Suraj Ram Vs State of Chhattisgarh

Challenge in this appeal is the judgment of conviction and sentence dated 2802-2023 passed by the learned Special Judge (under the SC/ST Prevention of Attrocities Act, 1989, and POCSO Act)/Additional Sessions Judge (FTC), Jashpur, District Jashpur, in Special (POCSO and SC/ST) Case No. 30/2021, whereby the appellant has been convicted for the offence under Section 363, 366, 376(3) of I.P.C., Section 6 of (Protection of Children from Sexual Offences Act, 2012 (hereinafter called as the “POCSO Act”) and Section 3(2)(v) of Schedule Casts and Scheduled Tribes (Prevention of Attrocities) Act, 1989 (hereinafter called as the “SC/ST Act”), and sentenced him as below with a direction to run all the jail sentences concurrently:-

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Conviction

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Sentence

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Under Section 363 of the IPC	R.I. for 5 years and fine amount of Rs.1000/-, in default of payment of fine, additional R.I. for 3 months,
Under Section 366 of the IPC	R.I. for 5 years and fine amount of Rs.1000/-, in default of payment of fine, additional R.I. for 3 months,
Under Section 6 of POCSO Act, 2012	R.I. for 20 years and fine amount of Rs.1000/-, in default of payment of fine, additional R.I. for 3 months,
Under Section 3(2)(v) of the SC/ST Act	R.I. for life imprisionment and fine of Rs.1000/-, in default of payment of fine, additional R.I. for 3 months

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Since the appellant has been sentenced R.I. for 20 years and fine amount of Rs.1000/-, in default of payment of fine, additional R.I. for 3 months for his conviction under Section 6 of POCSO Act, no separate sentence has been awarded to him under Section 376(3) of the IPC.

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2 . Brief facts of the case are that the P.W. 1, father of the prosecutrix has lodged a missing report Ex. P-1 to the police outpost Manora, Police Station Jashpur, on 18-052021 with the effect that with respect to missing of his minor daughter aged about 13 years, he has already lodged a missing report on 16-12-2020 to the police, and when he get the information that she was at lakhanpur, he brought her back and informed the police. After preparing her recovery panchnama, she was given to supurdnama to her mother and asked by the police to come on 09-04-2021 for recording her statement before the court, but in the evening of 08-04-2021, she again left her house and her whereabouts could not be traced out despite search of her at various places. On the report of the father of the prosecutrix, the police have registered unnumbered F.I.R. (Ex. P-1) against unknown person under Section 363 of I.P.C. and sent the report to the police station Jashpur where numbered F.I.R. Ex. P-12 was recorded and the police have started investigation. During the investigation, the police has recovered the prosecutrix from rented house at village Turrapani, Ambikapur, and recovery panchnama Ex. P-2 was prepared. Spot map Ex. P-4 was prepared by the police and Ex. P-5 was prepared by the Patwari. Social Status Certificate of the

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prosecutrix was seized vide Ex. P-6 and the certificate is Ex. P-7 in which the prosecutrix is shown to be belongs under the ST caste. The prosecutrix was sent for her medical examination to District Hospital, Jashpur, where Dr. Gayatri Ohdar, P.W. 7, has examined her and gave her report Ex. P-17 and P-18 and opined that she was not subjected to forceful sexual intercourse and no definite opinion can be given about recent sexual intercourse. Two slides of her vaginal swab were prepared and handed over to police for its FSL examination. In support of the age of the prosecutrix, the police has seized the school admission and discharge register from Rajeshwar Boys Primary School, Ghaghra, District Jashpur, vide Ex. P-14 in which the date of birth of the prosecutrix is mentioned as 25-08-2007. The attested true copy of the school admission and discharge register is Ex. P-15 C.

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3 . On 20-05-2021, the appellant has been arrested in this case also and arrest memo prepared as Ex. P-18. He too was sent for his medical examination to District Hospital, Jashpur, where Dr. Dhirendra Kumar Agrawal, P.W. 4, has examined him and gave his report vide Ex. P-10 and P-11. According to the medical examination report, the appellant was found to be capable to perform sexual intercourse. The underwear of the prosecutrix, slides of her vaginal swab were sent for FSL examination to Regional FSL, Ambikapur, but no FSL report has been filed in the case. The statement of the prosecutrix under Section 164 Cr.P.C. and statement of the witnesses under Section 161 of Cr.P.C. have been recorded and after completion of investigation, charge sheet has been filed for the offences under Sections 363, 366-A, 376(3), 376(2)(n) of I.P.C., Section 4, 6 of the POCSO Act and Section 3(B)(l) and 3(2)(v) of SC/ST Act.

