1 2025:CGHC:4176-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1352 of 2021 Yadram Yadav S/o Tularam Yadav Aged About 22 Years Resident of Patharimuda, Police Station-Bagbahra, District- Mahasamund, Chhattisgarh ... Appellant versus State of Chhattisgarh Through the Station House OfÏcer, Police Station- Bagbahra, District- Mahasamund, Chhattisgarh. ... Respondent For Appellant : Mr. Rajeev Kumar Dubey, Amicus Curiae For Respondent : Mr. Sakib Ahmed, Panel Lawyer Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 23/01/2025 1. The appellant has filed this appeal under Section 374(2) of the Criminal Procedure Code, 1973 (for short, the Cr.P.C.)questioning the impugned judgment of conviction and order of sentence dated 02.09.2021 passed by the learned Special Judge (POCSO Act, 2012) Mahasamund, District Mahasamund, in Special Criminal Case No. H-28/2020 whereby the appellant has been convicted and sentenced as under: 2 Conviction under Section Jail Sentence (Rigorous) Fine Default Sentence 363 of the Indian Pe- nal Code (for short, the IPC) 5 years Rs. 1,000/- 1 month 366 of the IPC 7 years Rs. 2,000/- 2 months 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act) 20 years Rs. 10,000/- 6 months 2. None appears on behalf of the appellant despite repeated calls. 3. Today, the matter is listed for hearing on IA No. 1 of 2021 which is an application for suspension of sentence and grant of bail to the appellant. However, since none appeared on behalf of the appellant, this Court appoints Mr. Rajeev Kumar Dubey, learned counsel present in the Court as Amicus Curaie to assist the Court in the matter and with the consent of learned Amicus Curiae as well as Mr. Sakib Ahmed, learned Panel Lawyer, this Court proceeded to hear the matter finally at this stage itself. 4. The appellant is alleged to have committed an offence punishable under Sections 363, 366, 376(2)(n) of the IPC read with Section 6 of the POCSO Act, in a village falling under the Patharimuda Police Station, Bagbahara District Mahasamund against the victim who was aged 16 years 11 months by abducting her from the custody of her legal guardian with an intent to compel her to marry against her will or to coerce/seduce her to have illicit sexual intercourse and the appellant committed aggravated penetrative sexual assault on the victim by raping her more than once between 15.03.2020 and 29.06.2020. The victim’s mother lodged a report (Exhibit P/3) at Bagbahara Police Station on 20.03.2020, 3 stating that she had gone to her niece's wedding in Mahasamund on 13.03.2020. On 15.03.2020, her son informed her that the victim was missing. She returned to her village, Patharimuda, and searched for the victim at her relatives' homes but couldn't find her. She suspected that an unknown person had lured and kidnapped the victim. A First Information Report (FIR) was registered at Bagbahara Police Station for the offence punishable under Section 363 of the IPC. During the investigation, the victim was recovered from the appellant’s custody on 29.06.2020. During the course of investigation, the victim stated stated that she had a love affair with the appellant who had lured her with promises of marriage and had physical relations with her multiple times. Based on the victim’s statement, additional Sections were added to the case, including Section 366, 376(2)(n), and Section 6 of the POCSO Act. The victim and her mother consented to a medical examination, which was conducted, and evidence was collected. The appellant was arrested, and a medical examination was also conducted on him. A spot map of the incident was prepared, and the seized evidences were sent to the forensic laboratory for examination. After completion of the investigation, a charge sheet was filed before the Court concerned. The learned trial Court framed charges against the appellant under the relevant Sections of the IPC and the POCSO Act, which were read out and explained to him. The appellant denied the charges and prayed for trial. 5. In order to bring home the offence, prosecution examined as many as 11 witnesses, namely, the victim (PW-1), Rewati Patel (PW-2), Poonam Thakur (PW-3), Dr. L.N.Dhanker (PW-4), Bisali Ram Dhruw (PW-5), Swaraj Tripathi (PW-6), Rupesh Kumar Sinha (PW-7), Mukesh Kumar Behra (PW-8), Nohri Dhruw (PW-9), Narayan Patel (PW-10) and Dr. Seema Binkar (PW-11) and exhibited as many as 27 exhibits. 4 6. The statement of the convict/appellant was recorded under section 313 CrPC wherein he has expressed his ignorance about most of the questions, however, some of them were denied as well. He stated that he was innocent and was falsely implicated. In defence, the appellant got the statement of Rewati Bai Patel, exhibited as Exhibit D/1. 