1 2025:CGHC:7625 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1287 of 2018 Khokhan Dey S/o Late Narhari Dey Aged About 46 Years R/o Village P. V. 57, Kali Nagar, P. S. Pankhajur, District North Bastar Kanker Chhattisgarh, District : Kanker, Chhattisgarh ... Appellant versus The State Of Chhattisgarh Through The Police Station Durgukondal, District North Bastar Kanker Chhattisgarh, District : Kanker, Chhattisgarh ... Respondent (Cause title taken from Case Information System) For Appellant : Ms. Iturani Mukharjee, Advocate For Respondent/State : Mr. Atanu Ghosh, Dy. Govt. Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 12/02/2025 1. Present is a criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973, against the impugned judgment of conviction and sentence dated 13.07.2018, passed by learned Special Judge (Protection of Children from Sexual Offences Act, 2012) Bhanupratappur, District North Bastar, Kanker, in Special Digitally signed by VEDPRAKASH DEWANGAN 2 Criminal Case (POCSO Act) No. 46 of 2017, whereby the appellant has been convicted and sentenced in the following manner: Conviction Sentence U/s. 342 of IPC R.I. for 01 year and fine of Rs. 1000/-, in default of payment of fine, additional R.I. for one month. U/s. 506-II of IPC R.I. for 05 years and fine of Rs. 1000/-, in default of payment of fine, additional R.I. for 03 months. U/s. 376(2)(i) of IPC R.I. for 10 years and fine of Rs. 1000/-, in default of payment of fine, additional R.I. for one month. All the sentences are directed to be run concurrently. 2. The facts of the case are that the victim/PW-1 has lodged a written complaint (exhibit P-1) on 30.01.2016 with the allegation that on 27.01.2016, when she had gone to the shop of the appellant to purchase some snacks, he dragged her towards inside of his house and committed rape upon her. He threatened her not to disclose the incident and after about one hour, he opened the door of his house, gave her Rs. 100/- cash and one packet of snacks. On 29.01.2016, when her parents came from hospital, she disclosed the incident to them and thereafter, a meeting was convened in the village, in which also she disclosed about the incident and then report has been lodged. Based on the written complaint (exhibit P-1), the FIR (exhibit P- 2) was registered against the appellant for the offence under Sections 342, 376(2)(i) and 506 of IPC and Sections 3A/4 of POCSO Act. The victim was sent for her medical examination to Community 3 Health Centre, Bhanupratappur for her medical examination. Since there was no woman medical officer available in Community Health Centre, Bhanupratappur, she was referred to District Hospital, Kanker, where PW-12/Dr. Sarita Kumeti has medically examined her and gave report (exhibit P-12). She found injuries and pinkish redness in her private part, her hymen was ruptured and opined that, according to above findings, intercourse had been done, further report given after FSL. Two slides of her vaginal swab were prepared, sealed and handed over to police for its chemical examination. The victim was also referred for X-ray examination for determination of her age. Spot map (exhibit P-5) was prepared by the police. One skirt of the victim has been seized vide seizure memo (exhibit P-6). Rs. 100/- cash and the underwear of the victim has also been seized vide seizure memo (exhibit P-7). Spot map (exhibit P-9) was prepared by the Patwari. The birth certificate of the victim has been seized vide seizure memo (exhibit P-10), in which the date of birth of the victim is recorded as 23.02.2002. The school register has also been seized from Middle School, Uttamar with respect to the date of birth and age of the victim vide seizure memo (exhibit P-11) and after retaining its attested true copy (exhibit P-29C), the original register was returned back to the school. The victim was radiologically examined at Maharani Hospital, Jagdalpur by PW-14/Dr. Govind Singh, who after examination of joints of bones of the victim opined that her age is approximately 14-15 years. 4 The appellant was arrested on 06.06.2017 and he too was sent for his medical examination to Community Health Centre, Durgukondal, where he was medically examined by PW-20/Dr. Manoj Kishore, who gave his report (exhibit P-30). The vaginal slide of the victim and her clothes were sent for chemical examination to Regional FSL, Jagdalpur, from where report (exhibit P-38) was received and according to the FSL report, semen and sperm were found present in the vaginal slide of the victim. However, no semen and sperm were found on the clothes of the victim. The semen slide of the appellant was also sent for its chemical examination to Regional FSL, Jagdalpur, from where report (exhibit P-37) was received and semen and sperm were found on the semen slide of the appellant. Statement of the witnesses under section 161 of CRPC have been recorded and the statement under section 164 of CRPC have also been recorded and after completion of usual investigation, charge sheet was filed against the appellant for the offence under sections 342, 376(2)(i), 506 of IPC and section 3A/4 of POCSO Act before the learned trial Court. 3. Learned trial Court has framed the charge against the appellant for the offence under sections 342, 376(2)(i), 506 part-II of IPC and section 3A/4 of POCSO Act. The appellant denied the charge and claimed trial. 4. In order to establish the charge against the appellant, the prosecution has examined as many as 22 witnesses. Statement of the appellant 5 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. 5. 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 judgement, hence this appeal. 