Chattisgarh High Court
Narendra Sahu vs State Of Chhattisgarh on 14 December, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1119 of 2022
Narendra Sahu S/o Parshottam Sahu Aged About 21 Years R/o Village
Kanaujiyakanpa, Police Station- City Kotwali, Mungeli, District Mungeli,
Chhattisgarh
---- Appellant
Versus
State Of Chhattisgarh Through The Station House Officer, Police
Station- Adim Jati Kalyan Thana, Mungeli, District- Mungeli,
Chhattisgarh
---- Respondent
(Cause-title taken from Case Information System)
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For Appellant : Mr. Awadh Tripathi, Advocate.
For Respondent/State : Mr. H.S. Ahluwalia, Dy. A.G.
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Hon'ble Mr. Ramesh Sinha, Chief Justice Hon'ble Mr. Ravindra Kumar Agrawal, Judge Order on Board Per Ravindra Kumar Agrawal, Judge 14.12.2023 This appeal is arise out of the conviction and sentence dated 06.07.2022 passed by the Special Judge (F.T.S.C.), POCSO Act, Mungeli (C.G.) in Special Criminal Case No.10/2021, whereby the appellant has been convicted for the offence punishable under Sections 363, 366, 376(2)(n) of IPC and Section 6 of POCSO Act and sentenced in the following manner with the direction to run all the jail sentences 2 concurrently :-
CONVICTION SENTENCE
Under Section 363 of IPC R.I. for 5 years and fine of Rs.2,000/- in
default of payment of fine 2 months additional simple imprisonment.
Under Section 366 of IPC R.I. for 5 years and fine of Rs.2,000/- in default of payment of fine 2 months additional simple imprisonment.
Under Section 6 of R.I. for 20 years and fine of Rs.2,000/- in Protection of Children from default of payment of fine 2 months additional Sexual Offences Act, 2012. simple imprisonment.
2. Brief facts of the case are that on 23.09.2020, the father of the prosecutrix has lodged a report to the police with effect that he is residing at Village - Kanojiakanpa alongwith his family. His daughter aged about 14 years, 8 months and 17 days was residing at her maternal grand mother's house at Village - Majhuwapara and studying there. From 15.08.2020, when the sad demise of one of his relative had taken place, since then his daughter was started residing at Village - Guna and occasionally came to his house. Yesterday on 22.08.2020 at about 12:00 in the night his mother-in- law had informed him that at about 7:30 in night they went to sleep and in the night at about 10:00PM when she woke up, she saw that the prosecutrix was not on her bed and after search of her she could not be found. Her whereabouts was not known despite searching from their relatives house and thereafter the report has 3 been lodged. The police has registered the offence under Section 363 of IPC against unknown persons vide Ex.P/5. The spot map Ex.P/6 has been prepared by the police with respect to the age of the prosecutrix. The police has seized School Admission and Discharge Register from New India Higher Secondary School, Jarhabhata, Bilaspur and after obtaining the true copy of the said register Ex.P10(C), the same was returned back to the School and as per the School Admission and Discharge Register, the date of birth of the prosecutrix is 05.01.2006. The police has seized Social Status Certificate which is Ex.P/8, according to which the prosecutrix belongs to Schduled Caste community. The School Register was seized vide Ex.P/11. During the investigation the prosecutrix was recovered on 04.01.2021 from the possession of the appellant and the Recovery Panchnama Ex.P/2 was prepared. The prosecutrix was sent for her medical examination to District Hospital, Mungeli, where Dr. Neha Smriti Lal (PW-8) has examined her and gave her report Ex.P/16, after medical examination, the doctor has mentioned that no injuries on the body of the prosecutrix were found and found her to be habitual sexual intercourse, two slides has been prepared from the viginal swab of the prosecutrix. She advised for her Radiological examination to determine her age. The appellant was arrested on 05.01.2021 and he was also sent for medical examination to District Hospital, 4 Mungeli, where Dr. S.P. Baghel (PW-6) have examined him and gave his report Ex.P/14, whereby the appellant was found capable to perform the sexual intercourse. Statement under Section 164 of CrPC of the prosecutrix was recorded on 06.01.2021. The statement under Section 161 of the witnesses have also been recorded by the police and after completion of investigation, the police has filed charge-sheet under Sections 363, 366, 376/34 of IPC and Sections 4 & 6 of the POCSO Act and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989 against two accused persons, i.e. one is the appellant and another accused Pershottam, S/o. Samodi Sahu.
