1 2025:CGHC:2610 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 447 of 2021 1 - Pramod @ Pratap Rajput S/o Durga Singh Rajput Aged About 22 Years R/o Station Baakal , Police Station Lalbagh, District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh ... Appellant versus 1 - State Of Chhattisgarh Through Police Station Lalbagh, District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh ... Respondent(s) For Appellant : Shri Vipin Singh Thakur, Advocate For Respondent/State : Ms.Monika Thakur, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 15/01/2025 The appellant has preferred this appeal under Section 374(2) of Cr.P.C questioning the impugned judgment dated 12.03.2021 passed in Special Case No. 06/2019 by the learned Special Judge, SC/ST (Prevention of Atrocities) Act, Rajnandgaon by which the learned special 2 Judge has convicted and sentenced the accused/appellant as under: Conviction Sentence Under Section 450 IPC RI for 5 years and fine of Rs. 1,000/-, in default of payment of fine to further undergo RI for two months Under Section 342 IPC RI for 01 year Under Section 376(2)(g) IPC RI for 10 years and fine of Rs. 1,000/- in default of payment of fine to further undergo RI for two months. 2. Prosecution case in brief is that on 05.02.2019, report was lodged by the mother of the prosecutrix alleging that when she, her husband and son had gone to work at about 5.30 pm and younger brother of the prosecutrix had gone outside to play and the prosecutrix was alone in the house, appellant entered the house, locked the door, pressed her breast and after threatening and abusing her in the name of caste, subjected her to rape. Thereafter, she unlocked the door and ran towards the house of her neighbour Madhu and thereafter informed her father in mobile about the incident and report was lodged at police station vide Ex.P-1. On the basis of the written report, Spot Map (Ex.P- 7) was prepared. After taking consent (Ex.P-2) from the father of the prosecutrix, she was sent for medical examination vide Ex.P-13. The school admission and discharge register Ex.P-9 was seized and the caste certificate of the prosecutrix was seized vide Ex.P-4 and the caste certificate was marked as Article A, Date of Birth certificate is marked as Article B and school admission and discharge register ha been marked as Article C. The appellant was arrested and he was medically examined vide Ex.P-17. Statements of the witnesses were recorded 3 and after completion of investigation, the charge sheet for the offence under Sections 450, 294,342,376(2)/376 (3) IPC; 3(1)(n) (/k) and 3(2)(v) and 4 of the Protection of Children from Sexual Offences Act was filed before the learned Special Judge, SC/ST (Prevention of Atrocities) Act, Rajnandgaon. The appellant abjured his guilt and claimed for trial. 3. In order to establish the charge against the appellant, the prosecution has examined as many as 11 witnesses. Statement under Section 313 of the Cr.P.C. of the appellant had been recorded in which he denied the material appearing against him and pleaded his innocence and false implication in the case. 5. After appreciation of the oral as well as documentary evidence available on record, the learned trial Court has convicted the appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 6. Learned counsel for the appellant would argue that the appellant is innocent and has been falsely implicated in the case. The prosecution has failed to prove its case beyond reasonable doubt. There is no iota of evidence against the appellant and the age of the prosecutrix has not been established. He would further submit that the family members of the prosecutrix had assaulted the appellant and he was admitted in the hospital which is supported by the medical evidence. He submits that that the explanation made in his 313 Cr.P.C. had not been considered by the trial court. It is submitted that the medical report of the prosecutrix does not support the version of the injuries. He further argued that the learned trial Court did not appreciate the evidence on 4 record in the right perspective and unduly attached too much importance to the statement of the prosecutrix. 7. On the other hand, learned State counsel supports the impugned judgment and submits that the conviction and sentence awarded by the learned Special Judge do not warrant any interference by this Court. 8. Having heard learned counsel for the parties and considering the points urged and the grounds made out, the following points would arise for consideration : (i) Whether the prosecution has established that the victim girl is a minor and the appellant - accused has committed the offence under Section 376(2)(J) of the IPC? (ii) Whether the Trial Court has erred in convicting the appellant - accused for the offence under Sections 342 and 450 of IPC? 9. Prosecutrix (PW-1) has stated that on the date of incident, when her parents and brother had gone to workplace and her younger brother had gone to play and she was all alone, the appellant entered the house, locked the door and when she asked him as to why he came he replied that he is love with her and want to marry her. Thereafter he forcibly committed physical relation with her and gave her threat as also abused her. She ran away after unlocking the door and the appellant also followed her and threatened her that if she disclose about the incident to her parents, she will kill her. When she was going on her bicycle he pushed the bicycle and she fell down. She informed bout the incident to Neelesh uncle and had also informed to Lata and Madhu. Thereafter she went along with her father to lodge a report (Ex.P-1) at 5 police station. She was medically examined by the doctor after taking consent of his father. The police had seized the caste certificate vide Ex.P-3 and the birth certificate vide Ex.P-4. Her statement was recorded by the police Ex.P-5. 