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses, which cannot be made basis for conviction of the appellant in the offence in question. There is no legally admissible evidence produced by the prosecution to prove that the victim was minor and less than 18 years of age on the date of incident. There may be error of margin of three years in either side on the ossification report submitted by the doctor. From the said ossification report, the age of the victim is found in between 14 to 15 years and after taking the margin of error of three years in positive side, the victim can be considered to be 18 years of age and a major girl. The victim was having love affair with the appellant and she herself engaged in making physical relation with the appellant without raising any objection. When their relationship came into knowledge of her parents, she has lodged the report. She being the consenting party, no offence either the wrongful restraint, threatening or rape are made out against the appellant and he is entitled for acquittal. 6 7. On the other hand, learned counsel for the State opposes and has submitted that from the ossification report/Exhibit P-16 as well as the birth certificate of the victim seized in the case vide seizure memo/Exhibit P-10, she is found to be less than 16 years of age. She was not able to give her consent due to her minority and she was subjected to rape by the appellant, which has been supported by her MLC report/Exhibit P-12, in which injuries have been found on her private part. Further, in the underwear of the victim and vaginal slide of the victim, semen and sperm were found, which supported the prosecution's case that the victim was being subjected to rape by the appellant. Therefore, the learned trial Court has rightly convicted and sentenced the appellant, which needs no interference. 8. I have heard learned counsel for the parties and perused the record of the case. 9. The first and foremost question arises for consideration would be the age of the victim as to whether on the date of incident she was less than 16 years of age or not ? 10. The prosecution has mainly relied upon the ossification test report of the victim/Exhibit P-16, in which her age is shown in between 14-15 years and the birth certificate issued by the Station House Officer, Police Station Durgukondal under the authority of Registrar, Birth and Deaths, Government of Chhattisgarh, which has been seized in the case vide seizure memo /Exhibit P-10. 7 11. PW-14, Dr. Govind Singh who radiologically examined the victim on 22.10.2016 and after considering the various bone joints of her body came into conclusion that the victim was aged about 14-15 years and he proved the ossification test report/Exhibit P-16 and X-ray plate/Exhibit P-17 and 18. In cross-examination though he admitted that there is margin of error of 3 years on either side due to environment, genetic reasons and diet. However, the age determined by the doctor could not be materially disproved by the defence in his cross-examination. He proved the approximate age of the victim on the basis of various bone joints of her body. 12. In the matter of Ramdeo Chauhan @ Raj Nath v. State of Assam, (2001) 5 SCC 714, in Para 51 and 52, the Hon’ble Supreme Court has considered the reliability of the ossification test report of the victim to determine her age, which reads 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 are in consonance with the guidelines provided in the text- books on medical jurisprudence. (vide Modis Medical Jurisprudence and Jhala & Rajus 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 & Rajus Medical Jurisprudence (6th Edn., page 198): 8 “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 doctors estimates 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. ……..” 13. The age determined by the doctor on the basis of ossification test of the victim, is supported by the birth certificate, which has been seized in the case vide seizure memo/Exhibit P-10. A copy of the birth certificate of the victim is also available in the case and according to the birth certificate the date of birth of the victim is 23.02.2002. The birth certificate is admissible under section 35 of the Indian Evidence Act, 1872 as it is the extract of the official record maintained in discharge of the official duty by a public servant. The birth certificate cannot be disbelieved without there being any specific challenge to it. 14. The prosecution has also relied upon the school register of the victim (exhibit P-29C), which is sought to be proved by PW-18, who is the teacher of the school. Since, PW-18 is not the author of the school register as reflected from his evidence and the basis on which the date of birth of the victim is recorded in the school register, has also not been disclosed, no much relevance can be placed on the said 9 school register to determine the age of the victim, particularly when the other evidences like birth certificate and ossification test report is available in the case. 15. The Hon’ble Supreme Court in the matter of Jarnail Singh v. State of Haryana, (2013) 7 SCC 263 has laid down the principles, on which age of the victim could be determined. Para 20 of the said judgment is reproduced hereinunder: “20. During the course of hearing of the present appeal, learned counsel for the appellant vehemently contested the determination of the High Court in the impugned judgment, wherein it had concluded, that the prosecutrix VW- PW6 was a minor. Insofar as the instant aspect of the matter is concerned, it was pointed out, that the sexual organs of the prosecutrix VW- PW6 were found to be fully developed by Dr. Kanta Dhankar- PW1. Her hymen was found to be ruptured. It was also seen during the medico-legal examination of the prosecutrix VW- PW6, that the vagina admitted two/three fingers easily. Learned counsel for the appellant-accused Jarnail Singh, also invited our attention to the cross-examination of Dr. Kanta Dhankar- (PW1), wherein she acknowledged having mentioned the age of the prosecutrix VW- PW6 as 15 years, on the basis of the statement made by the prosecutrix to her. Dr. Kanta Dhankar-PW1 had also acknowledged, that she had not got the ossification test conducted on the prosecutrix VW- PW6 to scientifically determine the age of the prosecutrix. Based on the aforesaid, it was averred that there was no concrete material on the record of the case, on the basis of which it could have been concluded by the High Court, that the prosecutrix was a minor on the date of occurrence.” 