1 2025:CGHC:56144 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 296 of 2005 Krishna, S/o Dadiram Dehare, Aged about -23 years, R/o. Sukhatal, Police Chowki Dadhi, Police Station – Nawagarh, District – Durg (C.G.) ... Appellant Versus State Of Chhattisgarh, Through : Police Chowki Dadhi, Police Station – Nawagarh, District – Durg (Chhattisgarh) ... Respondent {Cause title, as taken from Cause Information System} For Appellant : Mr. Dashrath Kushwaha, Advocate For Respondent/State : Mrs. Mukta Tripathi, Panel Lawyer (Hon’ble Mr. Justice Naresh Kumar Chandravanshi) JUDGMENT ON BOARD 18.11.2025 1. This criminal appeal has been preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (henceforth, Cr.P.C.) challenging judgment of conviction and order of sentence dated 07th March, 2005 passed by Upper Sessions Judge, Bemetara, Durg (now District Bemetara) in Sessions Case No. 261/2004, whereby the learned Sessions Judge has convicted the appellant for the offence under Section 376 of the IPC and sentenced him to undergo rigorous imprisonment for seven years and pay fine of Rs.1,000/-, in default of payment of fine, to undergo additional rigorous imprisonment for three months. [Fine amount has already been deposited]. 2 2. Case of the prosecution, in brief, is that minor victim and appellant were resident of same vilage. On 13.8.2004, when victim had gone to attend nature's call alongwith her elder sister, then appellant abducted her on the pretext of marriage with the help of his friend and took her to village Singhanpuri where he kept her in the house of his niece ( Bhanji) for about 4-5 days and on the pretext of marriage appellant sexually exploited the victim, thereafter, he took her to Raipur and village Bundeli, where he took her in the house of his relatives and repeatedly sexually exploited her. PW-3 Father of victim (PW-1) lodged FIR (Ex.P-5) against appellant at Out Post Dadhi, Thana Navagarh, District Durg against the appellant for offences under Sections 363, 366 & 376 of IPC. The victim was recovered from the possession of the appellant from the house of Sampatlal at village Bundeli on 5.9.2004 vide recovery memo ( Ex.P-10). 3. After recovery, statement of the victim and other witnesses were recorded by the Police, in which, she revealed that appellant abducted her on the pretext of marriage and sexually exploited her repeatedly for the said period. Birth / Death Report Form (Ex.C-1) of victim was seized from the then village Kotwar Kanwal Singh {Court witness} vide seizure memo (Ex.P-6). Undergarments {Janghiya & petticoat} were seized from victim (PW-1). Her medical examination was conducted by Dr. Rajshree Devdhar (PW-11), in which, vide MLC report (Ex.P-12) dated 6.9.2004, no external or internal injuries were found on the person of victim, therefore, she collected two vaginal slides of victim and handed over the same to concerned Constable for its chemical examination. She also suggested ossification test of victim for determination of her age, which was conducted by Dr. A.K. Sahu (PW-10), in which vide his report (Ex.P-3) dated 8.9.2004, he opined that age of victim was about 16 years at the time of incident. Spot map was prepared by the 3 Patwari & Police vide Ex. P-4 & P-14, respectively. Underwear (Janghia) of appellant/accused was also seized from him vide seizure memo (Ex.P-7). Vaginal slides of victim was also seized vide seizure memo (Ex.P-11). After completion of usual investigation, charge-sheet for the offence under Section 363, 366 (A) & 376 of IPC was filed against the appellant before Additional Chief Judicial Magistrate, Bemetara. 4. Upper Sessions Judge, Bemetara, (C.G) framed charges against the appellant for the offences under Sections 363, 366 & 376 of IPC, which were read over and explained to the appellant, who abjured the guilt and claimed trial. 5. So as to hold appellant/accused guilty, the prosecution examined as many as 13 witnesses and exhibited 20 documents. Statement of the appellant/accused was recorded under Section 313 of Cr.P.C. in which he denied all the circumstances appearing against him in the prosecution evidence, pleaded innocence and false implication. No defence witness has been examined by the appellant in his defece. 