1 2025:CGHC:10152 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 412 of 2019 1 - Naresh Dhru S/o Ramadhin Dhruw Aged About 23 Years R/o Village Sevaiyakala, Police Station Pithora, District Mahasmund Chhattisgarh, District : Mahasamund, Chhattisgarh ... appellant versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station Pithora, District Mahasmund Chhattisgarh, District : Mahasamund, Chhattisgarh ... Respondent(s) For appellant : Ms. Anjali Pradhan, Advocate For Respondent(s) : Ms. Isha Jajodia, P.L. Hon'ble Justice Mr. Ravindra Kumar Agrawal, J. Order on Board 28.02.2025 1. The matter has been listed on motion hearing for orders of PUD receipt from the trial Court with respect to the non appearance of the applicant before the learned trial Court and with the consent of the party, the matter has been heard finally. 2. 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 18/02/2016 passed by learned Addl. Sessions Judge 2 Fast Track Court/ Special Court (Protection of Children From Sexual Offence Act, 2012), Dist- Mahasamund (C.G.) in Special Criminal Case No. H- 50/2015 whereby the appellant has been convicted and sentenced as below:- S.No. Conviction Sentence 1. Under Section 363 of IPC R.I. for 04 years and fine of Rs. 500/- in default of fine additional R.I. for 01 month. 2. Under Section 366-A of IPC R.I. for 4 years and fine of Rs. 500/- in default of payment of fine additional R.I. for 01 month. 3. Under Section 04 of POCSO Act. R.I. for 07 years and fine of Rs. 1000/-, in default of payment of fine further R.I. for 02 months. (All the sentences shall run concurrently) 3. Brief facts of the case are that on 13/09/2015, the mother of the victim (PW/1) has lodged a missing report that her minor daughter is missing from 2 pm on 13.09.2015 and her whereabout could not be traced out. When she made a telephonic call to her, she informed that she eloped but has not disclosed as to with whom she eloped. She also disclosed that she is at Raipur bus stand. On the report made by the mother of the victim, the FIR (Ex-P/1) has been registered against unknown persons. During the investigation, the victim was recovered on 14/09/2015 from the possession of the applicant and recovery panchanama (Ex-P/7) was prepared in presence of the witnesses. The victim was sent for her medical examination to Community Health Centre, Pithora, where she was medically examined by PW-10 Dr. Tara Agrawal, who after her medical examination, gave report (Ex- P/17). While medical examination of the victim, no external injuries have been found on her body and opined that she is habitual of sexual intercourse. Two slides of her vaginal smear were prepared, sealed and handed over to the Police for its chemical examination. Spot map (Ex-P/2) was prepared by 3 the Police and (Ex-P/19) was prepared by the Patwari. The underwear of the victim was seized vide seizure memo (Ex-P/3). With respect to the age and date of birth of the victim, the Police has seized the Kotwari register of Village- Teka vide seizure memo (Ex-P/11). The appellant was arrested on 15/09/2015 and he too was medically examined by (PW/4) Dr. Aditya Kumar Sahu, who gave his report (Ex-P/13) and according to the medical report of the appellant, he was able to perform sexual intercourse. The vaginal slide of the victim and her underwear and underwear of the appellant were sent for its chemical examination to State FSL, Raipur, from where report (Ex-P/25) was received and according to the FSL report, no semen and sperms were found in the vaginal slides and underwear of the victim whereas the underwear of the appellant was found to be stained with semen and sperms. Statement under Section 161 of Cr.P.C. of the witnesses as well as Statement under Section 164 of Cr.P.C. of the victim have been recorded and after completion of the investigation, charge-sheet was filed against the appellant for the offences under Sections. 363, 366, 376 of IPC & Section 4 of Protection of Children From Sexual Offence Act, 2012 (in short “POCSO Act”) before the learned trial Court. 4. The learned trial Court has framed charge against the appellant for the offence under Sections 363, 366-A of IPC and Section 6 of POCSO Act. The appellant abjured his guilt and claimed trial. 5. In order to prove the charge, the prosecution has examined as many as 14 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him, plead innocence and submitted that he has been falsely implicated in the offence. 6. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in Para-1 of this judgment. Hence this appeal. 