Allowed

Ashok Kumar Toppo v. State of Chhattisgarh

Chhattisgarh HC7 Dec 2023CRA/204/2023

Case brief

AI extract

What is this about?

The court set aside convictions for kidnapping, confinement, intimidation, rape and a POCSO offence. It held that minority was not proved, found the prosecutrix over eighteen and consenting, and acquitted the appellant of all charges. Immediate release was directed unless required in another case.

What did the court decide?

All convictions and sentences set aside; appellant acquitted of all charges and directed to be released forthwith unless required in another case.

Ashok Kumar Toppo Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 204 of 2023

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Ashok Kumar Toppo S/o Lutan Ram Aged About 27 Year R/o Village Gaghbeera, P.S. Lundra, District Surguja Chhattisgarh

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---- Appellant

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Versus State of Chhattisgarh through Police Station Balrampur, District Balrampur Ramanujganj Chhattisagarh

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---- Respondent

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For Appellant : Mr. Sushil Dubey, Advocate For Respondent/State : Mr. Avinash Singh, P.L.

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board

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07.12.2023

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The appeal arise out of the judgment of conviction and sentence dated 07.12.2022 passed by Additional Sessions Judge, Fast Track Special Court (POCSO ACT) Ramanujganj, District – BalrampurRamanujganj (C.G.) in Special Sessions Trial (POCSO) Case No. 56/2019 whereby the appellant has been convicted and sentenced in the following manner:-

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CONVICTION	SENTENCE	PUNISHMENT IN DEFAULT OF PAYMENT OF FINE
Section 363/34 of IPC	R.I for 5 years with 1000/- fine	One month
Section 342/34 of IPC	R.I for 1 year with 1000/- fine	One month
Section 506 part-II of IPC	R.I For 5 years with 1000/-	One month
Section 376 D of IPC.	No Separate sentence has been awarded.
Section 6 of POCSO Act	R.I for 20 years with 25,000/- fine	Two Months

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Brief facts of the case are that, on 12.10.2019 the father of the prosecutrix has lodged a report to the Outpost Ganesh Mod Police Station- Balrampur with the fact that he is residing at Village Jarhadih along with his family. On 11.10.2019 in the night they have had their dinner and he went to watch orchestra at Ganesh Mod and about 12:30 in the night he came back from there and went to asleep, on 12.10.2019 at about 4:00 A.M. his wife informed him that his daughter is not in her room and she went alongwith her bag, mobile and saree and Aadhar Card then they searched her in their relatives house and neighborhoods, but her whereabouts could not be traced out. He suspect that someone has allured his daughter and taken her alongwith him. The police has registered the offence of 363 of IPC against unknown

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person vide Ex.-P/8. On 14.10.2019 the prosecutrix was left by the appellant at bus stand, Ambikapur. The police has taken her to the outpost situated at bus stand Ambikapur and from where she was sent to the child welfare Committee Sarguja where her statement was recorded vide Ex.-P/5 and P/6 thereafter a recovery panchanam has been prepared on 18.10.2019 vide Ex.-P/11. The prosecutrix was sent for her Medical Examination to District Hospital, Balrampur where Dr. Vineeka Bhagat PW-P/5 has examined her and ga ve her report Ex.P/16. No external or internal injuries were found on the body of the prosecutrix, two slides of her vaginal swab has been prepared which was sent for FSL examination. FSL examination report was obtained by the police in which no seman and sperm have been found on the veginal swab of the prosecutrix and cloths of the prosecutrix and appellant. The School admission and discharge register from Balak Aashrma Primary School, Jarahadeeh was seized vide Ex-P/18 and after retaining a true copy of the relevant part of the School register the original was return back to the school and the attested true copy of the school register is Ex-P/19C in which the date of birth of the

