adduced before it in its right perspective. The medical evidence does not lead the prosecution as no marks of external injury and internal injury were found on her body, and no admissible and clinching evidence can be gathered regarding recent rape. Even, Dr. Ranjna Gupta (PW-8) has not given any definite opinion regarding commission of rape and the entire prosecution story appears to be concocted from its tenure and texture. He next argued that learned trial Court did not appreciate this fact that prosecution has failed to prove the age of the prosecutrix was below 18 years and from the conduct of the prosecutrix, it is evident that she was a consenting party and if this be so, the conviction of the appellant under Section 376 (1) of IPC cannot be sustained. Learned trial Court has also committed material illegality in not appreciating the statement of Yashwant (PW-3), who has specifically narrated that appellant and the prosecutrix were strolling on the field by holding each other hands and this witness was the first person who saw them together and informed to PW-2 and the same has been corroborated by its statement and the learned trial Court also did not appreciate this fact that the FIR was lodged after several hours of the incident and delay in lodging the same was not explained by the prosecution. Thus, findings recorded by learned trial Court are highly perverse, so, the impugned judgment of conviction and order of sentence is liable to be set aside. In support of his contention, he placed reliance upon the decision of Hon’ble Apex Court in the matter of Jinish Lal Sha vs. State of Bihar, reported in 2003 (1) SCC 605 and upon the decision of this Court in the matter of Sombahadur Rana vs. 5 State of Chhattisgarh, passed in Criminal Appeal No. 589 of 2013. 6. Per contra, learned State counsel supporting the impugned judgment submits that the learned trial Court minutely appreciated the oral and documentary evidence available on record and learned trial Court rightly convicted the appellant for the offence punishable under Section 376 (1) of IPC, therefore, this appeal being without any merit is liable to be dismissed. 7. I have heard learned counsel for the parties and perused the material available on record including the impugned judgment. Discussion & Analysis:- 8. It is clear from record of learned trial Court that the trial Court has framed charge for offence punishable under Section 376 (1) of IPC against the appellant. After hearing both the parties and appreciating oral and documentary evidence available on record, learned trial Court convicted the appellant for offence punishable under Section 376 (1) of IPC. It is clear from record of learned trial Court that prosecution has examined as many as 10 witnesses to prove its case against the appellant. As per the prosecution, the age of the prosecutrix was 13 years at the time of incident. 9. N. K. Shukla (PW-5), who was the Headmaster of Govt. Middle School, Puri, has stated in his examination-in-chief that police had seized admission register/dakhil kharij register, which is Ex. P/9 and as per Ex. P/9, date of birth of the prosecutrix is 02.09.1991 and she was admitted in Class-VIth on 25.06.2004. He also admitted this fact in his cross- 6 examination that it is true that marksheet of the prosecutrix (PW-1) is Ex. P/10 i.e., Class-IVth mark-sheet, in which date of birth of the prosecutrix was written as 09.02.1991 and it is also true that in Ex. P/9 date of birth of the prosecutrix was written on the basis of the transfer certificate of previous school, though he did not bring the prosecutrix’s transfer certificate. 10. Dr. R.C. Thakur (PW-9) has stated in his deposition that he conducted the X-Ray of prosecutrix regarding her age and as per X-Ray report (Ex. P/16) of the prosecutrix, her age is about 12 to 16 years and gave his report vide Ex. P/17, in which he admitted his signature on A to A part. 11. It has been held by the Hon’ble Apex Court in the matter of Jinish Lal Sha (supra) in para 5 which reads as under:- “5. PW-10 the doctor in his evidence has stated that PW-1's X-ray photograph showed partial epiphy seal fusion of iliac crest. In her opinion, PW-1 appeared to be 17 years old which opinion of the Dr. is from the very language used by her shows it to be approximate. The physique of PW-1 as explained by PW-10 also indicates the probability of PW-1 being above the age of 18 years. In this background if we examine the evidence of PWs. 6 and 10 it is clear that evidence of PW-1 is wholly unreliable when she states that she was only about 14 years old. Even though PW-10 Dr. stated that PW-1 appeared to be 17 years old cannot be held that this evidence is conclusive enough to come to the conclusion that PW-1 was really below 18 years on the date of incidence, in view of positive statements made by PW-6 the father…..’’ 