Chattisgarh High Court
Shravan Kumar Sori vs State Of Chhattisgarh on 2 January, 2024
Author: Ramesh Sinha
Bench: Ramesh Sinha
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 679 of 2023
• Shravan Kumar Sori, S/o Sukluram Sori, Aged about 20 years, R/o.
Budra Plotpara, Police Station Maakdi, District : Kondagaon,
Chhattisgarh
---- Appellant
Versus
• State of Chhattisgarh Through Station House Officer, Police
Station, Maakdi, District : Kondagaon, Chhattisgarh
---- Respondent
For Appellant - Ms. K. Tripti Rao, Advocates.
For State/Respondent - Mr. Avinash Singh, Panel Lawyer.
Hon'ble Mr. Ramesh Sinha, Chief Justice
Hon'ble Mr. Ravindra Kumar Agrawal, Judge
Order on Board
Per Ravindra Kumar Agrawal, Judge
02.01.2024
1. This appeal arise out of the judgment of conviction and sentence dated 15.12.2022 passed by the Additional Sessions Judge F.T.S.C. (POCSO), Kondagaon District - Kondagaon in POCSO case No.40/2021, whereby appellant has been convicted for the offence as mentioned below :
CONVICTION SENTENCE Under Section 450 of : R.I. for 5 years and fine of Rs.1000/- in default IPC, 1860 of payment of fine R.I. for one month.
Under Section 376(j) : R.I. for 10 years and fine of Rs.1000/- in of IPC, 1860 default of payment of fine R.I. for one month. Under Section 506 of : R.I. for 01 year and fine of Rs.1000/- in default IPC, 1860 of payment of fine R.I. for one month.
Under Section 4 of : R.I. for 10 years and fine of Rs.1000/- in POCSO Act, 2012 default of payment of fine R.I. for one month. -2- Under Section 3(2)(v) : Life imprisonment and fine of Rs.1000/- in of Scheduled Caste default of payment of fine R.I. for one month. and Scheduled Tribe (All sentences run concurrently) (Prevention of Atrocities) Act, 1989.
2. Brief facts of the case are that on 27.05.2021, a written report Ex.P/1 was lodged by the prosecutrix at Police Station - Maakri, District - Kondagaon against the appellant alleging in it that he is aged about 17 years and residing at Village - Kokodi, Bharripara. In the intervening night of 22-23.05.2021, when she was sleeping, someone has gagged her mouth and caught hold her hands, she woke up and saw that he was the appellant, who came in her house at the time of marriage of her elder sister. She identified him and tried to raise alarm then he given threatening to her to kill her and committed forceful sexual intercourse with her against her will. When he was going out, she shouted then her father came there and the appellant pushed her father and fled away.
3. Based on the written report, the FIR Ex. P/2 was registered against the appellant for the offences under Section 376, 450, 506 of IPC and Section 4 of POCSO Act. Spot Map Ex.P/3 was prepared by the Police. The prosecutrix was sent for her medical examination to District Hospital, Kondagaon, where Dr.Isha Duggad (PW-3) has examined her and gave her report Ex.P/9. While examining the prosecutrix the doctor has not notice any external or internal injuries over the body of the prosecutrix. However, 2 slides of the vaginal swabs of the prosecutrix are prepared and handed it over to the police for F.S.L. examination.
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4. On the basis of the examination of the prosecutrix the Doctor has opined that the prosecutrix might have undergone in an act of intercourse. The Doctor has also referred her radiological examination for age confirmation. A progress report of middle school of the prosecutrix was seized vide Ex.P/5, in which the date of birth of the prosecutrix is mentioned as 11.07.2004. Vide Ex.P/8 the School Admission and Discharge Register with respect to date of birth of the prosecutrix was also seized from Govt. Primary School, Patelpara, Kokodi in which the date of birth of the prosecutrix is mentioned as 06.08.2004. After retaining attested true copy of said School Admission and Discharge Register, the original register was given on hifajatnama to the headmaster of the school. The Patwari PW-4 has also prepared spot map vide Ex.P/11 and a Panchnama Ex.P/10 has also been prepared by her. The glass slide prepared from the vaginal swab of the prosecutrix was sent for FSL examination to Regional FSL, Jagdalpur vide Ex.P/22. From the Regional FSL, Jagdalpur the report dated 30.07.2021 has been received and according to which no spermatozoas were found on the vaginal swab of the prosecutrix.