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prosecutrix is mentioned as 12.06.2004. The appellant was arrested on 01.11.2019. On 01.11.2019 the memorandum statement of the appellant was recorded in which he disclosed that the mobile which was given to him by one Shivkumar, he used to talk to the prosecutrix by the said mobile and asked her to come to Ambikapur. On 12.10.2019 when she came to Ambikapur bus stand and called him in the mobile phone, he along with his friend Mansoon Kumar Yadav went there in his motorcycle and taken the prosecutrix alongwith them to the house which was under possession of said Mansoon Kumar Yadav and made physical relation with the prosecutrix and thereafter they left the prosecutrix near the bus stand, Ambikapur and return back to there houses. Thereafter the co-accused Mansoon Yadav has also been arrested by the police on 01.11.2019. Based on the memorandum statement of the appellant one motorcycle and one mobile phone has also been seized from the appellant from his house vide Ex-P/13 the accused persons put for their Test Identification Parade which was conducted by the then Executive Magistrate PW-8 and Test Identification memo has been prepared vide Ex-P/4, Spot map has been

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prepared by the police vide Ex-P9 and after completion of the investigation the charge-sheet was filed before the Additional Sessions Judge, Ramanujganj for Offences under Sections 363, 366, 342, 506, 376-DA of IPC and Section 3/4, 5/6 of POCSO against the accused persons.

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The Trial Court has framed charges under Sections 363, 506 B, 342 of IPC and Section 16/17, Section 6 of POCSO Act and in alternative 376 (i) of IPC against the accused persons. The accused persons have abjured their guilt and pleaded innocence and claimed trial.

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On 06.03.2020, the Additional Charge of Section 376 (D)/34 of IPC has been framed and the earlier charge framed by the trial Court has also been amended as 363/34, 506 B/34, 342/34 and 376(1)/34 of IPC. The amended and added charges have been explained to the accused persons and asked them to re-examined and re-cross examined their witnesses, if they so desire but they did not choose to re-examine or recross examined. On 05.12.2022 the charge of Section 376 (I) of IPC and Section 16/17 of POCSO Act have been deleted by the learned trial Court.

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To bring home the charges the prosecution has examined 8 witnesses. The statement of the accused persons has also recorded under Section 313 of Cr.P.C in which they denied the material appeared against them and stated that they are innocent and have been falsely implicated in the case.

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After appreciation of the evidence available on record the learned trial Court has convicted the appellant and sentenced him and mentioned in para 1 of this judgment however the co-accused Mansoon Kumar Yadav has been acquitted from all the charges by the learned trial Court, hence this appeal by the appellant.

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Learned counsel for the appellant would submit that the prosecution has failed to prove the case against the appellant beyond reasonable doubts, there is no legally admissible evidence with regard to age of the proseuctrix on the date of incident she was minor and less than 18 years of age, in absence of examination of the author of the school admission and discharge register the same can not be taken into consideration for determination of the age of the prosecutrix. School admission and discharge register is a weak type of evidence. No any kotwari register or ossification

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report are produced by the prosecution to determine the actual age of the prosecutrix that on the date of incident she was minor and below 18 years of age. It is further argued by learned counsel for the appellant that the statement of the proseuctrix, her parents and Assistant Teacher of the school are not reliable and inconclusive. Learned counsel for the appellant would further argued that Test Identification Parade conducted by the prosecution has lost its significance because prior to conducting the Test Identification Parade the accused persons where seen by the prosecutrix in the police station and on the instance of the police the prosecutrix has identified the accused persons. No any persons of similar physic were mixed at the time of Test Identification Parade and also their faces were not covered prior to conducting the Test Identification Parade and therefore the same can not be relied for holding guilty of the appellant.

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Learned counsel for the appellant would further argued that the prosecutrix herself went along with the appellant and no alarm has been raised by her, while traveling along with the appellant from one place to another, she has not raised any alarm and has not protest while going with the appellant and

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therefore, the alleged offences of IPC and POCSO Act are not made out against him and he is entitled for acquittal.

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On the other hand learned counsel for the State/respondent opposes the submission advanced on behalf of the appellant and contended that the prosecutrix was minor and below 18 years of age at the time of the incident, which is proved by the school admission and discharge register which contains the date of birth of the prosecutrix as 12.06.2004, the school register is admissible piece of evidence to determine the age of the prosecutrix therefore, there is no illegality or infirmity in the findings of the learned trial Court. The prosecutyrix was abducted by the appellant and he kept away her from her lawful guardianship and forcefully committed sexual intercourse with her, therefore the impugned judgment of conviction and sentence need no interference.

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We have heard learned counsel for the parties and perused the records.