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4 . The learned trial court has framed charges under Sections 363, 366, 376(3), of IPC, Section 6 of POCSO Act and section 3(2)(v) of the SC/ST Act. The appellant abjured his guilt, plead innocence and claim trial.

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in order to bring home the charge, the prosecution has examined as many as 13 witnesses. The statement under section 313 of CrPC of the appellant was also

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recorded in which he denied the material appears against him and plead innocence and has submitted that he has been falsely implicated in the offence.

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After appreciation of the evidence available on record, the trial court has convicted the appellant and sentenced him as mentioned in para 01 of this judgement. Hence this appeal.

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7 . Learned counsel for the appellant would argue that the appellant is innocent and has been falsely implicated in the offence. No offence is made out against the appellant as alleged. The prosecution has failed to prove their case beyond reasonable doubt. There is no cogent and legally admissible evidence available on the record to show that the prosecutrix was minor and less than 18 years of age on the date of incident. Except school admission and discharge register, no other documents like school kotwari register or birth certificate or even the ossification test report has not been filed by the prosecution so as to determine the age of her, even the author of the school register has not been examined, and therefore the finding recorded by the trial court that on the date of incident the prosecutrix was minor is erroneous. The basis on which her date of birth is recorded in the school admission and discharge register has not been proved by the prosecution, in absence of examination of the author of the said school register the same cannot be taken into consideration to determine the age of the prosecutrix and therefore it would not be safe for the appellant to hold that she was minor on the date of incident. He would further argue that present is the second instance and in first instance she had refused to get her medical examination as she was not complaint about any incident of rape. When she again missing and subsequently recovered, she was being medically examined but no any sign of forceful act of sexual intercourse were found on her body. He would further argue that the prosecutrix was the consenting party and has not raised any alarm while going with the appellant or stayed with him for a considerable period of 4-5 months. While travelling with him by motor-cycle and bus, she has not made any complaint to any one. During stay with him at Jashpur also, she has not made any

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complaint to the person of the vicinity where they were living. She has not protested at the time of alleged offence of making forceful sexual intercourse. No injuries have been found on the body of the prosecutrix. He would further argue that even if any act of sexual relation was being made by the appellant with the prosecutrix, the same was consensual, which does not come under the definition of rape. Hence, the alleged offences of I.P.C., POCSO Act and SC/St Act are not made out against the appellant, and he is entitled for acquittal.

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8 . On the other hand, the learned counsel for the state opposes the arguments advanced by the learned counsel for the appellant and submitted 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, Ex. P-15 C, which contains the date of birth of the prosecutrix as 25-08-2007. The evidence of the prosecutrix need not be required for any corroboration and on the sole testimony of the prosecutrix, the conviction can be made. Therefore, there is no illegality or infirmity in the findings of the learned trial court. The minor prosecutrix was abducted by the appellant and kept away from the lawful guardianship. Therefore, the impugned judgement of conviction and sentence needs no interference.

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9 . We have heard the learned counsel for the parties and perused the record carefully.

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10. With regard to the age of the prosecutrix, the prosecution has mainly relied upon the school admission and discharge register of the prosecutrix, Ex. P-15 C, which is seized by the police from the school and sought to be proved by Eliza Tirki, P.W. 6, who is the Head Mistress of the Rajeshwar Boys Primary School, Ghaghra. She stated in her deposition that she is posted as Head Mistress since 2015 in the school and has brought the original school register with her, and as per the school register, the date of birth of the prosecutrix is mentioned as 25-08-2007. For the reason that learned counsel for the appellant who was representing him before the learned trial Court was not appeared when the P.W.6 was present before the Court for

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recording her evidence. Later on, on 04-03-2022 itself an application was filed by Mr. Sudesh Gupta, Advocate that he has been instructed by the appellant/accused in the case to defend him and the witnesses who appeared on 04-03-2022 and returned back without examination, they may again be called for their examination. The application was allowed on the same day and next date of evidence of P.W.-6 was fixed as 10-03-2022. Thereafter, P.W.-6 could not be served with the summons and she has not appeared for her evidence before the trial Court and thus, her examination was not completed and she has not been called for her cross examination and therefore, her statement in chief can not be accepted as her evidence and the school register produced by her can also not been taken into consideration to determine the age of the prosecutrix. No any other record have been seized by the police and no any person who recorded the date of birth of the prosecutrix in school register, have been examined. No other document like Kotwari register, birth certificate or even ossification test report has been obtained by the police to prove the age of the prosecutrix that on the date of incident, she was minor.