6. The Upper Sessions Judge, Bemetara after appreciating oral and documentary evidence available on record, vide its judgment dated 7th March, 2005, acquitted the appellant of the offence under Sections 363 & 366 of the IPC, however, convicted him for the offence under Section 376 of the IPC and sentenced him, as has been mentioned in opening paragraph of the judgment. Against which, instant appeal has been preferred questioning the same. 7. Learned counsel appearing for the appellant would submit that as per case of prosecution and judgment rendered by learned trial Court, the victim was a minor, I.e. below 16 years of age on the date of the incident but 4 Dr. A.K. Sahu (PW-10) in his ossification test report (Ex.P-3) has stated that her age was 16 years on the date of incident. He (PW-10) has further admitted in his cross-examination that '2 year plus minus' is applicable in aforesaid age, therefore, it cannot be denied that on the date of incident, age of victim was about 18 years, hence, finding recorded by learned trial Court that victim was minor on the date of incident is perverse & contrary to the evidence available on record. He further submits that medical report of victim does not support her statement, FSL report has also not been proved, except victim, statement of other witnesses are hearsay and victim herself has admitted in her cross- examination that while going with the appellant and while residing with him at various places, she never raised any alarm to protect herself or seeking help from other persons, which shows that it was consensual relation and it has also not been proved that the victim was a minor on the date of the incident, despite that, learned Upper Sessions Judge has convicted him for the offence under Section 376 of IPC, which is perverse and contrary to the evidence available on record, hence, he prayed that appeal may be allowed and the appellant may be acquitted of the alleged charge by setting aside the impugned judgment passed by learned Upper Sessions Judge. 8. Per contra, learned counsel for the State/respondent would support the impugned judgment passed by learned Upper Sessions Judge. 9. I have heard learned counsel for the parties, considered their rival submissions made and also went through the record of the trial Court with utmost circumspection. 10. In the instant case, learned Upper Sessions Judge has held victim minor i.e. below the age of 16 years, on the date of incident i.e. 13.08.2004. Though victim (PW-1), her mother (PW-2) and her father (PW-3) have not 5 stated about date of birth of victim in their deposition, but mother & father of the victim have stated in their deposition that on the date of incident, age of victim was 14 years. 11. Dr. A.K. Sahu (PW-10) had conducted ossification test of victim, in which, vide his report (Ex.P-3), he has opined that age of victim was 16 years on the date of incident. He has also admitted in his cross-examination that “2 years increase / decrease” may be applicable in aforesaid age. On the basis of aforesaid statement of Dr. A.K. Sahu (PW-10), learned counsel for the appellant submits that it cannot be ruled out that on the date of incident, age of victim was about 18 years. But, this contention of learned counsel for the appellant is not found to be sustainable, as in instant case Kotwari record [Janm / mrat – Janm report form (Ex.C-1)] of victim has been proved by Kotwar Kawal Singh {Court witness}, who has specifically stated in his statement that he was the Kotwar of village Barbaspur from 6.12.1989 and at the time of birth of the victim, on the basis of information given by her father Ram Lakhan (PW-3), he had recorded the date of birth of the victim as 28.10.1990. He has also proved his signature in original record (Ex.P-C1) {photocopy of same is Ex.P-C1C}. He has further stated that victim are two sisters and the victim is second daughter of her parents, which also get support from deposition of her mother (PW-2). Though, in Janm / Mrat -Janm report Form (Ex.C-1), only one name of the child is mentioned, but even right from FIR to deposition of victim and her parents, it has been mentioned that there are two names of victim, one of which is mentioned in Ex.C-1, therefore, it cannot be denied that Janm / Mrat -Janm report Form (Ex.C-1) is pertaining to birth certificate of victim, in which, her date of birth has been mentioned as 28.10.1990 and on the basis of said date of birth, on the date of incident i.e. on 13.8.2004, her age was 13 years, 9 months & 16 days. 6 12. Though, Dr. A.K. Sahu (PW-10) has opined that as per ossification report (Ex.P-3) age of victim was 16 years on the date of incident and 'two years plus minus' is applicable in aforesaid age, but when there is conclusive evidence of Kotwari record (Ex.C-1), which has also been proved by Kotwar – Kawal Singh, who has been examined as 'Court Witness', therefore, neither the ossification report (Ex.P-3) has been relied upon nor the benefit can be extended to the appellant on the basis of that report. 13. The manner & procedure to determine the age of minor / juvenile has been contemplated in Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (henceforth, JJ Act, 2015), which reads thus :- “ 94. Presumption and determination of age - (1) xxx xxx xxx (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 the 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; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age 7 determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.”