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In order to consider the age of the prosecutrix we have examined the evidence available on records

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produced by the prosecution. The prosecution relied upon the school admission and discharge register ExP19(C) which is sought to be proved by PW-7 Amardeep who is the Assistant Teacher at Primary School Jarahadeeh, who stated in his deposition that he is posted at Primary School Jarahadeeh since 2009. upon being asked by the police he has given the school admission and discharge register of the said Government Girls Primary School, Jarahadeeh which was seized by the police vide Ex-P/18. In the original school admission and discharge register the date of the birth of the prosecutrix is mentioned as 12.06.2004 The said admission register was written by the ex-headmistress Jayshree Rohit and her signature is there in school admission and discharge register Ex.P-19. In cross-examination he admits that the entries made in school register Ex-P/19 has not been made by him, he further admits that as to on what basis the date of birth of the prosecutrix is mentioned he could not tell. He further admits that no any birth certificate was produced with regard to date of birth of the prosecutrix and he voluntary said that a declaration sheet was filled up. He further admit that the said declaration sheet has not been filed in the

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instant case. It is important here that the headmistress Jayshree Rohit has not been examined by the prosecution who is the author of said school register.

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PW-1 the prosecutrix have not stated the date of birth in her deposition she has not stated that on the date of incident she was minor and has not completed 18 years of age. PW-2 the father of the prosecutrix stated that on the date of incident his daughter was aged about 12 years. PW-3 the mother of the prosecutrix have stated that on the date of incident her daughter was aged about 16 years. In her cross examination she admits that normally the villager have got entered age of their children by reducing 2-3 years so that they could be benefited at the time of their services or other purposes. PW-4 who is the uncle of the prosecutrix have stated that at the time of incident his niece was aged about 15 years, he too has admitted the villagers have got entered the age of the their children the reducing their age. He admits that he could not tell the age of the prosectrix.

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Close scrutiny of the evidence available on record makes it clear that the prosecution has not laid any

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cogent and legally admissible evidence to hold that on the date of incident the prosecutrix was less than 18 years of age and was minor. The parents and uncle of the prosecutrix stated different age of her at the time of incident, the author of school admission and discharge register have not been examined although the name of the author of the said register was disclosed by the Assistant Teacher PW-7 but said author has not been examined. The reason best known to the prosecution as to why she had not been examined.

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In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC-

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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

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entry or who gave the date of birth is examined.

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In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under :

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“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.

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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:-

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“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

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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."

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The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2,

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where this Court observed as follows:-

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"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"."

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In our opinion, the aforesaid burden of proof has not been

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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.

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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:-

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"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

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constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.”

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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 :

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“33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

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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.

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XXXX XXXX XXX

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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 subsection (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.

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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.

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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

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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.

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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.

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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.

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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.

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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

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credibility than private documents.

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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, 201 5.”

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17. 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 :

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“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

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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.

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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:

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“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

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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.

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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:

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“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.

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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.”

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Reverting to the facts of the present 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 proved the fact that the prosecutrix was minor and less than 18 years of age on the date of incident. Despite that the trial Court in the impugned judgment 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.

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So far as the Test Identification Parade is concerned the prosecutrix PW-1 stated in her deposition that the police persons have got conducted the Test Identification Parade of the accused persons. In her cross examination she has stated that for conducting the Test Identification Parade the accused persons were brought by the police persons when the accused persons were brought their faces are open. She has signed on the Test Identification memo on the blank form and nothing was written when she has signed

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that. PW-8, Sabab Khan who conducted the Test Identification Parade has stated in his deposition that the police persons have taken the two accused persons for their identification. Total 8 other persons who were playing the football where the Test Identification Parade was to be conducted have been mixed, thereafter, the prosecutrix came there along with her father and the proscutrix have identified the two accused persons, in his cross examination. He admits that the persons who were mixed along with the accused persons were less or more age then the the accused persons at the time when the accused persons brought before them their faces were open. He further admit that the prosecutrix was also been brought by the police persons at the place of identification and at the time when the police persons brought to prosecutrix at the place of identification the faces of the accused persons were not covered. He does not know as to whether before the Test Identification the prosecutrix and the accused persons were sitting together or not.