3. On 15.03.2021, the trial Court has framed charges under Sections 363, 366, 376(2)(n) read with Section 34 of IPC Section 6 of the POCSO Act and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989 against the appellant and Sections 363, 366, 376 read with Section 109 of IPC and Section 6/17 of POCSO Act and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989 against co-accused Pershottam Sahu. The appellant abjured his guilt and plead innocence and claimed trial.
4. In order to establish the charge against the appellant, the prosecution has examined 12 witnesses. The statement of the appellant was also recorded under Section 313 of CrPC, in which 5 he denied material appearing against him and stated that he is innocent and has been falsely implicated in the case. After appreciation of the evidence adduced by the prosecution, learned trial Court has convicted the appellant and sentenced him as mentioned in para 1 of this judgment, however, the trial Court has acquitted the co-accused Pershottam Sahu from all the charges. Hence, this appeal by the appellant.
5. Learned counsel for the appellant has argued that prosecution has failed to prove the case against the appellant beyond reasonable doubt. There is no illegally admissible evidence with regard to the age of the prosecutrix that on the date of the incident, she was minor and less than 18 years of age. No any Kotwari Register or ossification report was produced by the prosecution to determine the actual age of the prosecutrix that on the date of incident, she was below 18 years of age. In absence of examination of the author of the School Admission and Discharge Register, the same cannot be taken into consideration for determination of the age of the prosecutrix. School Admission and Discharge Register is a week type of evidence. No any Kotwari Panji or ossification report was produced by the prosecution to determine the age of the prosecutrix. It is further argued by the learned counsel for the appellant that the statement of the prosecutrix, her parents and Headmaster of the School are not reliable and their statements are 6 inconclusive.
6. Learned counsel for the appellant has further submits that the prosecutrix herself went alongwith the appellant and no alarm has been raised by her while travelling with the appellant from one place to another and also while staying with the appellant at Raipur. She has not informed the house owner that she was forciably taken by the appellant. She has not made any complaint to any person who met with her on the way or at the place where she was residing with the appellant, therefore the alleged offence of IPC and POCSO Act and Atrocities Act are not made out against the appellant and he is entitled for acquittal.
7. On the other hand, learned counsel for the State opposes the arguments made by the learned counsel for the appellant and contended that the prosecutrix was minor and below 18 years of age at the time of incident which is proved by the School Admission and Discharge Register, which contains the date of birth of the prosecutrix as 05.01.2006. School Register is admissible piece of evidence to determine the age of the prosecutrix. Therefore, there is not illegality or infirmity in the findings of the learned trial Court. The prosecutrix was abducted by the appellant and kept away from the local guardianship for a considerable period of time and forcibly conducted sexual intercourse with her and therefore the impugned judgment of conviction and sentence 7 needs no interference.
8. We have heard learned counsel for the parties and peruse the record.
9. In order to consider the age of the prosecutrix, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the School Admission and Discharge Register of the prosecutrix which is sought to be proved by Manisha Rai (PW-5), who was the Principal of the New India Higher Secondary School, Jarhabhata, Bilapsur. She stated in her deposition that police has seized the School Admission and Discharge Register of the School and after retaining the true copy of the register Ex.P10(C), the original register was returned back to her. In the said school register the date of birth of the prosecutrix is mentioned as 05.01.2006. The said register was seized through the seizure memo Ex.P/11, in her cross examination she admits that at the time of admission of the prosecutrix she was not posted there at school. She could not know as on what basis the date of birth of the prosecutrix is mentioned in the school register. She admits that the documents on the basis of which the date of the birth of the prosecutrix was mentioned in the school register she has not brought alongwith her. She has further admitted that at the time of admission in the school what documents were submitted by the parents of the prosecutrix she could not tell. She further admits 8 that in absence of any document which relates to the date of birth of the child, whatever date informed by their parents, the same was entered in the school register. She has also admitted that there is no endorsement about the document upon which the date of birth of the prosecutrix was entered in the school register. PW-1, the mother of the prosecutrix have stated in her deposition that her daughter is aged about 15 years. In her cross-examination she has stated that she could not know the date of birth of her daughter. Her mother (mother of PW-1) has got admitted the prosecutrix in school. She denied that she is not having the birth certificate of the prosecutrix with her. She admits that she has not brought the birth certificate of her daughter today. She could not know as to whether the birth of the prosecutrix were ever recorded in the Kotwari Panji or not and it is her husband who might have been of the knowledge of the same. She could not know as to what document have got prepared by her mother with respect to the date of birth of the prosecutrix. PW-3 the prosecutrix have stated that her date of birth is 05.01.2006. In her cross -examination she has stated that she could not have any Kotwari panji or birth certificate with respect to her date of birth and it is her father who can tell about the same. PW-4, the father of the prosecutrix have stated that he could not know the date of birth of the prosecutrix but at the time of the incident her daughter was aged about 14 years. He has denied 9 that he has not having the birth certificate of the prosecutrix. He has stated that the police has not seized the birth certificate of the prosecutrix from him and he has not brought the birth certificate of the prosecutrix today. He admits that he has got her daughter admitted to school. No any ossification report has been produced by the prosecution although the Dr. Neha S Lal has referred for her ossification report for determination of her age. The investigation officer PW-9 has admitted in her deposition that at the time of recording the FIR the father of the prosecutrix was brought the document relating the date of birth of the prosecutrix but the same has not been seized by him and he has not investigated with respect to date of birth of the prosecutrix and no any Kotwari panji and birth certificate have been produced before him.