................. 14. Hon'ble Supreme Court while emphasizing the aforesaid provision in the cases of Omprakash Vs. Union of India 1 and Rajni Vs. State of Uttar Pradesh 2 has held that age of the minor should be determined according to Section 94 of the JJ Act, 2015, which is a reiteration of Rule 12 of the Juvenile Justice (Care & Protection of Children), Rules, 2007, which mandates the explicit outline, a sequence for determining a person’s age i.e. date of birth certificate from a School, or matriculation / equivalent certificate from the concerned examination Board, if available; and in the absence thereof; a birth certificate given by a Corporation or Municipal Authority or a Panchayat. And only in the absence of above document, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. 15. Though, in Section 94 (2) of JJ Act, 2015, kotwari record has not been mentioned, but birth certificate issued by Panchayat has been mentioned, prior to such entry made by the Panchayat, it was recorded by village Kotwar in his Kotwari Register. This fact has been proved by Kotwar Kawal Singh (Court witness), therefore, contention raised by learned counsel for the appellant on the basis of deposition of Dr. A.K. Sahu (PW-10), that victim cannot be held to be minor on the date of incident is not sustainable. Rather, 1 Criminal Appeal No. 4229/24, decided on 8.1.2025 2 2025 LiveLaw (SC) 602 8 in view of foregoing discussion, it is found that learned Upper Sessions Judge has rightly held that victim was minor on the date of accident. 16. So far as offence of rape committed by the appellant with the victim is concerned, victim (PW-1) has categorically stated that the appellant firstly took her to village Singhanpuri village, then to Raipur, and then to Bundela village where he kept her in the house of his relatives and she was recovered vide recovery memo (Ex.P-10) from the possession of the appellant on 5.9.2004. In between, appellant repeatedly sexually exploited her, which was also told by her to her parents. Nothing has been elicited in cross- examination of victim to disregard her aforesaid deposition. Even her statement of sexual exploitation was not rebutted in cross-examination. 17. Though statement of victim does not get support from medical report and deposition of Dr. Rajshree Devdhar (PW-11), who examined the victim and prepared MLC report (Ex.P-12) and FSL report pertaining to the vaginal slides and undergarments of victim has not been proved, but uncontroverted & unrebutted deposition of minor victim inspires confidence of the Court with regard to trustworthiness of the same. 18. In the case of Ganesan vs. State Represented by its Inspector of Police 3 , Hon'ble Supreme Court while considering various judgments rendered by it has held that in the cases involving sexual offences, only on the basis of testimony of the prosecutrix, if found to be worthy of credence and reliable, the court may convict the accused without corroboration. 19. In the matter of Nirmala Prem Kumar & another Vs. State represented by police4, their Lordships of the Supreme Court while reiterating aforesaid dictum has held in paragraph 15 as under :- 3 2020 (10) SCC 573 4 Criminal Appeal No. 1098 of 2024 9 “15. What flows from the aforesaid decision is that in cases where witnesses are neither wholly reliable nor unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution’s case. While the victim’s testimony is usually enough for sexual offence cases, an unreliable and insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.” 20. In the case in hand, it has been proved by minor victim that the appellant had taken her various places and repetedly sexually exploited her. Nothing has been elicted in her cross-examination to discard aforesaid fact. She also told about aforesaid fact to her mother (PW-2) after her recovery, therefore, not getting support from medical evidence, deposition of victim (PW-1) cannot be discarded. Hence, this court is of the opinion that learned Upper Sessions Judge has not committed any error in convicting & sentencing the the appellant for the offence under Section 376 of IPC, which need not to be interfered with by this Court. 21. As a fallout and consequence of the aforesaid discussion, the criminal appeal, being devoid of substance, is liable to be and is hereby dismissed. No cost (s). 22. The appellant is reported to be on bail. He is directed to surrender before the concerned trial court to undergo to serve the remaining jail sentence, if any. 10 23. Record of the concerned Upper Sessions Judge be returned forthwith along with a copy of this judgment for compliance and necessary action. Sd/- (Naresh Kumar Chandravanshi) Judge Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.12.08 11:15:47 +0530