1 2025:CGHC:7842 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 108 of 2020 Dilip Ram S/o Pande Ram Bhagat Aged About 28 Years R/o Jashpur (Village Of Prosecutrix), Police Station Jashpur, District Jashpur Chhattisgarh., District : Jashpur, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Jashpur Chhattisgarh., District : Jashpur, Chhattisgarh ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Rajeev Kumar Dubey, Advocate For Respondent/State : Mr. Atanu Ghosh, Deputy G.A. Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 13/02/2025 1. The present criminal appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 23.12.2019, passed by learned Special Judge (Protection of Children from Sexual Offences VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.05.01 19:02:55 +0530 2 Act, 2012), Jashpur, District Jashpur, in Special Criminal Case (under the POCSO Act) No. 2 of 2019, whereby the appellant has been convicted for the offence under Sections 376(2)(n) of IPC and Section 6 of POCSO Act and considering the provisions of Section 42 of the POCSO Act, the sentence of R.I. for 10 years with of fine Rs. 1000/- in default of payment of fine further R.I. for 03 months has been awarded only for the offence under Section 376(2)(n) of IPC. 2. The brief facts of the case are that on 26.04.2018, the victim (PW-2), has made a written complaint (exhibit P-12) to the Collector, Jashpur against the appellant alleging in it that he kept her for about 02 years and after birth of her child, he thrown her out from his house and when she had gone to his house, he and his brothers threatened her and therefore an appropriate action may be taken against him. On the basis of the written complaint, the unnumbered FIR (exhibit P-13) was registered at Police Outpost Manora, District Jashpur for the offence under Section 376 of IPC and Sections 4 and 6 of POCSO Act. The FIR was transferred to jurisdictional police station at Jashpur at numbered FIR (exhibit P-27) was registered for the offence under Section 376 of IPC and Sections 4 and 6 of POCSO Act. The victim was sent for her medical examination to Community Health Centre, Manora, where she was medically examined by PW- 1/Dr. Smt. P. Kerketta, who after her examination gave report exhibit P-1 and P-2. While medically examining the victim, no sign of external injuries were found and on internal examination, no sign of 3 recent delivery present, but there is history of delivery in District Hospital, Jashpur and opined that sign of delivery present. 3. Spot map (exhibit P-16) was prepared by the police and exhibit P-28 was prepared by the Patwari. With respect to the date of birth of the victim, the birth registration register was seized vide seizure memo (exhibit P-22) from the Collectorate, Raipur and after retaining attested true copy of the said register (exhibit P-21), the original register was returned back to Collectorate. The appellant was arrested on 09.12.2018 and he too was sent for his medical examination to Community Health Centre, Manora, where he was medically examined by PW-5/Dr. Kishore Chouhan, who after his examination gave report (exhibit P-10 and P-11). After medical examination, the doctor has opined that the accused is capable of performing sexual intercourse. The blood sample of the victim, her son and the appellant were collected vide memos from exhibit P-4 to P-9. The blood samples of the victim, her son and the appellant were sent for DNA test report to State FSL, DNA Unit, Raipur, from where DNA report (exhibit P-25) was received and it was opined that the appellant is biological father of the son of the victim. 4. Statement of the witnesses under Section 161 of CRPC have been recorded and statement of the victim under Section 164 of CRPC has also been recorded and after completion of usual investigation charge sheet was filed before the learned trial Court against the 4 appellant for the offence under Section 376 of IPC and Sections 4 and 6 of POCSO Act. 5. The learned trial Court has framed charge against the appellant for the offence under Section 376(2)(n) of IPC and Section 6 of POCSO Act. The appellant denied the charge and claimed trial. 6. In order to prove the charge against the appellant, the prosecution has examined as many as 12 witnesses. Statement of the appellant 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. 7. After appreciating the 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 judgment. Hence, this appeal. 8. 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. He would further submit that there is no injuries found on the body of the victim to support her allegation that she was subjected to sexual intercourse by the appellant. There is no legally admissible evidence with respect to the age and date of birth of the victim. He is a major girl having love affair with the appellant and 5 resided with him for a considerable period as his wife. She procured a child from him, but due to some domestic quarrel, she left his house and lodged a report against the appellant. The victim resided with the appellant for about 02 years without making any complaint to anyone about rape. There is no ingredients of rape in the allegation made by the victim and therefore, the appellant is entitled for acquittal. 9. On the other hand, learned counsel for the State opposes and has submitted that the prosecution has proved its case beyond reasonable doubt, but for minor omissions or contradictions, which are trivial in nature, the evidence of the prosecution witnesses are fully reliable and conviction can be made on the basis of the evidence led by the prosecution. The evidence of the victim is fully reliable, which need not any corroboration. He would further submit that even if no injuries have been found on the body of the victim, looking to the nature of the offence and the manner in which she was subjected to sexual intercourse by the appellant, injuries may not have been possible to receive by the victim. He would also submit that from the DNA report (exhibit P-25), it has been proved that the appellant is the biological father of the child born from the victim and from the birth registration register, the victim was found to be minor on the date of incident, therefore, the appellant is guilty for the offence under Section 376(2)(n) of IPC having committed rape with the minor girl. She being the minor girl subjected to rape by the appellant, for which the learned trial Court has rightly convicted and 6 sentenced him, which is absolutely justified and is not required to be interfered with. 10. I have heard learned counsel for the parties and perused the record. 11. 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 minor or not. The prosecution has relied upon the birth registration register (exhibit P-21), which is sought to be proved by PW-7/Assistant Sub- Inspector of Police, who seized the said register and PW-8, who is the Assistant Grade-II at Collectorate, Jashpur. PW-7 the Assistant Sub-Inspector of Police has stated in his evidence that he has not sent the victim for her ossification test. He has not seized the Kotwari register with respect to the date of birth of the victim. He voluntary stated that he has seized the copy of birth registration register (exhibit P-21). 