10. After considering the entire facts and circumstances of the case, it emerges that the prosecution has failed to produce any cogent and reliable evidence with respect to the age of the prosecutrix.
11. In case of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon'ble Supreme Court has held as under :
"26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and 10 thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."
12. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined.
13. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed 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 the Headmaster. Therefore, it would be admissible in evidence under Section 11 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. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.
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:-
"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 in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, 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 12 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. The Headmaster 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.4 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 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 (2006) 5 SCC 584 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."
14. In case of Rishipal Singh Solanki Vs. State of Uttar 13 Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under :
"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:
33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.
XXXX XXXX XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it.
Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.
33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each 14 case.
33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.
33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.
33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.
33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."
15. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under :
"14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of 15 these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW- 3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:
"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining:
(i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side 16 within the margin of one year."
16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:
"Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference."
16. Reverting to the facts of the case, on due consideration of the prosecution evidence and in the light of the aforesaid judgment of the Hon'ble Supreme Court, we find that no any clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the prosecutrix in minor and less than 18 years of age on the date of incident. Despite that the trial Court in 17 the impugned judgment has held the prosecutrix minor. Accordingly we set aside the findings given by the trial Court that on the date of incident the prosecutrix was minor as the same has not been proved by the prosecution by leading cogent and clinching evidence.
17. So far as the forcefully sexual intercourse by the appellant with the prosecutrix is concerned we have carefully peruse the statements of the prosecutrix (PW-3). The prosecutrix PW-3 has stated in her deposition that the appellant is resident of her village and therefore she knew him. The appellant has taken her to Raipur on the pretext of marriage and he kept her for about 3 months in a room. While staying at Raipur the appellant has made physical relation with her forcefully and when her father came to know, he alongwith the police came there and taken her alongwith them. In cross examination she denied the suggestion made by the learned counsel for the appellant that she expressed her intimacy with the appellant through mobile phone and wanted to marry with him and it is the appellant who tried to explain. He voluntarily said that the appellant has taken her alongwith him to village-Temri and from Temri the appellant taken her to his house. He admits that in the night when the appellant had taken her alongwith him, she has not raised any alarm, She admits that the motorcycle was driven by the appellant and she was not tied with the motorcycle and another 18 person who is sitting behind her is caught hold her. She admits that the fact that another person is also sitting behind her in the motorcycle and caught hold her is disclosed before the police, while recording her police statements and if the same is not in her police statement she could not know the reason. She admits that between Bilaspur to Mungeli the police stations are situated. The appellant has taken her to Bilaspur but she has not shouted for her help at police station Sakri and Bilaspur. The appellant has taken her from Bilaspur to Raipur in which about 2 hours of time has taken. She admits that there are so many vehicles are running at Raipur road and further admits that in between Bilaspur to Raipur while travelling with the appellant she has not raised any alarm to save her from the appellant. She has stated that she could not know the nearby vicinity as to whether any persons are residing or not. She admits that the appellant Narendra was used to go for work while staying at Raipur and during the period when appellant went for his work she has not raised any alarm. When the police has taken her alongwith them, her statement was recorded before the Magistrate which was read over to her and after found it correctly recorded she has signed the statement.