5. The appellant was arrested on 27.05.2021 and he too was sent for his medical examination to CHC, Maakri where Dr. Devesh Dharat (PW-6) has examined him and gave his report Ex. P/14, by which the Doctor has opined that the accused is able to perform sexual intercourse. Statement under Section 164 of CrPC of the prosecutrix was recorded, statement of the witnesses under Section 161 of CrPC have also been recorded and after completion -4- of the investigation the charge-sheet has been filed on 24.07.2021 before the learned trial Court for the offences under Section 376, 450, 506 of IPC, Section 4 of POCSO Act and Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
6. On 23.08.2021, learned trial Court has framed charges against the appellant under Section 450, 376(j), 506 of IPC, Section 4 of POCSO Act and Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 in short SC/ST Act. The appellant abjured his guilt and plead innocence and claimed trial.
7. In order to bring home the charges the prosecution has examined as many as 12 witnesses. Statement of the appellant under Section 313 of CrPC was recorded in which he denied the material appears against him and plead innocence.
8. After appreciation of oral as well as documentary evidence available on record the learned trial Court has convicted and sentence the appellant as mentioned in para 1 of this judgment. Hence, this appeal.
9. The learned counsel for the appellant would argued that the prosecution has fail to prove the case against the appellant beyond reasonable doubt. The appellant is innocent and has been falsely implicated in the offence. There is no 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 absence of the author of school admission and discharge register the same cannot -5- be taken into consideration to determine the age of the prosecutrix. The school admission and discharge register is a very week type of evidence and there is no any Kotwari register or ossification report produced by the prosecution to determine the actual age of the prosecutrix. It is further argued by the learned counsel for the appellant that the evidence of the prosecutrix, her parents and the headmaster of the school are not reliable and their statements are inconclusive. He would further argued that the prosecutrix herself was willing and consenting party in making physical relation with the appellant and has not raised any alarm while making physical relation with him. The allegation of rape is said to have been committed in the night and it would not be possible for the appellant without the consent of the prosecutrix to enter into her house and to make physical relation with her. She could have raised alarm at the very initiation of the alleged act and if she would have raised any hue or cry, her family members would certainly be woke up and would gathered there but prosecutrix did not do so, therefore, she being a fully grown up major girl, consented in making physical relation with the appellant and therefore, no offence are made out against the appellant as alleged.
10. On the other hand, the learned counsel for the State opposes the submission of the learned counsel for the appellant and submits that the prosecutrix was minor and below the age of 18 years on the date of incident, which is proved by the PW-2 Amar Singh Markam who is the headmaster of the school from where the school admission and discharge register was seized. As per the -6- school admission and discharge register the date of birth of the prosecutrix is 06.08.2004 and therefore, on the date of incident the prosecutrix was minor. She was being subjected to forceful sexual intercourse against her will and presence of the appellant in house of prosecutrix in the night which seen by her father itself proves that the appellant has committed the alleged offence, therefore, the impugned judgment of conviction and sentence need no interference.
11.We have heard the learned counsel for the parties and perused the record.
12. In order to consider the age of the prosecutrix, we have examined the documentary evidence as well as the oral evidence available on record. The prosecution has relied upon the document of the school admission and discharge register in which the date of birth of the prosecutrix is mentioned as 06.08.2004, which is sought to be proved by the PW-2 Amar Singh Markam, who is headmaster of the Primary School, Kokodi. He stated in his deposition that he was the headmaster of primary school, kokodi from 1998 to 2012 and presently he is posted at Middle School, Tadgaon. He came with the original school admission and discharge register which was seized by the police with respect to the date of birth of the prosecutrix. The original school admission and discharge register is Ex.P/26, which has been seized by the police vide Ex.P/8 and the attested true copy of the register is Ex.P/26C. In the said school admission and discharge register the name of the prosecutrix is entered at serial number 204 and her date of birth is mentioned as -7- 06.08.2004.