12. PW-8, who is the Assistant Grade-II at Collectorate, Jashpur stated in his evidence that the police has asked to give the birth registration register with respect to the date of birth of the victim. He brought the original register with him and the attested true copy of the said birth registration register is exhibit P-21. According to the birth registration register, the date of birth of the victim is recorded as 02.08.1999. In cross-examination, he admitted that he himself is not the author of the birth registration register. The victim is the third number daughter of her mother, whose age was 30 years at that time. 7 13. PW-2, the victim has stated in her evidence that she did not know her date of birth. 14. PW-3, father of the victim has stated in his evidence that presently her daughter has completed 18 years of age. At the time of her birth, he has got registered her birth with the Kotwari register. In cross- examination, he stated that he could not tell the date of birth of his children. When his elder son was born, the age of his wife was 19-20 years and presently, she is aged about 30-35 years. He also admitted that there was an age gap of one and half year of his children. He did not know as to what date he disclosed in Kotwari register. 15. PW-6, the mother of the victim has also not disclosed any date of birth of the victim. In cross-examination, she stated that she did not know the date of birth of her daughter. 16. Except the aforesaid evidence with respect to age of the victim, no other evidence has been produced by the prosecution to per her age that she was minor on the date of incident. The birth registration register though seized from the Collectorate, but the contents of the said register have to be proved by clinching evidence as to whether the entries made in it are correct or not. It has also not been proved that on whose instance the entries have been made in the said birth registration register. PW-8 is not the author of the said register. From the evidence of the victim/PW-2, her father/PW-3 and her 8 mother/PW-6, no any date of birth or age disclosed that the victim was minor on the date of incident. 17. The learned trial Court has determined the age of the victim that she was minor on the date of incident, because in the FIR, the victim stated that the appellant kept her since 02 years back and on the date of lodging of the report, she was having 07 months old child and the date of birth the child was 22.03.2018. From the cumulative comparison of the date of birth of the victim recorded in the birth registration register i.e. 02.08.1999, the date of birth of her son i.e. 22.03.2018, at the time when she suffered the offence of rape, she was less than 18 years. In absence of any clinching evidence, it is very difficult for this Court to conclude only on the basis of some apprehensive mathematical calculation, the age of the victim can be determined. There is no sufficient evidence to prove the age or date of birth of the victim. Even her parents are not able to disclose any date of her birth, therefore, this Court is not in agreement with the findings recorded by the learned trial Court that the victim was minor on the date of incident. 18. So far as the offence of rape is concerned, I again examined the evidence of the prosecution witnesses. The victim/PW-2 has stated in her evidence that the appellant kept her and they were resided together. By the physical relation with the appellant, she conceived pregnancy and when she disclosed her pregnancy to her parents, a village meeting was convened, where the appellant refused to keep 9 her with him. Thereafter, she made a police complaint, but no action as taken against him, thereafter she made a complaint to the Collector. In cross-examination, she admitted that there was love affair between her and the appellant and by which she conceived pregnancy and delivered a male child in the month of December 2018. She admitted that if the appellant and his parents would keep her in good condition, she would not have lodged any report against him. She admitted that a compromise was taken place with the appellant before the Tahsildar Court. She further admitted that at the time when she lodged a complaint to the Collector, the appellant was at Ambikapur in his work and since he is not coming from his work to the village, she made a complaint to the Collector. 19. From the evidence of the victim, it nowhere comes that the appellant at any time has used force or committed forceful sexual intercourse with the victim. The victim herself stated that she was in love affair with the appellant and she was resided with him and engaged in physical relation, by which she conceived pregnancy and ultimately delivered a male child. From her evidence, the ingredients of rape is completely missing as she was in consensual physical relation with the appellant. 20. PW-3, father of the victim has stated in his evidence that about 02 years back, the appellant kidnapped his daughter and the villagers have caught them hold at jungle. A village meeting was convened and the parents of the appellant left him. At the time of village 10 meeting his daughter was pregnant. After the police report, the parents of the appellant kept the victim with them for few days and thereafter they left her to his house. Subsequently, with the intervention of police, the appellant took her with him and again left her. In cross-examination, he shown his ignorance as to whether the appellant had gone to Ambikapur to earn his livelihood or not. He voluntarily stated that the appellant was not kept her with him and therefore the report has been lodged. 21. PW-6, mother of the victim has also stated that about 02 years back, the appellant kidnapped her daughter and kept her in another house with him. She delivered a male child from the appellant and thereafter he left her. She admitted in her cross-examination that when the abdomen of the victim appears to be bigger than the normal size, she asked her and then the victim disclosed about her pregnancy and love affair with the appellant. She also admitted that when the appellant had gone to earn his livelihood, he left the victim in his house, but his parents had not accepted her and therefore, she started residing with them. She also admitted that if the appellant kept her daughter with him, they would not have lodged report against him. 22. From the aforesaid evidence, when the victim resided with the appellant, she delivered a child from him and there is no allegation that the appellant committed forceful sexual intercourse, particularly when the prosecution is not able to prove that she was minor on the 11 date of incident, no offence of rape is proved in the case by leading cogent and clinching evidence by the prosecution. 23. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 24. From the aforesaid consideration, this Court is of the opinion that the impugned judgment of conviction and sentence passed by the learned trial Court requires interference as there is no sufficient evidence against the appellant for his conviction under Section 376(2)(n) of IPC or Section 6 of POCSO Act. 12 25. In the result, the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellant is acquitted from all the offences. 26. The appellant is reported to be in jail since 09.12.2018, he be released forthwith, if not required in any other case. 27. 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