18. At this stage, it would be appropriate to deal with 164 CrPC statement of the prosecutrix Ex. P/4 of the prosecutrix. In her 164 CrPC statement, the prosecutrix has stated that on 22.09.2020 at 19 about 10 - 11 at night she eloped with the appellant and went to Bilaspur, where she performed marriage with the appellant in the temple and stayed at Raipur for about 3 months. During these 3 months both of them have made physical relation. She on her own will eloped with the appellant. She knew him for about 2 and half years and she wants to reside with him. The appellant has never used any force with her and whatever happened in between them is happened with her consent. The recording of 164 CrPC statement of the prosecutrix has been admitted by her in her deposition that her statement was recorded before the Magistrate and after getting it correctly recorded she signed the same.
19. PW-1, the mother of the prosecutrix has stated in her deposition that she has not seen the appellant coming to village- Guna and with whom the prosecutrix eloped. She has admitted that she and the appellant are belongs from a different caste and if both of them would belongs from the same caste, they would have performed marriage in between them.
20. PW-2, is the brother of the prosecutrix who stated in his deposition that if any person would shouted from one room, it will be heard in other room. The sound of motorcycle will also be heard from his room but he has not heard any noise either of motorcycle or any hue and cry of his sister. His sister has also not informed him as to who has taken her.
20
21. PW-4, the father of the prosecutrix has stated that when the prosecutrix was recovered from the possession of the appellant she disclosed that the appellant has taken her alongwith him and made forcefully physical relation with her. He has stated that before the police he disclosed that the appellant has taken his daughter and if in his police statement the name of the appellant is not mentioned, he could not tell the reason. He denied that the prosecutrix was in love affair with the appellant. He admits that at the time of making the police statement he disclosed before the police that the appellant has given a mobile phone to his daughter and the appellant has snatched the mobile after knowing that the prosecutrix has regularly talked to him with the mobile. He further admits that he asked the father of the appellant to explain him because he has given a mobile phone to his daughter. He further admits that while staying with the appellant, the prosecutrix has not asked for her rescue in all those 3 months. He has further stated that at the time recording the statement of the prosecutrix before the Magistrate, there was no pressure upon her.
22. While examining the prosecutrix the doctor has not found any internal or external injuries over the body of the prosecutrix and opined that she is habitual for sexual intercourse and there is no sign of any protest.
23. Close scrutiny of the evidence lead by the prosecution makes it 21 clear that the prosecutrix was a consenting party in making physical relation with the appellant. She has volunteraly gone to Raipur and stayed there on her own will for about 3 months without informing any one in her family. The conduct of the prosecutrix would show that she was entangled with the appellant and engaged in making physical relation consensually. She has not made any complaint to any person of nearby place or even while going to Raipur. Neither she was taken by force nor abducted by the appellant. This is a peculiar case where the evidence on record has clearly made out a case for consensual sex.
24. The version of the prosecutrix commands great respect and acceptability, but if there are some circumstances which caused some doubt in the mind of the Court on the veracity of the prosecutrix evidence, then it will not be safe to rely on the said version of the prosecutrix. There is contradiction and omissions in the statement of the prosecutrix 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 prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though, the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The Prosecution has to bring home from the charges levelled against 22 the appellant beyond reasonable doubt which the prosecution has failed to do in the instant case.
25. Considering the entire facts and circumstances of the case, particularly the evidence with regard to the age and conduct of the prosecutrix we are of the opinion that the prosecutrix was more than 18 years of age at the time of incident. Further she was a consenting party with the appellant in making physical relation with him, therefore in the above facts and circumstances of the case the offences under Section 363, 366, 376(2)(n) of IPC and Section 6 of POCSO Act would not be made out against the appellant. For the foregoing reasons the appeal is allowed. The judgement of conviction and order of sentence dated 06.07.2022 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 05.01.2021. he be released forthwith, if he is not required in any other case.
26. Keeping in view the provisions of Section 437-A CrPC, the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties 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 23 leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
27. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
R. Mandavi