Bhagwat Adil Vs State of Chhattisgarh

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HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.1357 of 2023

Bhagwat Adil S/o Devcharan Adil, Aged about 40 years, R/o Neurushe, Police Station, Nandghat, District Bemetara, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through the Police Station, City Kotwali, District Mungeli, Chhattisgarh.

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---- Respondent For Appellant : Shri Ashwin Panickar, Advocate. For State : Shri Wasim Miyan, Panel Lawyer.

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Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J

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Judgment Reserved on 20.12.2023 Judgment Delivered on 03.01.2024

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Per, Ravindra Kumar Agrawal, J.

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1. This criminal appeal has been preferred by the appellant under section 374 (2) of the Criminal Procedure Code against the impugned judgement dated 20.01.2023 passed by learned Special Judge (FTSC) (Protection of Children from Sexual Offences Act, 2012) Mungeli, District Mungeli, in Special Criminal Case No. 39/2021, whereby the appellant has been convicted and sentenced in the following manner:-

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S.No.	Conviction	Sentence
1	U/s 363 IPC	R.I. for 5 years with fine of Rs. 1000/-, in default of payment of fine further S.I. for 02 months.
2	U/s 366-A IPC	R.I. for 5 years with fine of Rs.1000/-, in default of payment of fine further S.I. for 02 months.
3	U/s 6 of POCSO Act	R.I. for 20 years with fine of Rs.2000/-, in default ofpayment of

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fine, further S.I. for 2 months. All the sentences were directed to run concurrently.

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Since maximum sentence under section 6 of the POCSO Act has been awarded, no separate sentence under Section 376(2)(n) has been awarded by the learned Trial Court.

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2. The case of the prosecution in brief is that on 17-06-2021, the father of the prosecutrix has lodged a written report to the police station City Kotwali Mungeli that he is residing at Ghutheli, Police Station Mungeli. The prosecutrix is his elder daughter who is aged about 14 years and her date of birth is 03-08-2007. 15 days prior to 17.07.2021, one Bhagat Aadil of village Neu Rushe came to his house to see the prosecutrix for the purposes of marriage, but refused to marry with his daughter because the girl was only 14 years old. On 15-07-2021 at about 01.00 in the night when he woke up for answering the call of nature, then he saw that the prosecutrix is not in his house. He searched her in nearby places and about 03.00 o’clock in the night, he received a telephonic call in his mobile phone from the police outpost Damapur that his daughter is in police outpost. He went to police outpost Damapur and taken back his daughter with him. On query being made, she disclosed that Bhagwat Adil of village Neu Rushe had taken her on the pretext of marriage to his village by his motorcycle and in his grocery shop he has committed rape upon her, and thereafter in the

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night itself, she was being taken to Bholwapara by his motorcycle and on the way again he committed rape upon her and on the midway, when he saw the police persons, he fled away and left her on the way. Thereafter, he came to police station to lodge the report along with his daughter.

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3. On the basis of written report lodged by the father of the prosecutrix, the police has register the F.I.R. (Ex. P-11) on 1707-2021 under Sections 363, 366, 376 of I.P.C. and Sections 4, 6 of the POCSO Act, against the appellant.

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4. Spot map Ex. P-2 was prepared by the police in presence of the witnesses. The prosecutrix was sent for medical examination to the District Hospital Mungeli where PW-4 Dr. Neelima Singh has examined her and gave her report Ex. P-10. During her examination, the doctor found no any visible external injury on her private part and no any struggling mark. Hymen was ruptured and healing. She opined that sexual intercourse might have been done. Two slides of vaginal swab of the prosecutrix were prepared and sent for its FSL examination. The doctor has advised for Radiological opinion and consultation for age determination. On 17-07-2021, the primary school certificate of the prosecutrix was seized by the police vide Ex. P-13. The slides prepared by the doctor, pubic hair, under garments of the prosecutrix was also seized vide Ex. P14. Statement under section 164 of CrPC of the prosecutrix has been recorded on 20-07-2021. On 16-09-2021, the school admission and

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discharge register from Govt. Primary School. Ghutheli, with respect to date of birth of the prosecutrix has been seized by the police vide Ex. P-7. The true copy of the entry relates to the prosecutrix’s admission containing her date of birth (Ex. P-8C) was retained by the police and original one was returned to School. According to school admission and discharge register, date of birth of prosecutrix is mentioned as 03-08-2007. The appellant was arrested on 27-07-2021 and he too was sent for his medical examination to District Hospital, Mungeli, where Dr. S. P. Baghel, P.W. 7 has examined him and gave his report Ex. P-18. According to medical report, the appellant was found to be capable for sexual intercourse. The underwear of the appellant was seized vide Ex. P-20 and a TVS moped has also been seized from him vide Ex. P-21. After completion of investigation, the police has filed charge sheet against the appellant before the court of learned Special Judge (POCSO Act), Mungeli, for the offences under Sections 363, 366, 376 of I.P.C. and Section 4, 6 of POCSO Act.