4 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses which cannot be made basis for conviction of the appellant for the offence in question. There is no legally admissible evidence produced by the prosecution with respect to the age of the victim so as to hold that on the date of the incident she was minor and below 18 years of age. In the Kotwari register (Article-A) which is submitted by the prosecution to prove the age of the victim, the name of any other girl is there and the name of the present victim is not there in the said Kotwari register and therefore, the same cannot be taken into consideration to determine the age of the present victim that she was minor on the date of incident. It is for the prosecution to prove that the date of birth of the victim is recorded in the said Kotwari register but the name of present victim is not mentioned in it. No other document with respect to the age of the victim and no ossification test report is produced by the prosecution to determine her age. She would further submit that the victim was in love affair with the appellant and she herself eloped with him on her own will and engaged in making consensual physical relation with the appellant. The victim has not raised any alarm and has not raised any objection while she was going with the appellant and making physical relation by him. Even she has not protested while she was subjected to sexual intercourse by the appellant, no injuries have been found on the body and there is no sign of any struggle. Therefore, no offence of any abduction for the purpose of illicit intercourse or offence of rape have been proved against the appellant and he is entitled for acquittal. 8. Per contra, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasons doubt, but for minor omission or contradictions, the evidence of prosecution witnesses are fully reliable. The 5 victim was proved to be minor on the date of incident by the Kotwari register in which the name of the parents of the victim has been mentioned and it is the primary document in which the date of birth of the victim is recorded. The Kotwari register (Article-A1/c) has been proved by the Kotwar (PW/7) and his evidence cannot be rebutted in cross-examination by the defence, therefore, the Kotwari register (Article-A1/c) is reliable piece of evidence on which the age of the victim can be determined. He would further submit that since the victim is proved to be minor, she was subjected to sexual intercourse by the appellant by cheating her with him which thus amounts to the offence of abduction for the purposes of illicit intercourse and offence of rape for which the learned trial Court has rightly convicted and sentence him which needs no interference. 9. I have heard learned counsel for the parties and perused the record. 10.The first question arose in the case as to whether the victim was minor and less than 18 years of age on the date of incident or not. 11.The prosecution has mainly relied upon the Kotwari Register (Article- A1c) which is sought to be proved by PW/7, who is the Kotwar of the village. 12.The PW/7 has stated in his evidence that the the Police has seized the Kotwari register with respect to the date of birth of the victim and after retaining its attested true copy, the original register was returned back to him which he brought with him. As per the Kotwari register the date of birth of the victim is 01/07/2000. He also stated that the name of child whose date of birth is recorded in the Kotwari register is XXX. Although, from the witness (PW/7), no question has been asked in his cross examination by the defence but it is the burden of the prosecution to prove that the Kotwari register which he has produced to prove the age of the victim, the name of the same victim is recorded in it whose name has been mentioned in the Kotwari register. The name of the present victim is “ABC” whereas the name mentioned in the Kotwari register is “XXX”. In absence of any explanation by the prosecution, 6 the same cannot be taken into consideration that it is the date of birth of the victim which has been recorded in the said Kotwari register (Article-A1c). 13.PW/6, the victim has stated in her evidence that she is aged about 15 years but she could not remember her date of birth. In cross-examination, she admitted that she could not tell her actual date of birth as she did not know her own date of birth. 14.PW/1 who is the mother of the victim has stated in her evidence that the victim was aged about 16-17 years but she could not know her date of birth. In cross-examination, she stated that she did not know as to on which year she has got married, she did not know the date of birth of the victim and she also could not state as to whether the victim was more than 18 years of age or not. She admitted that the victim has failed in 3-4 years in her studies. She also admitted that at the time of her admission in the school, her date of birth has not been disclosed by her. 15.Except these evidences, no other evidences are available in the record to prove the age of the victim. Although, the Kotwari register is primary document with respect to the date of birth of a person but it has to be proved that the date of birth of the same person is recorded in the said Kotwari register with respect of whom the offence have been tried. In the present case, the name of the victim is different than the name mentioned in the Kotwari register (Article- A1c) therefore, it cannot be said that the prosecution has produced the cogent and clinching evidence that it is the date of birth of the victim which has been recorded in the Kotwari register (Article-A1c). Yet the learned trial Court has found her minor on the basis of said Kotwari register. 