1 2025:CGHC:17559 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1092 of 2016 Rakesh Kumar Dubey S/o Ramji Dubey Aged About 59 Years R/o Laal Maatwara, Police Station Kanker, District North Bastar Kanker Chhattisgarh., Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Police Station Kanker, District Kanker Chhattisgarh., Chhattisgarh ... Respondent For Appellant : Mr. Varunendra Mishra, Advocate For State/Respondent : Mr. Jitendra Shrivastava, Dy. Govt. Adv. Hon'ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board (16.04.2025) 1. This appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (in short CrPC) has been preferred by the appellant (in jail) being aggrieved by the judgment of conviction and order of sentence dated 23.07.2016 passed in Special Session Case No. 30/2014 by Upper Sessions Judge (F.T.C.) and Special Judge (Protection of Children from Sexual 2 Offences Act, 2012) North Bastar, Kanker, whereby the appellant has been convicted and sentenced as under:- Conviction Sentences Under Section 323 of Indian Penal Code (two times) Rigorous Imprisonment for 06-06 months and fine amount of Rs. 500/- - Rs.500/-, in default of payment of fine amount additional rigorous imprisonment for one-one month. Under Section 328 of Indian Penal Code Rigorous Imprisonment for 05 years and fine amount of Rs. 2000/-, in default of payment of fine amount additional rigorous imprisonment for three month. Under Section 506-II of Indian Penal Code Rigorous Imprisonment for 03 years with fine of Rs. 1,000/- and in default of payment of fine amount additional rigorous imprisonment for 03 months. Under Section 376(2) (I)of the Indian Penal Code Rigorous Imprisonment for 10 years with fine of Rs. 5,000/- and in default of payment of fine amount additional rigorous imprisonment for 06 months. All the sentences will run concurrently. 2. Brief facts of the case are such that, complainant on 21.09.2014 filed a complaint against the appellant stating that on 30th June, 2014 the appellant has made her unconcious by making her smell something in a handkerchief and raped her. When she gained consiousness, she saw that blood was coming out. Thereafter she raped her continuously several times and threatened her that if she told this to anybody then he would bury her under the ground. Due to the fear of this threat, she did not even tell her mother and tried to stop the 3 accused appellant from doing anything with her. However on 19.09.2014 when she told this to her mother the accused appellant said that he will dishonour her and beat her up and left her on the road in Telgara. On 20.09.2014 a meeting was held in this respect in the village and on being questioned about the incident to the accused appellant, he stated that do whatever you want to do. Upon this FIR(Ex. P-02) was lodged by the complainant for the offence punishable under Section 376 (2)(I), 506, 323 of the Indian Penal Code and under Section 3 and 4 of the POCSO Act, 2012. 3. After due investigation and after completion of remaining formal proceedings, charge sheet was filed against the present accused appellant, wherein he was held accused for the offence punishable. 4. To prove the guilt of the accused/appellant, the prosecution has examined as many as 29 witnesses. Statements of the appellant under Section 313 of the Cr.P.C. was recorded, wherein accused/appellant has pleaded his innocence and false implication in the matter. After completion of trial, the trial Court convicted and sentenced the appellant as mentioned in para one of this judgment. Hence, this appeal. 5. Learned counsel appearing for the appellant submits that 4 impugned conviction and sentence passed by the learned trial court is invalid, improper, contrary to law and procedure. The learned trail court failed to see that, to start with investigation of crime in question FIR based on written complaint has been delayed and delay caused has not been explained by the prosecution. Moreover learned trial court has committed grave error by arriving at the conclusion that the girl was minor, but this finding has not been supported by clinching evidence of PW-02 who being the mother of PW-01 is unable to tell actual date of birth of PW-01. Maternal uncle of the girl who got her admitted in the school has not been examined. 6. Further he stated that there are huge contradictions in the statement of the prosecutrix. Learned trial court has committed grave illegality in relying upon concoted, after thought unnatural, untrustworthy and unbelievable statement para 01 of PW-01 stating thereby that, while she was sleeping without knowing door, whether it was opened or not, accused brought with him small Dabba, poured medicine upon napkin let her to inhale causing her senseless and she did not know what was done by accused, and on regaining her senses accused was not there, but she saw blood upon her thigh which oozed out of her vagina. Such statement of prosecutrix is full of perversity as in the stage of sleeping it was 5 impossible for prosecutrix to see and to identify that, it was accused who brought Dabba, poured medicine on napkin and let her to inhale and made her senseless. Thus on the above mentioned ground he prays to set aside the impugned judgment and appellant be acquitted from all the charges leveled against him in the interest of justice. 7. Per contra, learned counsel appearing for the State/respondent opposes the argument raised by counsel for the appellant and supported the impugned judgment passed by the Trial Court. He stated that after due diligence and consideration the trial court has convicted the present appellants under the said sections. Prosecution has undoubtedly proved their case beyond reasonable doubt. Hence interference to the judgment so passed by the concerned trial court would largely affect the justice of the victim. 