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The purity of the Test Identification Parade is become doubtful on the fact that before conducting the Test Identification Parade the faces of the accused persons were not covered when they were taken to the place by the police and other persons who mixed for Test Identification

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were of less or more age and not of the similar age of physic. Further, the prosecutrix herself stated that at the time when she signed the Test Identification memo it was blank and nothing was written on that. PW-8 Dhirendra Banjare, who is the investigating officer have stated in para 18 of his deposition that he has sent the memo to the Tehsildar for conducting the test identification parade in which it has been stated that he is sending four persons for test identification parade out of which two were the accused persons and two other suspects. Whereas, the PW-9 (wrongly mentioned as PW-8) Shabab Khan the then Executive Magistrate/Tehsildar has stated in para 3 in his deposition that the police persons have taken two suspects for test identification parade. In view of the above, it would not be safe to rely upon the said Test Identification memo Ex.-P4.

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So far as the issue of forceful sexual intercourse by the appellant with the prosecutrix is concerned we have carefully perused the statement of the prosecutrix PW-1.

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The prosecutrix PW-1 have stated in her deposition that she knew the appellant. In the month of October, 2019, when she annoy from her parents and going to her elder mother’s house and while sitting on the bus stand, the

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accused persons have taken her on their motorcycle and after committing rape upon her they left her near Girls Collage Ambikapur, she made a telephonic call to her teacher and said him that she does not want to return back her home, thereafter her teacher has called the persons from children home and they have taken her to police. The prosecutrix was declared hostile and after that she has stated that she has given the statement under Section 164 of Cr.P.C. and given statement to the police also. In her cross examination she has stated that she has not disclosed the name of the accused in her police statement. In her cross examination she has admitted that the bus stand, Ambikapur is crowded place and so many shops are there and movement of the persons are also there. She admits that when the appellant was taking her on his motorcycle she has not shouted and has not called to anyone. She further admits that if she would have raised the hue and cry the persons would gathered there and would have saved her. While going with the appellant on his motorcycle she has not protested. She has further admitted that she has not made any complaint to the police and traffic police while going with the appellant. She further admitted that when the appellant taken her in the room she has not raised any alarm. She further admits that at the

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time of sexual intercourse she has not raised any alarm. She could have fled away, but she has not flee. She has further admitted that she has not tried to save herself by teeth biting or nails. The prosecutrix has further admitted that she had quarreled with her mother on the issue of mobile phone on 11.10.2019 and thereafter she left her house along with the clothes, bag and mobile phones and she came to the bus stand Ambikapur where the numbers of passengers and police persons are present.

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PW-2 the father of the prosecutrix have stated in her deposition the prosecutrix has not informed him that appellant has committed rape upon her. PW-3 the mother of the prosecutrix has also sated in her deposition that when the prosecutrix returned back to the house she has not informed any thing about the incident, she has also not informed any incident of rape committed by the appellant, from the evidence it appears that the prosecutrix has not raised any alarm while she was being taken by the appellant on his motorcycle. If she was being taken by force by the appellant, she would have raised alarm and if she would have raised alarm the persons present on the bus stand as well as on the way to the house of the appellant they would have gathered and would have saved the proseuctrix. All these are missing in the prosecution case.

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The version of the prosecutrix come on 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 proscutrix evidence, then it will not be safe to rely 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 the conviction can be maintained in the sole testimony of the prosecutrix, however there is an important caveat which is that the testimony of the prosecutrix must inspired confidence. Even though the testimony of the prosecutrix is not required to be corroborated if her statement is not believable, then the accused can not be convicted. The prosecution has to bring home charges leveled against the appellant beyond the reasonable doubt which the prosecution has failed to do in the instant case.

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Considering the entire evidence led by the prosecution 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 offence under Section 363/34, 342/34, 506 part-II, 376 D of IPC and

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Section 6 of POCSO Act are not made out against the appellant.

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For the foregoing reasons the appeal is allowed. The judgment and conviction and order of sentence dated 07.12.2022 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 01.11.2019 he be released forthwith if not required in any other case.

¶112

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.

¶113

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.

¶114

Sd/Sd/-

¶115

( Ravindra Kumar Agrawal ) ( Ramesh Sinha ) Judge Chief Justice

¶116

vaishali

Ashok Kumar Toppo v. State of Chhattisgarh

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Ashok Kumar Toppo v. State of Chhattisgarh

Case brief

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