10. Pemin Kosare (PW-2) mother of the prosecutrix has stated that prosecutrix had pursued her studies up to class 7 and on the date of incident, she along with her husband went to Abis Factory and in the evening at about 6.30 pm when they came home, her daughter narrated about the incident that the appellant had forcefully committed physical relation with her and had also hurled abuses. Immediately thereafter she narrated this incident to Lata, Madhu and Nilesh. The report was lodged at police station and thereafter she was medically examined at District Hospital after taking consent vide Ex.P-6. Spot map was prepared vide Ex.P-7 and the police seized the caste certificate vide Ex.P-3. The prosecutrix was taken to Child Welfare Committee and her statement was recorded vide Ex.P-8. Lata Lehre (PW-3) has stated that on the date of incident, she was fetching water from the boring and saw that the appellant was chasing her and hurling abuses. She has also stated that the appellant was giving threats to kill her. She has stated that the prosecutrix informed her that the appellant had subjected her to rape and she informed her father about the incident from her mobile. 11. Bhunehwar Sen (PW-4) is the Headmaster (In charge) of Government Primary School, Bankal, PS Laal Bagh, District Rajpnandgaon. He has stated that the police has seized the school admission and discharge register vide Ex.P-11 where the date of birth of the prosecutrix is mentioned as 18.02.2005. He ha stated that he is not 6 the author of the entry of date of birth in school admission and discharge register. Neelesh Kumar Kothariya (PW-5) has stated that on the date of incident, at about 6.00 pm, the prosecutrix came to him and asked him to make a call to her father and that the appellant is abusing and forcefully committed physical relation with her. Madhu (PW-6) has stated that on the date of incident, prosecutrix came to her house weeping and narrated about the incident and had asked her mobile to inform about the incident to her father. She has also stated that the appellant was hurling abuses and the prosecutrix informed her that he was abusing in the name of her caste and had done bad work with her. 12. Dr. Sohadra Thakur (PW-8) Medical Officer at Government Medical College Hospital, Rajnandgaon, District Rajnandgaon who had examined the prosecutrix and gave her report Ex.P-14. She has opined that there was no sign of recent forceful sexual intercourse and no definite opinion could be given until receiving of chemical examination report. She has referred to radiologist for age determination. PW-9 Dr. Rajesh Patel is the radiologist who had examined and opined that age of the prosecutrix is 14-15 years. PW-10 Dr. Nitin Barmate has medically examined the appellant and opined that the appellant is capable of performing sexual intercourse. 13. The first contention of the counsel for the appellant is that the age of the victim has not been proved as per law. After going through the records, the deposition of the witnesses, statement of the headmaster, the school admission and discharge register as well as the report of the Radiologist who has opined that the 7 age of the prosecutrix was 14-15 years. However, author of the school admission register has not been examined. 14. Determination of the age of the prosecutrix under the Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as the “POCSO”) has been considered by the Supreme Court in Mahadeo Vs. State of Maharashtra and Anr – (2013) 14 SCC 637 wherein, the Supreme Court has laid down that : “the date given in the matriculation or equivalent certificate must first of all be considered for the purpose of determining the age of the prosecutrix on the date of offence and, if that is not available, other means of determining the age of prosecutrix must be resorted to. While laying down this proposition, the Supreme Court took inspiration from rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (referred hereinafter as “Rules of 2007”). The said rule provided various means of assessing the age of a juvenile in conflict with law. The Supreme Court applied the same parameters for determining the age of a prosecutrix under the POCSO. Under rule 12(3) of the Rules of 2007, the age determination inquiry shall obtain evidence relating to the age of the juvenile firstly, from the matriculation or equivalent certificates if available [r. 12(3)(a)(i)] and in its absence, the date of birth certificate from the school first attended (other than a play school) [r. 12(3)(a)(ii)], and in its absence, the birth certificate given by a municipality, corporation or a panchayat [r. 12(3)(a)(iii)]. Thereafter, the Supreme Court refers to rule 12(3)(b) and opines that it is only in the absence of any of the means provided in rr. 12(3)(a) (i) to (iii), that medical opinion could be sought to determine the age of the juvenile. Thereafter, the Supreme Court applies the same standard to determine the age of the prosecutrix under POCSO. 15. The question before this Court is whether the judgment of the Supreme Court in Mahadeo supra 8 binds all inferior Courts to accept the date of birth of the prosecutrix as entered in the school register as an indelible fact, prohibiting any enquiry into the reliability of such an entry? In Haryana Financial Corporation and anr., Vs.Jagdamba Oil Mills and Anr – (2002) 3 SCC 496, the Supreme Court held in paragraph 19 that judgements are not to be interpreted as statutes and the observations of the Courts are not to be assigned the mathematical rigidness of a Euclid’s theorem. The observations of the Court are to be understood in the backdrop of the facts in which the judgment was passed.” 