1 2025:CGHC:60559 The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full 07.10.2025 12.12.2025 -- 12.12.2025 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 610 of 2007 Shekhar Kumar Yadav S/o Keshboram Yadav, R/o Village- Khatanga, P.O. Charaidand, P.S. Duldula, Tahsil Kunkuri, District- Jashpur, C.G. ... Appellant versus State of Chhattisgarh, through S.H.O. Police Station- Duldula, District- Jashpur (C.G.) ----State _____________________________________________________________ For Appellant : Ms. Meena Shastri, Advocate. For State : Ms. Sunita Sahu, PL _____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey J. C A V Judgement 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 13.07.2007 passed by learned Sessions Judge, Jashpur, District- Jashpur (C.G.) in Sessions Trial No.89/2006, wherein the said Court convicted the appellant and Digitally signed by AMIT PATEL 2 sentenced him as under:- Conviction Sentence Under Section 376 (1) of IPC. R.I. for 07 years, with fine amount of Rs. 3,000/-, in default of payment of fine, to undergo additional R.I. for 03 months. 2. Brief facts of the case are that on 13.10.2005, the prosecutrix/complainant (PW-8) with her cousin sisters and brother went to watch orchestra programme at village- Duldula, while returning to the home after completion of the programme, they met with the appellant, who was on his motorcycle and the appellant offered lift to the prosecutrix by saying that he will drop her to her uncle’s house. On this, prosecutrix/complainant (PW-8) and her cousin sister (PW-9) sat on his motorcycle, but the appellant drove some further and the prosecutrix asked him to stop, to which, the appellant took them Kathanga School and ordered to PW-9 to stand beside his motorcycle and by saying so, the appellant by threatening the prosecutrix, has taken away her to the veranda of the campus of school and committed forcible sexual intercourse with her, thereafter he threatened her to death by saying that to not disclose about the said fateful incident to anyone and he left from the spot, whereas the prosecutrix and her cousin sister PW-9 went to their uncle’s house. On 07.01.2006, the prosecutrix again came to Village- Kathanga and apprised the fact to the appellant that she got pregnant and asked him to marry her, which he refused. Then, the prosecutrix came to her home and narrated the entire fateful incident to her parents. On 06.03.2006, the prosecutrix’s father convened a village meeting and in the said meeting accused was 3 not present, therefore, the prosecutrix/complainant (PW-8) lodged an F.I.R. on 17.03.2006 vide Ex. P/10 at Police Station- Duldula. During the investigation, obtained the consent from the prosecutrix and her father vide Ex. P/13 and medical examination was conducted by PW-5 Dr. Alpana Toppo and gave her report vide Ex. P/6. Spot maps were prepared, motorcycle was seized from Keshbo Yadav vide Ex.P/2. Medical examination of the appellant was also conducted by taking his semen sample vide Ex. P/16 from concerned Constable and PW-6 Dr. Bipin Indravar gave his report vide Ex. P/7. To ascertain the age of the prosecutrix, a copy of admission/dakhil kharij register of the school was seized from the Principal PW-7 Kartikram Chouhan vide Ex. P/9 “C” and birth certificate was seized vide Ex. P/8, where date of birth of the prosecutrix is written as 08.05.1988. Statements of the witnesses were recorded and the appellant was arrested. After completion of due and necessary investigation, he was charge-sheeted before the Court of concerned Jurisdictional Magistrate, who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellant for alleged commission of offence under Sections 363 and 376 of IPC. The appellant/accused has abjured guilt was subjected to trial. 3. In order to bring home the guilt, the prosecution has examined as many as 10 witnesses to prove its case against the appellant. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C., in which he denied all the incriminating circumstances appearing against him in the prosecution case and pleaded his innocence and false implication in this case. However, no witness examined by him in 4 his defence. 4. After appreciation of oral as well as documentary evidence led by the prosecution, learned Trial Court has convicted the appellant and sentenced him as mentioned in inaugural paragraph of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that judgment of conviction and sentence passed by trial Court is arbitrary, illegal and contrary to the law applicable to the facts and circumstances of the case, learned trial Court erred in holding the appellant guilty of rape. The prosecutrix voluntarily joined the company of the appellant, when he offered her lift on his motorcycle to her uncle’s house. When she became pregnant, she lodged an F.I.R. (Ex. P/10) after five months, such conduct of her itself shows that she is the consenting party to the act of the appellant. It is clear that the prosecutrix is a major lady and it is also an admitted position that the relationship between the prosecutrix and the appellant was consensual. However, if the entire case of prosecution is taken as it is then also the alleged offence is not made out against the appellant, but the learned trial Court convicted the appellant by ignoring material contradictions and omissions and without any clinching and legally admissible evidence. Thus, the findings recorded by learned trial Court are highly perverse and the impugned judgment of conviction and order of sentence being bad in law is liable to be set aside. In support of her contention, she relied upon the judgment of Hon’ble Apex Court in the matter of Biswajyoti Chatterjee vs. State of West Bengal and Anr.1 6. Ex adverso, learned counsel for the State opposes the submissions of 1 (2025) 5 SCC 749 5 learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt, however, learned trial Court minutely appreciated the oral and documentary evidence, thereby rightly convicted the appellant for the alleged offence and the impugned judgment of conviction and order of sentence needs no interference by this Court. 