13. In cross examination he has admitted that he himself has not entered the date of birth of the prosecutrix in the school admission and discharge register. He further admits that no any document in support of the date of birth of the prosecutrix was submitted at the time of her admission in the school. He has further admitted that normally in the village the age of the children were recorded on gesture. From the evidence of PW-2, it appears that this witness is not the author of the school admission and discharge register Ex.P/26. It also appears that one Smt. Supatti Markam was the author of the said school register but she has not been examined by the prosecution. In progress report of Class 8th of the prosecutrix issued by Middle School, Taragaon which is seized by police vide Ex.P/5, the date of birth of prosecutrix is mentioned as 11.07.2004. Thus, there is two different date of birth is available on record. There is no clarification from the prosecution that which date is correct and there is no possibility of any other date of birth.
14. The PW-1 the prosecutrix have stated that her date of birth is 11.07.2004. If her date of birth is 11.07.2004, then why her date of birth mentioned in school register (Ex.P/26C) as 06.08.2004. Therefore both the date of birth of the prosecutrix are not acceptable as the correct date of her birth. There is no other documentary evidence available on record with respect to her date of birth. In cross-examination she admits that her date of birth have got recorded by her father and on the basis of the marksheet she said that her date of birth is 11.07.2004.
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15. PW-2, the father of the prosecutrix have not stated anything about her date of birth. In cross-examination he admits that he has not produced the birth certificate or Jachcha-Bachcha Card of the prosecutrix.
16. PW-5, the mother of the prosecutrix have stated that she could not remember the date of birth of the prosecutrix. She is her daughter of fifth number.
17. PW-9, who is the maternal uncle of the prosecutrix have stated in his deposition that the marksheet of the prosecutrix was seized by the police vide Ex.P/8, in which he is the witness and he is witness of seizure memo Ex.P/5 also. In cross-examination he has admitted that he has signed the seizure memo Ex.P/5, Ex.P/6, Ex.P/8, Ex.P/10 & Ex.P/15 at the police station and when he signed those documents, it was not filled up.
18. 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 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."-9-
19. 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.
20. 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 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 -10- 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 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 -11- 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."
21. In case of Rishipal Singh Solanki Vs. State of Uttar 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.-12-
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 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 -13- be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."
22. 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 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 -14- 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 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."
23. Close scrutiny of the evidence and also in view of the aforesaid -15- judgments 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 was minor and less than 18 years of age at the time of alleged incident. Despite that the trial Court in the impugned judgment has held the prosecutrix minor. Hence, we set aside the findings given by the trial Court that on the date of incident the prosecutrix was minor and below 18 years of age.
24. So far as the issue of forcible sexual intercourse by the appellant with the prosecutrix is concerned, we have carefully gone through the statement of the prosecutrix as well as other evidence available on record.
25. The prosecutrix PW-1, have stated in her deposition that she knew the appellant from the time when he came to her house at the time of marriage of her elder sister. They exchanged their mobile numbers and used to talk with each-other. After a few days, the appellant came to her house in the night at about 1:00 AM and made physical relation forcefully with her. She would further said that after making physical relation he threatened her and when he was going then she raised alarm and her father came there. The appellant fled away after pushing her father and in the next day she has lodged the report to the police. In cross-examination she admits that she knew the appellant since last 2-3 years and she went alongwith him on her own free will. She further admits that she used to go the house of the appellant and went alongwith him to Village-Kantagaon and fair at Parchipara. They were made tatoo -16- in their arms in the name of each-other. She admits that she went to Village-Churegaon in a marriage function in which the appellant was also present and her parents have taken her from Village- Churegaon and thereafter report has been lodged against the appellant. She further admits that the appellant did not come to her house in the intervening night of 22&23.05.2021 and he has not committed any rape upon her in that intervening night. She has further admitted that both of them have knew the caste of each- other and they like each-other. She further admits that there is no any restrictions regarding caste of both families. The report against the appellant has been lodged only because of the reason that both of them belongs to different caste. It is also admitted that on the date of incident her father did not come to room. It is also admitted that in the intervening night of 22&23.05.2021, neither the appellant come to her house nor he pushed her father and fled away. As she been protested he must have got some injuries over her body but the doctor has not noticed any external or internal injuries over the body of the porsecutrix.