15. A plain reading of the judgment in Mahadeo (supra) reveals that the Supreme Court had to borrow the means of determining the age of the prosecutrix from the provisions of r.12(3) (i) to (iii) of the Rules 8 of 2007, on account of the absence of an analogous provision in the POCSO. However, the Supreme Court never intended its opinion to forbid an enquiry by the Courts into the reliability of the date of birth of the prosecutrix, as entered in the school register. Such a view is further sustainable in the light of stringent and draconian provisions in the POCSO which require that the enquiry by the Court to ascertain the guilt of an accused under the provisions of the POCSO should be detailed and intense to ensure that there is no miscarriage of justice by convicting an innocent or acquitting the guilty. The judgment does not require that the Courts consider the date of birth of the prosecutrix entered in the school register as gospel truth.” 16. It is undisputed that the author of the school admission and discharge register has not been examined. There are two sources of information relating to the date of birth of the student entered in the school register. First source of information is the birth certificate of the child issued by the Municipality, Corporation, or the Panchayat or any 9 such other local authority/body, which itself is based upon the certificate given by the hospital where the child was born. The second source of information is the date of birth of the child as given by the parent/guardian. Where the source of information relating to the date of birth of the child/prosecutrix is the statement of the parent/guardian, the Court must satisfy itself that such parent/guardian has affirmatively stated so in his or her testimony. 17. The Supreme Court in the matter of State of Himachal Pradesh Vs. Sanjay Kumar @ Sunny (2017) 2 SCC 1: (AIR 2017 SC 463) has held that:- "It is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. 18. As regards the appreciation of a minor victim's testimony, it has been held thus:- "By no means, it is suggested that whenever such 10 charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which testimony of the prosecutrix is to be examined and analyzed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one has to take stock of the realities of life as well." The settled proposition of law is that even statement of victim in a case of rape has to be critically appreciated with utmost sensitivity keeping in view the broader probability of the incident. It is understood when a self respected woman like the victim would come forward in a Court to make a humiliating statement against her honour such as is involved in the commission of rape on her it is beyond of imagination that parents of the victim would manufacture a false case at the cast of assassinating the character of their own daughter though victim was a minor girl but in any rate she is woman with all attributes showing modest to her.” 19. Another contention of the appellant is that the prosecutrix was a consenting party. In the present case, where the prosecutrix is minor, then consent is immaterial. Since the consent of a girl below the age of 16 years is immaterial, the same cannot be treated as a mitigating circumstance so as to award a sentence lesser than 7 years rigorous imprisonment. The first thing which is to be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause 6 of Section 375 IPC would get attracted making her consent for sexual intercourse as immaterial and inconsequential. It reads as follows: "375. Rape.--A man is said to commit„ rape‟ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the 11 six following descriptions-- *** Sixthly.--With or without her consent, when she is under sixteen years of age. Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." 20. The legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so- called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance. 21. Once if the things are put in right perspective in the manner stated above, we have to treat it as a case where the appellant has committed rape of a minor girl which is regarded as a heinous crime. Such an act 12 of sexual assault has to be abhorred. If the consent of minor is treated as a mitigating circumstance, it may lead to disastrous consequences. This view gets strengthened when it is kept in mind the letter and spirit behind the Protection of Children from Sexual Offences Act, 2012." 22. In view of the grounds urged above, it would be helpful to refer the law elucidated by the Hon'ble Supreme Court as regards the appreciation of evidence of the victim as well as minor victim, in cases where the accused is charged with the offence of rape/penetrative sexual assault. 23. In view of the above observation and for the reasons stated above, the fact that the neighbours had seen the prosecutrix running and the appellant was following her and hurling abuses in the name of her case and giving threat to kill her hence, I find no fault or irregularity in the order of Addl. Sessions Judge and I am not inclined to interfere with the impugned judgment of conviction and order of sentence dated 12.03.2021. The appeal lacks merit and is accordingly dismissed. The conviction of the appellant under Sections 450, 342 and 376 (g) IPC are hereby maintained. Being already inside the jail, no order in respect of arrest etc. of the accused/appellant is required. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.23 12:20:06 +0530