7. I have heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. It is evident from record of learned Trial Court that it framed charges against the appellant for offence under Sections 364 and 376 of IPC. Learned Trial Court after appreciating the oral and documentary evidence convicted the appellant for the aforesaid offence and sentenced as mentioned in inaugural para of this judgment. 9. As per prosecution, on the date of incident, the prosecutrix (PW-8) was aged about 16 years old. 10. The prosecutrix/complainant (PW-8) stated in her examination-in-chief that she is aged about 17 years and on the date of incident i.e., 12.10.2005 she went to Duldula to see orchestra programme at about 8:00 pm with her cousin sisters, after watching the programme while she was returning along with her cousin sisters, at that time the appellant Shekhar Yadav came on his motorcycle and asked them as to how much will they walk and offered lift to them by saying that he will drop them at village- Khatanga. On this, prosecutrix/complainant (PW- 8) and her cousin sister (PW-9) sat on his motorcycle, the appellant took them near Primary School and ordered to PW-9 to stand beside his motorcycle and by saying so, the appellant by threatening the 6 prosecutrix, has taken away her to the veranda of the campus of school and committed forcible sexual intercourse with her. She further stated that she did not disclose the fateful incident to her family members or to anyone. She remained quiet at her parent's house for three to four months, however, when she started vomiting and skipped her menstrual cycle she understood that it were the symptoms of pregnancy and then she headed back to her uncle’s village- Khatanga, upon reaching there, apprised to the appellant that she got pregnant and asked him to marry her, which the appellant refused. Thereafter, she narrated the whole incident to her parents, then her father went to meet the parents of the accused, but they stated nothing. In this regard, a village meeting was convened by her father, where the appellant was not present and then lodged the report against the appellant and due to forcible sexual intercourse, he gave birth to a boy child, he would be 6- 7 months. She lodged an F.I.R. at Police Station Duldula vide Ex.P/10, wherein admitted her signature on A to A part. In her cross-examination, she denied this suggestion that she had physical relations with other persons. 11. PW-1, cousin of the prosecutrix has stated that the she went to Duldula to see orchestra programme along with her cousins and while they were returning to their home after completion of the orchestra programme, two of her cousins viz., prosecutrix (PW-8) and PW-9, were offered lift by the accused on his motorcycle and she further stated that she is unaware as to where they had been. 12. PW-9, another cousin of the prosecutrix has stated that she went to Duldula to see orchestra programme with her cousins, after watching the programme while she was returning along with her cousins, at that 7 time the appellant Shekhar Yadav came on his motorcycle and shown them sympathy by saying as to how much will they walk and offered lift to them by saying that he will drop them at their home. On this, prosecutrix/complainant (PW-8) and she sat on his motorcycle, the appellant took them near Primary School at Village- Khatanga and ordered her to stand beside his motorcycle and by saying so, the appellant has taken away her cousin sister (prosecutrix) to the veranda of the campus of school. When the prosecutrix came out from the primary school, on the way, the prosecutrix stated to her that the accused Shekhar has committed forcible sexual intercourse with her by threatening her to cause death. In her cross-examination, she admitted this fact that incident had taken place at about 1:00 in the night and stated that when the prosecutrix and the accused went to the Primary School, she stood near the motorcycle of the accused for one hour. She has also admitted this fact that she did not disclose the fateful incident to anyone. 13. Thus, conduct of prosecutrix (PW-08) and her cousin sister (PW-9) clearly shows that the prosecutrix was a consenting party to the act of the appellant. 14. Now, the next question for determination by this Court is that whether the prosecutrix (PW-08) was minor at the time of incident or not? 15. PW-7 Karthikram Chouhan, Principal of Primary School, Bodakachar has stated that police seized admission/dakhil kharij register vide Ex. P/9- C and as per this register, the name of the prosecutrix is at Serial No. 244, wherein her date of birth is written as 08.05.1988 and she was admitted in Class-I on 02.07.1996. In his cross-examination, he 8 admitted this fact that entry of admission was not made by him in the said register and also admitted that the entry was not written before him. He further admitted in his cross-examination that in admission/ dakhil kharij register, there was no mention of any sign of Principal of said school. However, in this case, the prosecution did not file any other documentary proof regarding the age of the prosecutrix. 16. The Hon’ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police2 observed in paras 40, 42, 43, 44 & 48 of its judgment as under: "40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by thePrincipal. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- 2. (2011) 2 SCC 385 9 "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court 10 in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. ThePrincipal has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P. held as follows:- “The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for 11 obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.” 