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11. The P.W. 1, father of the prosecutrix have stated in his deposition that the prosecutrix is his younger daughter aged about 13 years and her date of birth is 2808-2007. In his cross examination, he admitted that he has not submitted any document with respect to the date of birth of his daughter in the school at the time of her admission. He further admitted that the persons of the school have entered her date of birth on assumption. He further admits that her date of birth was recorded after reducing 4-5 years in the actual date of birth so that they may get admission in the school. He further admitted that in his case also, the age of his children was recorded after reducing their age. This witness has further stated that the police persons have not seized the mark-sheet or birth certificate of the prosecutrix from him.

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12. The prosecutrix, P.W. 3, have stated in his deposition that she is aged about 13 years and her date of birth is 28-08-2007. She resile from her police statement. She admitted in her cross examination that she herself has not recorded her date of birth in

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school and therefore, she could not tell her actual date of birth. Her date of birth has got recorded in the school by her father.

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13. P.W.2, is the mother of the prosecutrix, who stated in her deposition that the prosecutrix is her daughter and her age is 13-14 years. She has not stated about her date of birth. She also resile from her police statement. The P.W. 7 Dr. Gayathri Ohdar have stated in her deposition that she examined the prosecutrix but she has not advised for her ossification test report for determination of her age. The P.W. 11 K. P. Singh, the investigating officer, who conducted the part of the investigation have stated in his deposition that he has not seized any Kotwari register or birth certificate with respect to the date of birth of the prosecutrix. The best evidence which could be brought by the prosecution to determine the actual age of the prosecutrix i.e. the Kotwari register, birth certificate, ossification test report, has been withheld by the prosecution for the reason best known by them and for that, the presumption can not be drawn against the accused that the prosecutrix was aged about 13 years at the time of alleged incident of kidnapping of the prosecutrix. There is no clinching evidence available on record to prove that the date of birth of the prosecutrix is 28-082007. Therefore, it seems that there is no legally admissible documentary evidence with respect to the date of birth of the prosecutrix so as to hold that on the date of incident she was minor.

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14. In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385 , which is in respect of admissibility of school records of a person, 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

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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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15. 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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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:-

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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 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,

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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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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:-

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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 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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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

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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 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

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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 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.

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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 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

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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 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.

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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.”

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17. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of

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Police, reported in 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 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

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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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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 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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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

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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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17. In the instant case, although the date of birth of the prosecutrix is mentioned in school admission and discharge register as 25-08-2007, and on that basis on the date of incident, the age of the prosecutrix was appears to be below 18 years of age, but as has been observed in preceding paragraphs that the said school register cannot be taken into consideration for want of evidence of its author to prove the same, because the examination of the Head Mistress P.W. 6, Eliza Tirki, has not been completed and no opportunity of cross examination was given to defense, the age of the prosecutrix cannot be determined particularly in absence of any other authentic records and therefore, it would not be safe to hold that the prosecutrix was minor on the date of incident. Therefore, we set aside the findings of the trial court that on the date of incident, the prosecutrix was minor and below 18 years of age.

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18. So far as allegation of rape is concerned, P.W.-3 the prosecutrix, have stated in her deposition that she knew the appellant. One Digambar of her village who is her uncle in relation, have asked her to go to Delhi alongwith her aunt and on that she was ready to go with her. On 11-10-2020, Digambar has send her alongwith the appellant and they went to Lakhanpur. She alone went up to the Dam from where the appellant has taken her to his friend’s house at Dodkachora by his motor-cycle. From where they came to Jashpur bus stand by motor-cycle and ultimately they came to Lakhanpur by bus. They stayed together at Lakhanpur in a rented house where the appellant has committed forceful sexual intercourse with her. They stayed there for

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about 3-4 months and during that period, he committed repeated sexual intercourse with her. Since, she left her house and therefore, her parents have lodged the report to the police and after 1-2 months when they started living at rented house, the police and her parents came there and taken them back. She was being medically examined by the doctor and send her to Vasundhra Hostel. After about one month, she was sent to her parents’ house. In cross examination, the prosecutrix have denied from giving statement to the police that she was subjected to forceful intercourse by the appellant and if it is not there, she could not know the reason. She admits in her cross examination that at Lakhanpur, where they resided in the tenanted house, number of persons were also resided in their adjoining houses. She has not disclosed about the incident to any of the person of the vicinity. The alleged incident of forceful intercourse with her has also not been intimated to her landlord. No complaint has been made to Lakhanpur police station regarding the commission of any offence. She admitted that the appellant has not taken her from her village. She further admitted that Digamber is her uncle in relation and on his instance, she went alongwith the appellant. She has signed the documents Ex. P-8 and P-5 on the instance of the police and she has not read over the documents before signing it. She admitted that her parents are not ready for her marriage with the appellant.

