1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 269 of 2020 1 - Bablu Prasad Bareth S/o Late Shri Santosh Bareth Aged About 26 Years R/o Village Kurda, Police Station Champa District Janjgir Champa Chhattisgarh. ….Appellant versus 1 - State of Chhattisgarh Through District Magistrate, Janjgir Champa District Janjgir Champa Chhattisgarh. ... Respondent(s) For Appellant : Shri Bishnu Muni, Advocate. For Respondent : Ms. Isha Jajodiay, Panel Lawyer. Hon’ble Shri Ravindra Kumar Agrawal, J Judgment on Board 06.02.2025 1. The present appeal has been filed by the appellant against the judgment of conviction and order of sentence dated 22.11.2019 passed by the Special Judge (POCSO Act), District Janjgir Champa, in Special Case No.49 of 2017 whereby the appellant has been convicted for the offence under Section 376 IPC and sentenced to undergo RI for 10 years with fine of Rs.1000/-, in default of payment of fine amount, additional RI for three months. 2. Brief facts of the case are that on 24.07.2017 at about 10:20 AM the victim, PW-2, lodged a report with the allegation that on 23.07.2017 at about 6:30 PM when she went to answer the nature’s call near Digitally signed by INDRAJEET SAHU Date: 2025.02.12 18:00:56 +0530 2 Faraswani canal, she found a boy standing there who advised him not to go towards canal as a snake is there. When she was returning back to her house, he caught hold her hand, beaten her and after gagging her mouth, committed rape upon her and thereafter fled away towards Gondpara. She came back to her house and informed the incident to her parents. Since it was late night and there was no facility of conveyance, she came to lodge report in the morning. The FIR, Ex.P/3 was registered against unknown person for the offence under Sections 376 IPC. The victim was sent for her medical examination to Govt. BDM Hospital, Champa, where she was medically examined by PW-7 Dr. Anita Shrivastava, who gave her report Ex.P/11. While examining she found the hymen of victim ruptured and there was bleeding in her private part. She opinion that forcible attempt of sexual intercourse may have been done. 3. Two slides of vaginal swab of victim was prepared, sealed and handed over to the police for its chemical examination. The birth certificate of victim was seized vide seizure memo Ex.P/2. Copy of birth certificate is Ex.P/10-C. Spot Map Ex.P/5 was prepared by the police whereas Ex.P/6 by the Patwari. The police also seized school register from Govt. Girls Primary School, Kurda with respect to date of birth of victim and after retaining attested true copy of the same, the original was returned back. During investigation, the appellant was arrested on 10.08.2017 and he too was sent for his medical examination to Govt. BDM Hospital Champa where he was medically examined by the doctor who found him capable to perform sexual intercourse. The medical report of the appellant have been admitted by him vide order dated 30.09.2019 and then it has been exhibited as Ex.P/28-A. The 3 appellant was put to Test Identification Parade (in short, TIP) which was conducted by the Tehsildar-cum-Executive Magistrate, Champa. In the said TIP the victim has duly identified the appellant and Identification memo Ex.P/7 was prepared. Vaginal slide of victim, her pubic hair and her underwear were sent for chemical examination to regional FSL Bilaspur. 4. The statement of witnesses were recorded under Section 161 CrPC. The statement of victim under Section 164 CrPC was also recorded and after completion of usual investigation charge sheet was filed before the trial court for the offence under Section 376, 323 IPC and Section 4 of POCSO Act. The trial court framed charge for the offence under Section 4 of POCSO Act and in alternative Section 376 IPC. The appellant abjured his guilt and claimed trial. 5. To prove the guilt of accused, the prosecution has examined 11 witnesses. The statement of accused under Section 313 CrPC was 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 Trial Court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence this appeal. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of the prosecution witnesses which cannot be made basis to convict him for the alleged offence. There is no cogent and clinching evidence with respect to age of the victim so as to determine that she was minor on 4 the date of incident. The birth certificate, Ex.P/10-C, relied upon by the prosecution was issued on 06.08.2015 which is after about 11 years of birth of victim. No ossification test report has been produced by the prosecution to determine the age of victim. The appellant was not named in the FIR. He has been subsequently arrested and his name has been mentioned in the final report. No external injuries were found on the body of victim. Therefore, no offence has been made out against the appellant and he is entitled for acquittal. 8. On the other hand, the counsel for the State opposes the submissions made by the counsel for the appellant and have submitted that there is ample evidence against the appellant to convict him for the alleged office. There is overwhelming evidence against the appellant that he committed rape upon the victim. The age of victim has been proved by her birth certificate which is the clinching piece of evidence with respect to her age. Hymen of victim was ruptured and bleeding was present which confirms the act of appellant that he committed rape upon her. In TIP conducted by the Tehsildar, the victim has duly identified the appellant as offender. From the evidence of victim as well as other evidence, the involvement of appellant has duly been proved by the prosecution which has rightly been considered by the trial court and the appeal being sans merit deserves to be dismissed. 9. I have heard the counsel for the parties and perused the records of the case. 10. The first and foremost question arises for consideration would be the age of victim as to whether on the date of incident she was minor not not. 5 11. The prosecution has mainly relied upon document Ex.P/10-C which is birth register and birth certificate of the victim which has been proved by PW-4, Jamuna Singh Netam, Panchayat Secretary of Gram Panchayat Kurda. He has stated in his evidence that by the order passed by Executive Magistrate, Champa, dated 22.07.2015, he recorded date of birth of the victim in the birth register on 27.07.2015. The date of birth of victim was recorded as 15.03.2004 at serial No.67 in the said register. The original birth register kept in the Gram Panchayat is Ex.P/10 and its attested true copy is Ex.P/10-C. In cross examination, he has stated that after birth of a child, within 21 days, his/her birth are to be registered in the birth register of Gram Panchayat. He voluntarily states that after 21 days, date of birth of a child is to be recorded by the order of executive magistrate. 