17. The prosecution has failed to prove the age of the prosecutrix below 16 years at the time of incident. 18. Dr. Alpana Toppo (PW-5), who examined the complainant/prosecutrix 12 (PW-8) on 18.03.2006. After examination, she opined that the prosecutrix was five month’s pregnant. 19. The prosecutrix (PW-8) stated in her statement that her son was aged about 6-7 months. However, in this regard, no DNA test has been conducted by the prosecution to ascertain the paternity of the child of the prosecutrix. 20. The Hon’ble Apex Court in the matter of Biswajyoti Chatterjee (supra) observed in paras 16 to 22 of its judgment as under: “16. In our considered view, even if the allegations in the FIR and the charge-sheet are taken at their face value, it is improbable that the Complainant/Respondent No. 2 had engaged in a physical relationship with the Appellant, only on account of an assurance of marriage. As rightly observed by this Hon’ble Court in the case of Prashant Bharti Vs State of NCT of Delhi3that it is inconceivable, that the complainant or any woman would continue to meet the Appellant or maintain a prolonged association or physical relationship with him in the absence of voluntary consent on her part. 17. In the case of Uday Vs State of Karnataka4, the Court had acquitted the accused on the basis that she was a mature college student who had consented to sexual intercourse with the accused of her own free will. It is unlikely that her consent was not based on any misconception of fact. In Uday (supra), the Court noted that: “21. It therefore appears that the consensus of judicial 3 2024 SCC OnLine SC 3375 4 2003 4 SCC 46 13 opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.” 18. A careful reading of the evidence on record also clearly shows that there is no evidence against the Appellant, to conclude that there was any fraudulent or dishonest inducement of the Complainant to constitute an offence under Section 415 IPC. One may argue that the Appellant was in a 14 position of power to exert influence, however, there is nothing on record to establish ‘inducement’ or ‘enticement’. There is also no material on record, that there was any threat of injury or reputation to the Complainant. A bare allegation that the Appellant had threatened the Complainant or her son cannot pass the muster of an offence of criminal intimidation under Section 506 IPC. 19. On the other hand, we also find inconsistencies in the statements of the prosecutrix insofar as it is deposed by her in the statement under section 164 CrPC, that it was only upon the insistence of the Appellant, that she had handed over the cases to Advocate, Mr. Gopal Chandra Dass; however, the challan/charge-sheet reveals that Mr. Gopal Chandra Dass was well known to the Complainant, as a senior in college and it was Mr. Gopal Chandra Dass who had introduced the Complainant to the Appellant, in respect of her pending cases. This, in no manner can be a minor contradiction, and casts a suspicion on the entire narrative of the Complainant. Notwithstanding, this fact does not in any manner buttress that the relationship inter- se between the Appellant and the Complainant, was not consensual in nature. 20.We find that there is a growing tendency of resorting to initiation of criminal proceedings when relationships turn sour. Every consensual relationship, where a possibility of marriage may exist, cannot be given a colour of a false 15 pretext to marry, in the event of a fall out. It is such lis that amounts to an abuse of process of law, and it is under such circumstances, that we deem fit to terminate the proceedings at the stage of charge itself. 21.The incident is of the year 2014 and any further litigation, will only prolong the suffering of both the parties, who are living their own separate lives. 22.In our considered view, considering the factual matrix of the case, it is clear that the physical relationship between the Complainant and the Appellant was consensual, cannot be said to be without her consent or against her will. In light of the aforesaid, we are also of the considered opinion that it would be in the interest of justice if the proceedings are terminated at this stage itself. Consequently, impugned Order of the High Court dated 23.02.2024 passed by the Hon’ble High Court of Calcutta in CRR No. 639/2024 is set aside.” 21. In light of the aforesaid decisions, if the facts and evidence emerging in the present case are examined, it is clear that the physical relationship between the prosecutrix/complainant (PW-8) was consensual cannot be said to be without her consent or against her will. It is also clear that at the time of physical relations, it does not appear that her consent for sexual indulgence was obtained by the appellant under any misrepresentation of fact or through any false promise of marriage or the consent was given under any misconception. As per prosecutrix/ complainant (PW-8), when she got pregnant, then she apprised this fact 16 to the accused and sought suggestion from him regarding her pregnancy, upon this, the accused stated her to not to do anything with the said pregnancy and gave her assurance of marriage. Thus, the prosecution has utterly failed to prove that the prosecutrix (PW-8) was minor on the date of the incident, but the learned trial Court did not appreciate all these facts minutely and thereby has wrongly convicted the appellant for offence under Section 376 (1) of IPC. 22. Ex consequenti, the appeal is allowed and the impugned judgment dated 13.07.2007 of the learned trial Court is hereby set aside. The appellant is acquitted of the charge leveled against him. 23. The appellant is reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellant is also directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon'ble Supreme Court. 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/- (Rajani Dubey) JUDGE AMIT PATEL