16. So far as, the offence of kidnapping, procuring a minor girl for illicit intercourse and the offence of rape are concerned, I again examined the evidence of the victim (PW/6). 7 17. The victim has stated in her evidence that, she knew the appellant who came to Village- Teka to work as Mason and she used to talk to him. She was having love affair with the appellant and they regularly talk to each other through mobile phone. He also gave a love letter through her elder sister. He proposed her and wanted to marry with her. At the time of Ganesh festival, she had gone with him at Village- Tendukona in the house of the sister of the appellant. When her mother made a telephonic call to her, she informed her mother that she is at Raipur. The date on which, she had gone with the appellant, they stayed at Village- Shewaiyya at Sukhi Nadi where they made physical relation with each other, thereafter, they came to Village- Kuteri in the house of aunt of the appellant. Ultimately, they came to Village- Tendukona in the sister’s house of the appellant. Subsequently, she was recovered from the hotel at Village- Tendukona and she was being taken by her family members. In cross-examination she stated that she herself went from her house and met with the appellant near hilly area at Village- Teka. The appellant has not used any force against her. She admitted that at the time when the appellant was making physical relation with her, she has not protested, nor shouted for help. From the evidence of the victim, it is quite vivid that she neither protested nor made any efforts to get out from the clutches of the appellant even she has not tried to give any nail scratch mark or teeth bite on the body of the appellant to save herself. She herself left her house on her own will had gone with the appellant and engaged in making consensual physical relation with the appellant. From her 164 Cr.P.C. statement (Ex-P/14), it is also came in the record that she was having love affair with the appellant, they used to talk with each other by mobile. She on her own will left her house and had gone with the appellant and made physical relation with him. No any injuries have been found on the body of the victim and no sign of any protest or struggle was there. 8 18. PW/1 mother of the victim, has stated in her evidence that when she could not found her daughter in her house, she made a telephonic call to her then she disclosed that she eloped but she did not disclose as to with whom she eloped. Thereafter, she lodged the missing report to the Police. She resile from her Police statement and turned hostile and not supported the prosecution’s case. 19. PW/2 is the person who accompanied the Police person in search of the victim, when they came to know the victim is at Village- Tendukona, they had gone there and recovered the victim from a hotel and she was there in the hotel along with the appellant. She too have not fully supported the prosecution’s case and his evidence is shaky. 20. PW/10 Dr. Tara Agrawal, who medically examined the victim has not found any external injury on her body, there is no sign of any struggle were present. Although, on the vaginal slide and underwear of the victim were sent for its chemical examination but no semen and sperms were found in the vaginal slide of the victim which also goes in favour of the appellant. 21. From all these evidences, the picture came on record that the victim was in love affair with the appellant. She herself went along with him on her own will. They made consensual physical relation with each other and on the next day, her family member got her recovered from Village- Tendukona. When her age could not be established by the prosecution, she cannot be said to be minor on the date of incident and therefore, when she has on her own will engage in making consensual physical relation with the appellant, no offence either of abduction for the purpose of illicite intercourse and for the rape are made out against the appellant. 22.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 9 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 levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 23.From the foregoing reasons, this Court is of the considered opinion that in absence of any cogent and clinching evidence, the appellant cannot be convicted for the alleged offence and therefore, the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentences passed against the appellant are set aside. The appellant is acquitted from all the charges. The appellant is reported to be on bail. His bail bond shall continue for the further period of six months as provided under Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023. 24.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/- (Ravindra Kumar Agrawal) Judge Sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.03.04 13:42:05 +0530