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19. The P.W. 1, father of the prosecutrix have stated in his deposition that he lodged the missing report to the police station and F.I.R. Ex. P-1 was registered by the police. Police persons have searched his daughter and taken him to Ambikapur where he found his daughter living in a tenanted house alongwith the appellant. Thereafter, they taken back her alongwith them and then she was medically examined. She was sent to Vasundhra Hostel and after about one month, she was sent back to his house. In cross examination he stated that when his daughter was found, he went to police station but neither his daughter has disclosed about any incident with her nor he asked her about the incident. He further admitted that the police persons have not taken him anywhere with them.

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20. The P.W. 2, mother of the prosecutrix has stated in her deposition that on 1110-2020, the prosecutrix has left her house and has not returned back and when she could not be found, they have lodged the missing report. She received anonymous telephonic call and said that he is calling from far away. Her daughter have also made telephonic call from different numbers and informed that she is at Delhi. From the telephone number, the police has tressed her and taken her back. In cross examination, she stated that she has not given any statement to the police and she first time disclosed the facts before the court. She admitted that her daughter has not informed about any incident with her. She had not talked with her during the period when she brought by Manora Police and kept at Vasundhra Hostel.

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Dr. Gayatri Ohdar, P.W. 7, have stated in her deposition that she has examined the prosecutrix on 20-05-2021 and she has not found any external or internal injury over the body of prosecutrix during her examination. She prepared the slides of her vaginal swab for its FSL examination. She opined that there was no signs of recent forceful sexual intercourse on her body.

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Till the time when she was taken back by her father, she continued in physical relation with the appellant without making any complaint to anybody, she has not raised any alarm when she was going with the appellant up to Lakhanpur or staying with him at there, which dragged us to draw the conclusion that the prosecutrix was the consenting party in going alongwith the appellant and making physical relation with him and that was the reason she has not disclosed the incident to her parents or to any other person. There is no allegation that at the time of making forceful physical relation with her, she protested in any manner, or she refused for the same. There is no sign of struggle on the body of the prosecutrix. The conduct of the prosecutrix shows that she was in relation with the appellant. The prosecution has sent the slides prepared from the vaginal swab of the prosecutrix to get it examined by FSL for presence of semen or sperms on the articles but there is no FSL report produced by the prosecution.

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In view of the forgoing discussions, this court is of the opinion that prosecutrix was a consenting party in making physical relation with the appellant. She has not made any complaint to any person of nearby place and has not shouted for help. It is not the case that appellant has committed forceful sexual intercourse with the prosecutrix who is not proved to be minor, without her will or consent.

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Considering the entire evidence available on record, the evidence with regard to the age and conduct of the prosecutrix, we are of the opinion that the prosecution has failed to prove that the prosecutrix was less 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 sections 363, 366 and 376(3) of I.P.C. and section 6 of POCSO Act are not made out against the appellant.

¶102

So far as the conviction of the appellant under Section 3(2)(v) of the SC/ST Act is concerned, since, there is no offences of I.P.C. are made out against the appellant and the Section 3(2)(v) of the SC/ST Act provides that whoever, not being a member of a scheduled caste or a scheduled Tribe, commits any offence under the Indian Penal Code, punishable with imprisonment for a term of 10 years or more, shall be punished with impressment for life and with fine. In the instant case, the appellant has not committed any offence of Indian Penal Code and therefore he cannot be convicted or sentenced under the SC/ST Act.

¶103

For the forgoing reasons, the appeal is allowed. The judgement of conviction and order of sentence dated 28-02-2023 passed in Special (POCSO and SC/ST) Case No. 30/2021, is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 21-05-2021. He be released forthwith if not required in any other case.

¶104

Keeping in view the provisions of section 437-A of Cr.P.C., the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the

¶105

18

¶106

Code of Criminal Procedure of some 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 judgement or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

¶107

28. The lower court records along with a copy of this judgement be sent back immediately to the trial court, concerned for compliance and necessary action.

¶108

Sd/Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

¶109

Aadil

Suraj Ram v. State of Chhattisgarh

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Suraj Ram v. State of Chhattisgarh

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