7. The learned trial Court, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellant/ accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict. 8. Mr. Rajeev Kumar Dubey, learned Amicus Curiae submits that the appellant has been falsely implicated in this case. It is not a case of abduction but a case of elopement as the victim and the appellant had love affair. The prosecution has failed to prove that the victim was a minor on the date of incident. The person who had made entries in the Dakhil Kharij Register has not been examined by the prosecution. There are omissions and contradictions in the statement of the prosecution witnesses and the conviction is based on conjecture and surmises. Even the parents of the victim are unaware of the actual date of birth of the victim. The victim, in her deposition before the learned trial Court herself has admitted that she was having love affair with the appellant and they used to meet often and that she alongwith the appellant were living as husband and wife. Hence, the appellant deserves to be acquitted of the charges. 9. On the other hand, learned Panel Lawyer appearing for the State/respondent submits that the learned trial Court was fully justified in convicting and sentencing the convict/appellant as mentioned in the opening paragraph. There is ample evidence on record to hold the 5 appellant guilty of the offence. The order passed by the learned trial Court needs no interference and the appeal filed by the convict/appellant be dismissed. 10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 11. The appellant/convict is alleged to have raped the victim multiple times on the pretext of marriage. According to the prosecution, the victim was aged about 16 years, 11 months on the date of incident. 12. The victim (PW-1) in her deposition has stated that her date of birth was 01.01.2004 and was aged about 17 years. Though she has deposed that the appellant lured her that he would marry her and both of them went to Mahasamund and from Mahasamund to Raipur on a bus. Both of them used to live in a room which was provided by the Company wherethe appellant was working at Raipur. They lived there for about 4 months and during that period, the appellant made physical relationship for a number of times. When they received phone call from Bagbahara Police Station, they returned back to the village from where they were taken to Bagbahara Police Station and the recovery panchnama (Exhibit P/1) was prepared. She further stated that she was acquainted with the appellant for the last two years and she was having love affair with him. At paragraph 6 of her deposition, she has stated that they were living as husband and wife at Raipur and further that she had consented for the physical relationship and the physical relationship was not forceful. She had gone with the appellant on her own and was not abducted and that she also did not wanted to make any complaint against the appellant. She further states that according to the School register, her date of birth 6 was 25.04.2004 and in the Aadhar card, her date of birth was 01.01.2004 but both of them were wrong. At paragraph 11 of her deposition, she has stated that while she was residing with the appellant at Raipur as her wife, she never informed any person residing there that she had eloped with the appellant and when she was being asked by someone, she used to tell that she had married with the appellant. 13. The mother of the victim (PW-2) had deposed that she was an illiterate and could not tell the exact date of birth of the victim. She admitted that in the Police Station, the victim had informed her mother that she was having love affair with the appellant. She further stated that on what basis the date of birth was recorded in the Aadhar Card and certificates of the school, she was not aware and that the date of birth mentioned in the Aadhar Card was incorrect. Poonam Thakur (PW-3) is the Incharge Head Mistress. She stated that no documents were provided by the guardians of the victim while getting the victim admitted in the school. However, the date of birth recorded in the Dakhil Kharij register was 25.04.2004. The victim was not admitted by her own parents but was admitted by her Badi Maa. She further states that the entries in the register were made by Assistant Teacher, Shobha Dewangan and not by her. 14. Dr. L.N.Dhanker is the Medical OfÏcer who had examined the appellant and on examination, he found that his secondary sexual character were well developed and he was capable of performing sexual intercourse, vide his report (Exhibit P/14). Dr. Seema Binkar is theMedical OfÏcer who had examined the victim (PW-1) and on examination, she found her to be of an average built. She was physically and mentally fit. Her secondary sexual character were well developed, pubic hair was present and there 7 was no kind of any injuries, either internal or external present. However, her hymen was found to be old torn. She had prepared two slides from her vaginal smear and handed over to the lady constable for chemical examination. She had advised for Radiological test in order to ascertain the age of the victim. 15. The FSL report (Exhibit P/25) is negative in the present case as in the seized undergarments of the victim as well as the appellant and the slides, neither semen stains or human sperms have been found. 16. From the deposition of the victim (PW-1) herself, it is amply clear that it is not a case of abduction but a case of elopement as the appellant and the victim had love affair. They resided for about 4 months at Raipur as husband and wife and it is also admitted by the victim that the physical relationship between them was consensual and not forceful. The question remains that whether the prosecution has been successful in proving that the victim was a minor on the date of incident. 