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5. On 23-09-2021, the learned Trial Court has framed charges under Sections 363, 366-A, 376(2)(n) of I.P.C. and Section 6 of POCSO Act. The appellant abjured his guilt and plead innocence and claimed trial.

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6. In order to prove the charges against the appellant, the prosecution has examined as many as 11 witnesses. The statement under Section 313 of Cr.P.C of the appellant was also

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recorded in which he denied the material appearing against him and plead innocence.

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7. After considering and appreciating the evidence available on record, the learned trial Court has convicted the appellant and sentenced him as mentioned in para 1 of this judgement. Hence, this appeal.

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8. Learned counsel for the appellant would argue that the appellant is innocent and has falsely been implicated in the offence. No offence is made out against the appellant as alleged. The prosecution has failed to prove its case beyond reasonable doubt. 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 examination of the author of the school admission and discharge register, the same cannot be taken into consideration for determination of the age of the prosecutrix. No any Kotwari register or ossification report are produced by the prosecution to determine the actual age of the prosecutrix that on the date of incident she was below 18 years of age. It is further argued by the learned counsel for the appellant that the prosecutrix and the appellant were having love affair and she herself accompanied the appellant. The prosecutrix was fully grown up girl and was a consenting party. No complaint has been made by her to anyone regarding forceful sexual intercourse, or any false promise of marriage. Hence, the offence of IPC and

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POCSO Act are not made out against the appellant and he is entitled for acquittal.

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9. 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-8C, which contains the date of birth of the prosecutrix as 03-08-2007. The school admission and discharge register is the admissible evidence to determine the age of the prosecutrix which has been proved by the incharge Head Mistress Shashi Gupta (P.W. 3). In MLC report of the prosecutrix, the doctor has opined that the sexual intercourse might have taken place. 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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10. We have heard the learned counsel for the parties and perused the record carefully.

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11. With regard to age of the prosecutrix, the prosecution has mainly relied upon the school admission and discharge register Ex. P-8C and the statement of P.W. 3, Shashi Gupta, who is the incharge Head Mistress of the school. P.W. 3, Shashi Gupta, have stated in her deposition that she is posted at Govt. Primary School, Ghutheli, as in-charge Head Mistress since

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2008 till date. The police has asked for the school admission and discharge register with respect to the prosecutrix’s date of birth who is a victim of rape. On 16-09-2021, the police has seized the school admission and discharge register vide Ex. P- 7. She brought the original register with her in which the date of birth of the prosecutrix is mentioned as 03-08-2007. The attested true copy of the school register is Ex.P-8C. In cross examination, this witness has said that at the time of admission of student in the school, they got Tatima-Form filled up by the parents which contains the details of the student including his/her date of birth. She admits that she has not brought the Tatima-Form of the prosecutrix with her today before the court. She has further admitted that she could not tell the exact date of birth of the prosecutrix. She has stated that the date of birth given by her is based on school register. She further admits that whitener is applied in some part in the school register in the details of the prosecutrix.

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12. The prosecutrix, P.W. 1, have stated in her deposition that she is aged about 14 years. She admits that her parents were searching for groom for her marriage. P.W. 2, the father of the prosecutrix have stated in his deposition that he does not know the date of birth of the prosecutrix, but the prosecutrix is aged about 14 years. In cross examination he stated that he told the age of his daughter on the basis of date of birth mentioned in the Aadhar Card of the prosecutrix. He further admits that when

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he went to prepare Aadhar Card, he has not got prepared the birth certificate of prosecutrix. The mother of the prosecutrix has not been examined. P.W. 6, Sheshnarayan Banjare, is the witness before whom the mark-sheet of class 8^th of the prosecutrix was seized by the police.

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13. The prosecution has relied upon the document of School register of the prosecutrix which is sought to be proved by PW3, Shashi Gupta. The age of the prosecutrix of 14 years, as stated by the prosecutrix and her father, is without any basis. No any birth certificate or Kotwari register has been filed by the prosecution. There is a correction in the school admission and discharge register in respect of the prosecutrix by applying whitener over some part in the register. The Tatima-Form which was filled up at the time of admission of the student by their parents has also not been filed by the prosecution so as to hold that the date of birth of the prosecutrix was correctly recorded as 03-08-2007 on the information given by her parents. P.W. 3 has not said that she is the author of the school admission and discharge register and she has admitted that she could not tell the actual date of birth of the prosecutrix. Although, the completion certificate of primary education of the prosecutrix (Ex. P-5) was seized, but in that certificate also the date of birth is mentioned as 03-08-2007 which is based on school admission and discharge register. There is no clinching evidence available on record to prove that the date of birth of

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the prosecutrix is 03-08-2007. Therefore, it seems that the date of birth of the prosecutrix is mentioned on assumption. The prosecutrix herself has stated that her parents were in search of groom for her marriage which strengthens the case of the appellant that the prosecutrix was not minor on the date of incident. The doctor who examined the prosecutrix have referred for her radiological examination for determination of her age, but the prosecution has not conducted her radiological examination to ascertain the actual age of the prosecutrix.