26. PW-2, father of the prosecutrix have stated in his deposition that at the time of incident when the prosecutrix shouted he went towards the room of her daughter and saw the appellant in naked condition and when he tried to catch him he fled away by pushing him, thereafter, he informed the incident to the Sarpanch and other persons in the morning and lodged the report. In cross-examination he denied the suggestion given by the appellant that no incident was happened on the alleged time of incident.
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27. PW-5, the mother of the prosecutrix have stated in her deposition that she saw the appellant running from her house, she denied to give any statement to the police. In cross-examination she admitted that at the time of incident she was sleeping and therefore she could not tell as to what happened to the prosecutrix.
28. PW-8, the sister of the prosecutrix have stated in her deposition that on the date of incident when the prosecutrix shouted she came out from her room and then her father narrated that he saw the appellant in compromising position with the prosecutrix who gagged her mouth and committed sexual intercourse with her. In cross-examination he admits that she has not seen the appellant in her house on the date of incident. Her sister has also not disclosed any incidence to her.
29. PW-9 the maternal uncle of the prosecutrix is also the here say witness. From the evidence laid by the prosecution, particularly from the evidence of the prosecutrix makes it clear that the prosecutrix was a consenting party with the appellant in making physical relation with her.
30. He admitted that when she has signed the document Ex.P/2 to Ex.P/6, it was blank and she made her statement before the police under the instruction of her parents and police persons and they have said that if she could not have made any statement against the appellant she would also be implicated in police case. She afraid and make statements accordingly. He admits that on the date of incident she attains the marriageable age and her parent were in search for a groom for her. He further admits whenever she -18- went alongwith the appellant, he had not done any wrong with her. He further admits that the fact that the she entangled with the appellant is known by her parents.
31. Close scrutiny of the evidence laid by the prosecution taken us into contradictory situation, firstly whether the appellant was seen by the family members of the prosecutrix in the naked position as stated by her father PW-2 or secondly whether the appellant in-fact went to the room of the prosecutrix in the alleged night and committed forceful sexual intercourse with her or not because the prosecutrix herself has denied that on the date of incident the appellant came to her house and committed forceful sexual intercourse with her. When the prosecutrix herself stated that on the date of incident the appellant has not come in her house and has not committed any sexual intercourse with her, her evidence is entitled for more weightage than the other evidence. She would be in higher pedestal to narrate the incident, because she is said to have been the victim of that alleged incident. If she is saying that the appellant has not come on the alleged date and time of the incident in her house and has not committed any sexual intercourse with her, the same cannot be disbelieved by other evidence who are in the nature of here say evidence. Although her father said that he saw the appellant in naked position the same can be discarded in view of the evidence of the prosecutrix PW-1.
32. 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 -19- 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 prosecution witnesses. 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 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 the charges leveled against the appellant beyond any reasonable doubt which the prosecution has failed to do in the instant case. At least the appellant is entitled for benefit of doubt.
33. Considering the entire facts and circumstances of the case, particularly the evidence with regard to 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, there is a contradictory statement made by the witnesses as to whether he actually entered the house of the prosecutrix and committed forceful sexual intercourse with her or not and has been seen by her father of not and thereby he is entitled for benefit of doubt. In view of the aforesaid discussions, the offences punishment under Section 376(j), 450, 506 of IPC and Section 4 of POCSO Act., are not made out against the appellant. Since the offence under Section 376(j), 450, 506 of IPC are not made out against the appellant, the offence under Section 3(2)(v) of the SC/ST Act is also not made out and the appellant cannot be convicted for the -20- same.
34. For the foregoing reasons the appeal is allowed. The judgment of conviction and order of sentence of the appellant is set aside and the appellant stands acquitted from all the charges. The appellant is reported to be in jail since 27.05.2021, he is directed to be released forthwith if not required in any other case.
35. 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 leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
36. 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
Ravi Mandavi