17. From the deposition of the mother of the victim, it is evident that she was not aware of the actual date of birth and the date of birth recorded in the Dakhil Kharij register is a mere guesswork. Even the author of the entries made the Dakhil Kharij register has not been examined by the prosecution. The Doctor who had examined the victim had advised for Radiological test which has not been done in the instant case. As such, it can safely be held that the prosecution has failed to prove beyond reasonable doubt that the victim was a minor on the date of incident. 18. In Jarnail Singh v. State of Haryana {(2013) 7 SCC 263}, the Supreme Court, at paragraph 23 has observed as under: 8 “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 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.” 9 19. In Alamelu & Another v. State, represented by Inspector of Police {(2011) 2 SCC 385}, where the facts and circumstances were similar to that of this case, the Supreme Court observed as under: “51. This Court in Rameshwar v. State of Rajasthan {AIR 1952 SC 54} declared that corroboration is not the sine qua non for a conviction in a rape case. In the aforesaid case, Vivian Bose, J. speaking for the Court observed as follows:- "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, ... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand." 52. The aforesaid proposition of law has been reiterated by this Court in numerous judgments subsequently. These observations leave no manner of doubt that a conviction can be recorded on the sole, uncorroborated testimony of a victim provided it does not suffer from any basic infirmities or improbabilities which render it unworthy of credence. xxx xxx xxx 54. Even PW5, Thiru Thirunavukarasu stated that Sekar (A1) had brought the girl with him to his house and told him that he had married her. They had come to see Trichy and requested a house to stay. This witness categorically stated that he thought that they were newly married couple. He had made them stay in Door No. 86 of the Police Colony, which was under his responsibility. On 10th August, 1993, the police inspector, who arrived there at 10.00 p.m. told this witness that Sekar (A1) had married the girl by threatening her and "spoiled her". The girl, according to the prosecution, was recovered from the aforesaid premises. Therefore, for six days, this girl was staying with Sekar (A1). She 10 did not raise any protest. She did not even complain to this witness or any other residents in the locality. Her behavior of not complaining to anybody at any of the stages after being allegedly abducted would be wholly unnatural. 55. Earlier also, she had many opportunities to complain or to run away, but she made no such effort. It is noteworthy that she made no protest on seeing some known persons near the car, after her alleged abduction. She did not make any complaint at the residence of Selvi, sister of Sekar (A1) at Pudupatti. Again, there was no complaint on seeing her relatives allegedly assembled at the temple. Her relatives apparently took no steps at the time when mangalsutra was forcibly tied around her neck by Sekar (A1). No one sent for police help even though a car was available. She made no complaint when she was taken to the house of PW5, Thiru Thirunavukarasu and stayed at his place. Again, there was no protest when Sekar (A1) took her to the police station on 5th day of the alleged abduction and told at the Tiruchi Police Station that they had already been married. The above behaviour would not be natural for a girl who had been compelled to marry and subjected to illicit sexual intercourse. 56. In view of the aforesaid, we are of the considered opinion that the prosecution has failed to prove beyond reasonable doubt any of the offences with which the appellants had been charged. It appears that the entire prosecution story has been concocted for reasons best known to the prosecution.” 20. In view of the above discussion, and in light of the ratio laid down by the Hon’ble Apex Court in the cases (supra), this Court is of the considered opinion that the prosecution has failed to establish its case beyond reasonable doubt and the judgment passed by the learned trial Court needs interference and as such, the judgment of conviction and order of sentence dated 02.09.2021 is hereby set aside and the appellant/convict is acquitted of the charges. 21. Resultantly, this appeal stands allowed. 11 22. The appellant/convict is reported to be in jail. He is directed to be released forthwith unless wanted in any other case. However, keeping in view the provision of Section 437-A of the Cr.P.C. {Section 481 of the BNSS}, the accused-appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- with two sureties 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 Supreme Court. 23. Registry is directed to transmit the trial court record along with a copy of this order to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.01.29 19:25:25 +0530