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14. The relevancy of school admission and discharge register came for hearing before Hon’ble Supreme Court in 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.

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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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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, 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, 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 cannot 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 constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

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16. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh

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& Others , 2022 (8) SCC 602, while considering various

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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 XXXX 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 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

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by Inspector of Police” , 2023 (SCC Online) SC 846, Hon'ble

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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

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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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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

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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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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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18. In the instant case, although the date of birth of the prosecutrix is mentioned in the School admission and discharge register, and on that basis on the date of incident the age of the prosecutrix appears to be below 18 years of age, but as has been observed in the preceding paragraphs that there seems to be material contradictions in respect of age of the prosecutrix and in absence of the material on the basis of which the date of birth of the prosecutrix was mentioned in school register, 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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19. So far as the allegation of rape is concerned, P.W.-1, the prosecutrix have stated in her deposition that she knew the appellant. On the date of incident when she came out from her house to courtyard for answering the call of nature, the appellant came there and gagged her mouth and forcefully taken her by his motorcycle. He taken her to his grocery shop at village Neu Rushe and committed rape upon her. Thereafter in the same night he taken her to village Bholwapara and on the pretext of marriage on the way he again committed rape. After seeing the police persons he left her and fled away. She was being taken to the police station from where the police informed about her daughter and thereafter they came there and lodged the report. She admits in her cross examination that she is residing alongwith her grand-mother. Her father and step mother used to go to earn their livelihood to Raipur. She further admits that when her grand mother and father were searching groom for her, then the name of appellant was suggested by one villager Kunwaria Bai for her groom and thereafter the appellant came to her house to see her for marriage purpose. She admits that on the date of incident her parents were in the house, however, she did not awake them. She has admitted that if she would have shouted, her parents could have awoke but the appellant has gagged her mouth. She further said that she has narrated the incident of gagging her mouth by appellant and if the same is not in her police statement, she could not

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know the reason. She has further admitted that when the appellant has taken her by motorcycle, she has not raised and alarm and has not shouted for help. She further admits that if she would have raised alarm, the persons who were moving around would certainly saved her. She further admits that she herself has not lodged the report against the appellant at the time when the police persons have caught her.

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20. P.W.2, the father of the prosecutrix, have stated in his deposition that on the date of incident he went to bed after having dinner. In the midnight, the police of police station Kunda, has informed about the prosecutrix then in the early morning he went there and asked from the prosecutrix about the incident then she disclosed about the incident. In cross examination, this witness has admitted that in the night, they have not heard any noise or hue or cry of the prosecutrix. He has not lodged any report against the appellant at Damapur Police Station. The written report were lodged by the police persons. He only puts his thumb impression over it. The report was not read over before him.

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21. From the evidence, it appears that a improbable story has been developed by the prosecution that the prosecutrix was being forcefully taken by the appellant and committed forceful sexual intercourse without her will or consent. Had she been taken by the appellant forcefully, she could have raised alarm or resisted by shouting or scuffling with the appellant to save herself. There

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is no sign of struggle on the body of the prosecutrix or even at the place of incident. Forceful taken by a person to the prosecutrix on the motorcycle would not be possible. She could have jumped from the motorcycle or raise her voice and shout for help, but she did not do so. Gagging her mouth by hand and driving motorcycle at the same time would not be possible. There is no sign of any protest at the time of making sexual intercourse with the appellant because no any sign of protest or injuries were found on the body of prosecutrix. It is also mysterious that the appellant was the proposed groom and stranger for her; he came to her house only once alongwith the villager Kunwaria Bai to see her, but after some time she went alongwith appellant without raising any protest that too in the night. The conduct of the prosecutrix shows that she was in relation with the appellant. The manner in which the prosecutrix was taken by the appellant in the night proves the fact that she was not taken by force, rather the prosecutrix herself eloped with the appellant on his motorcycle and thereafter made physical relation with him on her own will and consent.

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22. The prosecution has sent the slides prepared from the vaginal swab of the prosecutrix and her clothes to get it examined by FSL for presence of seman or sperms on the articles, but FSL report has not been submitted by the prosecution.

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23. In view of the forgoing discussions, this court is of the opinion that the prosecutrix was a consenting party and voluntarily went

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along with the appellant on his motorcycle. She has not made any complaint to any person of nearby place and has not shouted for help. Neither she was taken by force nor abducted by the appellant. She herself accompanied the appellant on her own will and consent. It is not a case that the appellant has committed forceful sexual intercourse with the prosecutrix without her will or consent.

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24. 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-A, 376(2)(n) of I.P.C. and section 6 of the POCSO Act are not made out against the appellant.

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25. For the forgoing reasons, the appeal is allowed. The judgement of conviction and order of sentence dated 20-012023 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 27-072021. He be released forthwith, if not required in any other case.

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26. 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 Code of Criminal

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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.

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27. 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.

¶103

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

¶104

inder

Bhagwat Adil v. State of Chhattisgarh

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Bhagwat Adil v. State of Chhattisgarh

Case brief

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