12. As per statement of Dr. R.C. Thakur (PW-9), age of the prosecutrix is 12 to 16 years, it is well settled principal of law that in X-Ray report (Ex. P/17) 7 there may be age variation of two years on either side as per the medical jurisprudence. 13. It is also clear from the statement of N. K. Shukla (PW-5) that in the Admission Register/Dakhil Kharij Register (Ex. P/9), the date of birth entry of the prosecutrix was made on the basis of a transfer certificate, and the prosecutrix was admitted to Class- VIth. 14. 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 8 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 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.” 15. It is vivid that prosecution has failed to prove its case that the prosecutrix did not attain her majority at the time of incident. The prosecutrix (PW-1) has stated in her examination-in-chief that on the date of incident, the present appellant met her on the way and caught hold her and gagged her mouth by putting scarf inside her mouth and thereafter forcibly taken her towards the field (badhi) of one Surajlal, where he committed sexual intercourse with her, against her will and without consent. In the meanwhile, her brother (PW-2) and his friend (PW-3) came there, then the appellant fled from the spot by leaving his underwear and slippers. She narrated the whole incident to her brother (PW-2), thereafter on the next day of incident, village meeting was convened and FIR (Ex. P/1) was lodged against the appellant at Police Station-Charama for the alleged offence, in which she admitted her signature on A to A part. In her cross- examination, she admitted this fact that in para 5 that “…….;g lgh gS fd lwjt yky ds ckM+h dks vkjksih dqndj ikj fd;k Fkk xokg dk Lor% dguk gS fd eq>s ikdj og nwljs rjQ dqnk FkkA ftl le; vkjksih eq>s vkjksi ikdj eq>s ckM+h ds RkjQ ys x;k Fkk rks eSa ugh fpYykbZ Fkh xokg Lor% dgrk gS fd vkjksih us esjs eqag dks cka/k fn;k Fkk vkjksih esjs eqag dks xeNk ls esjs eqag 9 dks cak/k fn;k Fkk A”” She also admitted this fact that when the appellant tied her mouth with a scarf and removed his clothes and her clothes, she did not raise any alarm for help by removing the scarf (gamcha). She also further admitted that when her brother (PW-2) and his friend (PW-3) reached to the spot, they scolded her. However, she denied the suggestion that she is a consenting party. 16. PW-2, brother of the prosecutrix has stated in his deposition that when he was in his home, his friend came and told him that one person is doing wrong things with her sister (prosecutrix), then he went with him to catch the appellant, but he fled from the spot by leaving his underwear and slippers. On the next day of incident, village meeting was convened, in which accused was also called, however, he denied the allegation, which was made against him. Thereafter, PW-2 went along with the prosecutrix to the concerned police station to lodge the report against the appellant. 17. Yashwant (PW-3) has stated in his cross-examination that he saw one girl and boy strolling on the field by holding each other hands, but he did not saw that prosecutrix’s mouth was tied with scarf. 18. Dr. Ranjana Gupta (PW-8) examined the prosecutrix (PW-1) and she did not find any internal injuries upon her body and hymen was old ruptured. She could not give any definite opinion regarding sexual intercourse with the prosecutrix between 12 to 24 hours and gave her report vide Ex. P/16 and admitted her signature in Ex. P/16. 19. The conduct of the prosecutrix clearly shows that she is a consenting 10 party and this Court finds that prosecution has failed to prove this fact that the prosecutrix (PW-1) did not attain her majority at the time of incident and also medical evidence has not supported the prosecution case. 20. Close scrutiny of evidence of prosecutrix (PW-1) and all witnesses, makes it clear that the prosecutrix went with the appellant with her own free will towards the field and she is a consenting party to the act of the appellant. 21. The findings recorded by learned trial Court, thus appear to be beyond proper appreciation of the evidence adduced by the prosecution which cannot have affirmation from this Court. Since, the prosecution has failed on all fronts to prove its case, the benefit, of course, has go to the accused. The appeal is thus allowed, judgment impugned is set aside. The appellant is acquitted of the charge under Section 376 (1) of IPC. 22. The appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provision of Section 437-A of Cr.PC. 23. The Trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE AMIT PATEL Digitally signed by AMIT PATEL Date: 2025.02.06 17:21:03 +0530