12. PW-2, the victim, have stated in her evidence that her date of birth is 15.03.2003. In cross examination, the date of birth disclosed by the victim was not challenged and even not a single question were asked with respect to her date of birth or age. 13. PW-1, is the father of victim, who have stated that he could not remember her date of birth but victim was aged about 14 years. In cross examination he states that he got his daughter admitted in the school and he denied that in the school he got recorded her date of birth on assumption. 14. PW-3, is the mother of victim, who have stated that she could not remember date of birth of her daughter, but she was born in the year, 2004. She too has not been cross examined with respect to age or date of birth of her daughter. 6 15. From these pieces of evidence with respect to age and date of birth of victim, it appears that date of birth of victim has been recorded in the birth register as well as birth certificate as 15.03.2004, however, her date of birth recorded in school register is 15.03.2003. PW-7, Dr. Anita Shrivastava, who medically examined the victim, have stated that she medically examined the victim on 24.07.2017 who was aged about 13 years. The doctor has also not been cross examined on the point of age of victim. 16. From the evidence of PW-2, victim, PW-4 as well as PW-1 & PW-3 her parents, birth register, birth certificate and in school record although two different year of her birth is reflect i.e. 15.03.2003 and 15.03.2004, but the fact remains that the victim was minor and less than 18 years of age. Merely there was some discrepancy in the year of her birth does not affect the case of prosecution because birth certificate Ex.P/10-C reflects her date of birth as 15.03.2004. The said birth certificate was issued by the registering authority from the office of Registrar, Birth and Death, which is an extract of official record maintained in discharge of official duty and is admissible under Section 35 of the Indian Evidence Act. Therefore, it cannot be said that the prosecution could not establish the fact that victim was minor on the date of incident. From the evidence it is clearly proved that the victim was minor and less than 18 years of age on the date of incident. 17. So far as offence of rape is concerned, I again examine the evidence of victim PW-2. She has stated in her evidence that on the date of incident when she had gone to answer the nature’s call near canal, the appellant advised her not to go canal side as there was a Snake. He asked to accompany him saying that he too is going towards canal and 7 thereafter he caught hold her hand, gagged her mouth, beaten and committed rape upon her and thereafter went towards Gondpara. He allured her by giving money, but she returned back to her house and informed her parents and on the next day she lodged the report. In cross examination, she admits that on the date when she lodged report, she was not in knowledge of the name of appellant and therefore she could not mention his name in the FIR. She further admits that on the day when she lodged report, the police persons had detained 3-4 boys the police station and on the next day when they had gone to police station, they saw the appellant there. She identified the appellant in TIP conducted by the Tehsildar. She remain firm in saying that on the date of incident the appellant committed rape upon her. 18. PW-1 & PW-3, the father and mother of victim, have deposed that on the date of incident the victim came back to their house weeping and informed that a boy who was wearing Red coloured T-shirt and half pant have beaten and committed rape upon her. In cross examination, both of them remain firm in saying that when their daughter came back to house, she informed about the incident. 19. PW-5, Saraswati Banjare, who is Tehsildar and conducted the TIP, have stated in her evidence that on 09.08.2017 she conducted TIP at Tehsil office Champa. The victim duly identified the appellant and she prepared the identification memo Ex.P/7. In her cross examination only one line suggestion was given to this witness that she neither conducted TIP nor prepared the identification memo Ex.P/7 and she prepared the TIP memo at the instance of police, which she denied. 8 20. From the evidence of PW-5 also it has duly been proved that the appellant was identified by the victim in TIP and once the victim duly identified the appellant as offender and duly identified in the TIP, his involvement in the offence in question stands duly proved. The said TIP have been supported by PW-12 who is the witness of TIP and identification memo Ex.P/7. Even in his cross examination, he duly supported the prosecution’s case. 21. PW-7, Dr. Anita Shrivastava, who medically examined the victim on 24.07.2017 found the hymen of victim ruptured and bleeding present. She opined that victim was suffered by forcible sexual intercourse. In cross examination, nothing could be extracted by defence from this witness so that evidence of this witness can be disbelieved or it can be presumed that victim was not suffered by any sexual intercourse. 22. From the aforesaid evidences the involvement of appellant has duly been proved by the prosecution beyond any reasonable doubt that on the date of incident he committed the offence of rape with the victim for which the trial court has rightly convicted and sentenced him, in which I do not find any good ground to interfere in the conviction and sentence passed by the trial court. 23. In the result, the appeal fails and is hereby dismissed. The appellant is reported to be in jail since 10.08.2017. He shall undergo the entire sentence awarded by the trial court. He is entitled for set off of his undergone period. 24. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this court by preferring 9 an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 25. The records of the case 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 inder