8. I have heard learned counsel appearing on behalf of the parties and perused entire evidence adduced by the complainant and gone through the evidence available on record with utmost circumspection. 9. Whenever the conviction is under the POCSO Act, proving the age of the victim is of utmost importance. And in order to 6 prove the age of the victim, statements of the examined witnesses relating to the age of the witnesses and the documentary evidences are to be seen. 10. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under : “94. Presumption and determination of age- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with inquiry under section 14 or section 36, as the case may be,without waiting for further confirmation of the age. (2). In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake process of age determination, by seeking evidence by obtaining- (i) The date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) The birth certificate given by a corporation or a municipal authority or a panchayat; 7 (iii) and only in the above, age shall be determined by an ossification test or any other latest medical age determination test conduct on the orders of the Committee or the Board: Provided such age determination test conducted on the order the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 11. In order to consider the age of prosecutrix, this Court has to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the Dakhil Kharij Register (Ex. P-16) wherein the date of birth of prosecutrix is mentioned as 18.09.2001 at serial no. 68. The author of the Dakhil Kharij Register PW-05 has been duly examined. This is a legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In presence of examination of author of the School Admission and Discharge Register, the same can be taken into consideration to determine the age of the prosecutrix. 12. Prosecutrix (PW-01) in her deposition has stated that 8 her age is 14 years. The mother of the prosecutrix PW-02 has also stated that the age of her daughter was 14 years at the time of incident. 13. From the perusal of the statements of prosecutrix , her mother as well as other prosecution witnesses and after considering the evidence collected by the prosecution, I find that there are clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the prosecutrix was minor and less than 18 years of age on the date of incident, and the Trial Court in the impugned judgment has also held the prosecutrix minor. Accordingly, this Court finds it inappropriate to set aside the findings given by the trial Court that on the date of incident, the victim was not minor. Prosecution has proved that the prosecutrix was below 18 years beyond reasonable doubt. 14. Now the next question that arises out of the said incident that whether the appellant has committed rape with the prosecutrix or not? Prosecutrix PW-01 in her 9 deposition deposed that she and her mother used to live in the appellant’s house. There they used to work as servant in appellant’s house. On 30th June, 2014 when she was in her room appellant came with a small bottle in his hand and poured the liquid of the bottle in a handkerchief and made her smell that, due to which she got unconscious. When she regained her senses, she found that the blood was oozing out of her vagina and she was feeling pain there. On the very next day, the appellant again came to her room and committed rape. Upon which she told the appellant that if he will do the same again, she will tell her mother. The appellant threatened her to kill. On 19th of September, 2014 she told everything to her mother. On being asked by her mother to the appellant, the appellant threw ed all their things and did marpeet with her mother. Meeting was called upon this dispute, in which the appellant told that do anything you can do. Thereafter she lodged an FIR against the appellant. 15. Deposition of the prosecutrix (PW-01) has been completely supported by her mother (PW-02). PW-04 Smt. 10 Mathura Bai in her deposition has supported the fact that the appellant has committed marpeet with the mother of the victim. Upon which she tried to stop the appellant but the appellant by stating that it is their personal matter remain at a distance. 16. The prosecutrix was examined by the Doctor, in which the doctor stated that she has no internal as well as external injury. The hymen was ruptured. But it is pertinent to mention that the medical examination of the prosecutrix took place after three months of the rape committed upon her. Therefore, it is but natural that it could not be ascertained whether the prosecutrix was raped or not. 17. On bare perusal of the evidences placed on record as well as the depositions of the witnessed, this court finds that the age of the victim at the time of incident was only 12 years and 09 months approximately, and the appellant has committed rape with the prosecutrix and when she informed about the same to her mother and after being 11 asked by her mother, he did marpeet with the mother. Thereafter made them leave his house by throwing away all their household articles. There is no substantial contradiction or omission found in the statement of the prosecutrix. The statement of the prosecutrix has inspired confidence and the prosecution has produced clinching evidence in this regard that the appellant has committed rape with the prosecutrix. Hence this court is of the considered opinion that the appellant committed rape with the minor prosecutrix, therefore, the conviction and sentence of the appellant by the learned trial court cannot be said to be perverse, illegal or contrary to the law. The present appeal deserves to be and is hereby dismissed. 18. Consequently, the appeal is dismissed . The conviction and sentence of the appellant under the aforementioned sections is affirmed. sd/- (Arvind Kumar Verma) Judge alfiza