10 16. In the present case, the radiological age of the victim is corroborated by her birth certificate, in which the date of birth is recorded as 23.02.2002 and on the date of incident i.e. on 27.01.2016, the age of the victim comes about 14 years. Therefore, there is a corroborative evidence available in the case that the victim is aged about 14 years. Although, the victim/PW-1, her mother/PW-2 and her father/PW-3 could not disclose any exact date of her birth, but from the ossification report (exhibit P-16) as well as her birth certificate, which has been seized vide seizure memo (exhibit P-10), the prosecution could able to prove that the victim was minor on the date of incident and less than 16 years of age. 17. So far as the offence of wrongfully restrained and the commission of rape are concerned, I again examined the evidence of the victim. 18. The victim/PW-1 has stated in her evidence that on 27.01.2016, at about 4:00 PM, when she had gone to purchase snacks to the shop of the appellant, he gagged her mouth and took her inside his house and committed rape upon her. He also threatened her not to disclose the incident to anyone, otherwise he would kill her. He given a packet of toast (snacks) and Rs. 100/- cash. On 29.01.2016, when her parents came from the hospital after treatment of her father, she disclosed the incident to the police and then on the next day a village meeting was convened and she disclosed the incident in the village meeting and thereafter she lodged the report. In cross-examination, she remained firm in saying that on the date of incident the appellant has committed rape upon her, when 11 she had gone to his shop. Nothing could be elicited in the cross- examination of this witness so that her evidence could be disbelieved. 19. The evidence of the victim/PW-1 is supported by PW-12/Dr. Sarita Kumeti, who stated in her evidence that on 31.01.2016, the victim was brought before her for her medical examination. After her medical examination, she found her labia majora and labia minora under developing stage, hymen pinkish-red in colour and hymen ruptured (multiple place ruptured), tag of hymen present (soft and pinkish-red in colour) and opined that according to the above finding, intercourse had been done. Further report given after FSL. Two slides of her vaginal swab were prepared, sealed and handed over to police for its chemical examination. The vaginal slide of the victim, her underwear and skirt were sent for its chemical examination to Regional FSL, Jagdalpur from where report (exhibit P-38) was received and according to the FSL report, sperm were found on the vaginal slide of the victim and sperm and semen were found on the underwear of the victim, which further corroborates the allegation that the victim was subjected to rape by the appellant. 20. PW-2 is the mother of the victim has stated in her evidence that when they returned back from the hospital, the victim had informed that she was subjected to rape by the appellant and thereafter a meeting was convened in the village, but the appellant fled away from the village and then they lodged the report. This witness has also stuck in 12 making allegation against the appellant that he committed rape upon her daughter. 21. PW-3 is the father of the victim has also supported the allegation made by the victim against the appellant that she was subjected to rape by him and when he returned back from hospital, his daughter has disclosed about the incident. 22. PW-4, 5, 6, 7 & 8 are the witnesses of village meeting and duly supported the prosecution's case that the village meeting was convened, in which the victim has disclosed about the incident. 23. PW-9 is the witness, who seen the appellant taking the victim inside his house and saw that the victim was scared inside the house of the appellant. This witness has also remained firm in his cross- examination that he saw the victim inside the house of the appellant and she was very scared at that time. From all these evidences and also from the evidence of the police witnesses, the prosecution has duly proved the guilt of the appellant that on the date of incident, he took the victim inside his house when she had gone to purchase some snacks in the shop of the appellant and committed rape upon here, thereby, this Court is concurred with the finding recorded by the learned trial Court about holding the appellant guilty for the offence under sections 342 and 506 part-II as well as 376(2)(i) of the IPC. I do not find any ground to interfere with the said finding recorded by the learned trial Court and thereby affirm the conviction of the appellant for the aforesaid offences. 13 24. In the result, the appeal filed by the appellant is dismissed. The appellant shall undergo the entire sentence as awarded by the learned trial Court. The appellant is reported to be in jail since 06.06.2017. He is entitled for the set off of his undergone period during the trial as well as during the pendency of the present appeal. 25. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 26. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved