1 2025:CGHC:41994-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1205 of 2019 1 - Bhojram Yadav, S/o Shri Duharam Yadav, Aged About 21 Years, R/o Godma, P.S.- Balco (Chowki Rajgamar), Revenue and Civil District- Korba, Chhattisgarh. ... Appellant versus 1 - State of Chhattisgarh Through: Police Station AJJAK, District- Korba, Chhattisgarh. ... Respondent(s) For Appellant : Mr. Anshul Tiwari, Advocate For Respondent(s)/State : Mr. Ashish Shukla, Additional Advocate General Hon'ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Amitendra Kishore Prasad Judgment on Board Per Rajani Dubey 20/08/2025 1. The present appeal under Section 374(2) of Code of Criminal Procedure has been filed against the the judgment of conviction and 2 order of sentence dated 21.12.2018 passed by learned Special Judge (SC/ST Act), Korba (C.G.) in Special Sessions Trial No. 30/2016 whereby, the trial Court has convicted the appellant for the offence punishable under Sections 363, 366, 376(2) of IPC, Section 6 of POCSO Act, 2012 and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. However, keeping in view the provision of Section 42 of POCSO Act, the appellant has been sentenced as under:- Conviction Sentence U/s 363 of IPC R.I. for 3 years with fine of Rs.500/- and in default of payment of fine, additional R.I. for 3 months U/s 366 of IPC R.I. for 5 years with fine of Rs.500/- and in default of payment of fine, additional R.I. for 4 months U/s 6 of the POCSO Act, 2012 R.I. for 10 years with fine of Rs.500/- and in default of payment of fine, additional R.I. for 5 months U/s 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Life imprisonment with fine of Rs.1000/- and in default of payment of fine, additional R.I. for 5 months 3 (All the sentences will run concurrently) 2. Facts of the case, in brief, is that on 14/07/2016, the victim's father had lodged a missing report of his 16-year-old minor girl at Police Station- Rajgamar. During the search for the missing victim, on 29/07/2016, the missing victim was recovered and, thereafter, on being asked, she told that on 01/07/2016, Bhojram Yadav of her village lured her and took her to Narkalo Dharamjaygarh District Raigarh and married her in a temple and had physical relations with her. In this case, the diary was sent to Ajaak after finding the offence committed under Sections 363, 366, 376 of IPC and Section 4 of the Protection of Children from Sexual Offences Act 2012 and Section 3(2)(v) of the Scheduled Castes/Tribes (Atrocities Prevention) Act 1989. During investigation, statements of the complainant and witnesses were recorded and on the basis of available evidence, it was found that the accused, knowing the victim to be a tribal, abducted her and committed rape on her. Section 3(1) (12) of the Scheduled Castes/Tribes (Atrocities) Act, 1989 was added to the case. After completion of usual investigation, charge- sheet was filed before the learned trial Court. Learned trial Court framed the charges under Sections 363, 366, 376(2) of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 and Section 3(2)(v) of the Scheduled Castes/Tribes (Atrocities Prevention) Act 1989, to which appellant abjured his guilt and prayed for trial. 3. So as to hold the accused/appellant guilty, the prosecution has 4 examined as many as 18 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied all the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. However, he did not adduce any evidence in his defence. 4. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 21.12.2018, finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant as mentioned in para 1 of the judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the impugned judgment passed by the learned trial Court suffers from illegality and deserves to be set-aside. The learned trial Court has failed to appreciate that the prosecution has failed to prove its case beyond all reasonable doubts. Admittedly, the appellant had married to prosecutrix with her consent. There is material contradictions and omissions in the statement of the prosecutrix recorded by the police on 29.07.2016 and 13.04.2017. Two statements of prosecutrix were recorded under Section 161 of Code of Criminal Procedure and one statement was recorded under Section 164 of Code of Criminal Procedure. It is evident from all statements of the prosecutrix that she is not firmed in her statement and there is complete deviation from the statements recorded earlier, which itself shows that the prosecution has failed to prove its case beyond all reasonable doubts. He further states that the prosecution has utterly failed to prove the age of the prosecutrix below 18 years of age. Also, statements of the prosecutrix clearly shows that she was a consenting 5 party to the act of the appellant and appellant performed marriage with her with her consent but the learned trial Court did not appreciate all these facts and wrongly convicted the appellant for the alleged offence. Therefore, the findings recorded by the learned trial Court are not sustainable in the eyes of law and liable to be set aside. To buttress his submission, he has placed reliance on the decisions passed by Hon’ble Supreme Court in the matter of Masumsha Hasanasha Musalman Vs. State of Maharashtra; (2000) 3 SCC 557, Alamelu and another Vs. State represented by Inspector of Police and other connected matters; (2011) 2 SCC 385, Santosh Prasad alias Santosh Kumar Vs. State of Bihar; (2020) 3 SCC 443 and Shajan Skaria Vs. State of Kerala and another; 2024 SCC OnLine SC 2249 & judgment dated 29.01.2024 passed in criminal appeal arising out of SLP (Crl.) No(s). 6367 of 2023 {Dashrath Sahu Vs. State of Chhattisgarh}. 6. On the other hand, learned State counsel supports the impugned judgment and submits that the learned trial Court rightly appreciated oral and documentary evidence and convicted the appellant accordingly. Hence, the impugned judgment is well merited and does not call for any interference by this Court. 7. Heard learned counsel for the parties and perused the material available on record. 8. It is clear from record of learned trial Court that the learned trial Court framed charges under Sections 363, 366, 376(2) of IPC and Section 6 of POCSO Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and after appreciation of oral and documentary evidence, the learned trial Court 6 convicted the appellant for the offence punishable under Sections 363, 366, 376(2) of IPC and Section 6 of POCSO Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced him accordingly. 9. As per the prosecution, on the date of incident, i.e. on 01.07.2016, prosecutrix was below 18 years of age and in this regard, prosecution filed admission and discharge register vide Ex.P/8. 10. First of all, this Court proceeds to examine the evidence on record to ascertain whether on the date of incident the prosecutrix was below 18 years of age or not? 11.Prosecutrix (P.W.-3) stated that on the date of incident, she was aged about 16 years and her date of birth is 07.05.2000. 12. Jyoti Sharma (P.W.-4), Principal of Primary School Godma, Tehsil and District- Korba stated that the police seized admission and discharge register (Ex.P/8) as per seizure memo (Ex.P/9). According to the said register, the name of the prosecutrix was at serial No. 315 and she got admission in school on 30.06.2006 and leaved school on 11.06.2011 and in the said register, her date of birth was written as 07.05.2000. In her cross-examination, she admitted that she was not posted in the school at the time of admission of the prosecutrix. Therefore, she did not know at to on what basis, the entry with regard to date of birth of the prosecutrix was made in the dakhil kharij register. 13. Mother of the prosecutrix (P.W.-1) stated that on the date of incident, her daughter (prosecutrix) was aged about 16 years. However, in her cross-examination, she admitted that she is an illiterate lady. she does 7 not remember the date of birth of her daughter (prosecutrix). 14. Father of the prosecutrix (P.W.-2) stated that at the time of incident, her daughter (prosecutrix) was aged about 16 years. In his cross- examination, he voluntarily stated that he is not an educated person, so he cannot tell the date of birth of the prosecutrix. 15. 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 8 Ravinder Singh Gorkhi Vs. State of U.P.4 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 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." 16. In light of aforesaid decisions of the Hon'ble Supreme Court, in the 9 present case also, it is evident that mother and father of the prosecutrix admitted that the they do not remember the date of birth of her daughter (Prosecutrix). Jyoti Sharma (Principal) stated that she is not the author of the entry made in dakhil kharij register with regard to date of birth of the prosecutrix. Thus, we find that in the present case, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was minor on the date of incident, yet the learned trial Court has recorded in the impugned judgment that she was minor. Hence, we set aside the finding so recorded by the learned trial Court and hold that the prosecution has not been able to prove successfully that on the date of incident prosecutrix was minor. 17. Now we have to consider that as to whether the accused/appellant allured the prosecutrix on the pretext of marriage and committed forcible sexual intercourse with her or not? 18. Prosecutrix (P.W.-3) stated that on 01.07.2016, at around 9:00 am, the accused Bhojram Yadav came to our house. At that time, she was alone at home. Her parents and siblings had gone to work in the fields. The accused told her that if she does not go with him, he will kill her. She refused the same. Then, the accused again threatened to kill her and forcibly took her with him. In para 10 of her cross-examination, she admits that she knew the accused for about two-three months before the incident. In para 11, she admits that from A to A part of Ex.D/1 which is a police statement, she told that the accused loves her and she also loves him. 10 In para 16, she admits that she did not call or summon any person for help at Rajgamar bus stand and in the auto when the accused was taking her from Rajgamar to Korba and neither did she tell the auto driver that the accused was taking her forcibly. She voluntarily stated that the accused had threatened to kill her, therefore she did not call or summon any person for help at Rajgamar bus stand during the said period and did not tell the auto driver. In para 18, she admits that while giving the statement to the police she had told that after marriage they used to sleep on one bed in one room and accused Bhojram had physical relations with her 7-8 times during the 27 days they lived together. 19. Dr. K.B. Sonkar (P.W.-11) examined the prosecutrix on 29.07.2016 and she did not find any external or internal injuries on her body. She opined that the victim/prosecutrix was habitual to sexual intercourse. She advised to refer the victim/prosecutrix to a radiologist for determination of her age. The medical examination report prepared by her is Ex.P/5 and admitted her signature from C to C part of the said report. 20. As per FSL report, no semen was found on the vaginal slide of the prosecutrix. As such, medical report does not support the case of the prosecution. 21. Upon perusal of record, it is clear that the prosecutrix in her statement recorded under Section 164 of Cr.P.C. before the Judicial Magistrate First Class, stated that her mother used to say that she will get her married, so on 01.07.2016, without informing anyone, she went to Bhojram's village Narkalo with him. Bhojram and she liked each other and they both got married to each other and lived like husband and wife in village Narkalo. Prosecutrix admitted 11 this suggestion of defence that she gave the aforesaid statement vide Ex.P/6 but she explained that this statement was given under the threat given by the accused to her. 22. Hon’ble Apex Court in the matter of Santosh Prasad (supra) held in para 5.4.2. as under:- 5.4.2. In Rai Sandeep³; {(2012) 8 SCC 21}, this Court had an occasion to consider who can be said to be a "sterling witness". In para 22, it is observed and held as under: (SCC p. 29) "22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should 12 give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 23. With the aforesaid decision in mind, it is required to be considered, 13 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? 24. 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. The conduct of the prosecutrix clearly shows that she was a consenting party to the act of the appellant. This Court has already held that the prosecution has utterly failed to prove that the prosecutrix was below 18 years of age at the time of incident. 25. Close scrutiny of the evidence makes it clear that the prosecutrix was a consenting party to the act of the appellant. She went with the appellant and stayed with him of her own free will and she was having love affair with the appellant. Since this Court already observed that the prosecution has failed to prove that on the date of incident she was minor, in the given set of facts and circumstances of the case, no offence is made out against the appellant. 26. In the result, the appeal is allowed and the impugned judgment dated 21.12.2018 of the learned trial Court is hereby set aside. The appellant is acquitted of the charges under Sections 363, 366 of IPC, Section 6 of POCSO Act. Consequently, he is acquitted of charge under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 27. The appellant is reported to be on bail, therefore, keeping in view the provisions of Section 437-A of Cr.P.C. (481 of the B.N.S.S.), the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 14 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety 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 Hon’ble Supreme Court. 28. 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/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV