Allowed

Vijay Chandrakar v. the State of Chhattisgarh

Chhattisgarh HC3 Jan 2024CRA/1361/2023

Case brief

AI extract

What is this about?

Appeal against conviction under POCSO Act and IPC 376 for sexual relations with a prosecutrix alleged to be a minor. The High Court found no legally admissible proof she was under 18, held she was a consenting party, set aside the conviction and acquitted the appellant.

What did the court decide?

Conviction and sentence set aside; appellant acquitted of all charges and directed to be released forthwith on furnishing personal bond of Rs.25,000 with two sureties per Section 437-A CrPC.

Vijay Chandrakar Vs the State of… — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

CRA No. 1361 of 2023

¶5

Vijay Chandrakar S/o Krishna Chandrakar, Aged About 24 Years, R/o - Village Godela, P.S. Arjunda, District : Balod, Chhattisgarh

¶6

---- Appellant

¶7

Versus

¶8

The State of Chhattisgarh Through- The S.H.O., P.S. Arjunda, District : Balod, Chhattisgarh

¶9

---- Respondent

¶10

(Cause-title taken from Case Information System)

¶11

-----------------------------------------------------------------------------------------------------------------For Appellant : Mr. Avinash Chand Sahu, Advocate. For Respondent/State : Mr. Wasim Miyan, Panel Lawyer.

¶12

Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on board

¶13

Per Ravindra Kumar Agrawal, J 04-01-2024

¶14

This appeal arise out of the judgment of conviction and order of sentence dated 26-06-2023 passed by the Special Judge {Protection of Children from the Sexual Offences Act, 2012, (in short 'POCSO Act'}, Balod, District Balod (C.G.) in Special Sessions Case No.85/2021 whereby the appellant has been convicted under Section 3/4 of the POCSO Act and Section 376 of the IPC and sentenced in the following manner:-

¶15

Conviction Sentence Under Section 4 of the POCSO Act RI for twenty years and fine of Rs.5000/-, in default of payment of fine, additional RI for one year.

¶16

Conviction of the appellant is also under Section 376 of the IPC. Since maximum sentence has been awarded for the offence punishable under Section 3/4 of the POCSO Act, no separate sentence has been awarded under Section 376 of the IPC.

¶17

Brief facts of the case are that on 17-08-2021, the prosecutrix lodged a written report (Ex.P1) to the PS-Arjunda, District Balod against the accused persons with the

¶18

¶19

allegation that she is resident of Village Godela, District Balod. Four years back, in the year 2016 her mother was employed as maid in the house of the appellant and when her mother was sick she went to the house of the appellant in place of her mother, the appellant asked her to come regularly in place of her mother for doing domestic work and whenever she went to the house of the appellant he proposed her that he likes her, loves her and he cannot live without her. He wanted to marry with her and at that time she refused to marry with the appellant and said that she is minor. On 02.06.2016 at about 12 noon the appellant made physical relation with her on the pretext of marriage and thereafter continued making physical relation with her on the same pretext of marriage. In the year 2021 when her parents were in search of groom for her, then she asked the appellant for marriage, he refused and the appellant and his mother have given threatening to her with dire consequences. She has got married with one Mani Yadav on 03.05.2021 and after her marriage the appellant came to her matrimonial house thrice and threatened her to return back to him or else he will defame her. On 11.07.2021 when she came to her parents' house the appellant called her to his house and when she refused him, at about 12 noon he entered into her parents' house, abused her with filthy language, beat her and has made forceful physical relation with her. The appellant has made physical relation with her from 0206-2016 upto 11-07-2021 on pretext of marriage and he and his mother have threatened her with dire consequences. Therefore, report has been lodged. Based on the report (Ex.-P/1), FIR (Ex.-P/2) has been registered on 17-08-2021 for the offence under Section 366, 376(2)(n), 376(3), 384, 452, 294, 506, 323, 34 of the IPC and Section 4, 5(l), 6 of the POCSO Act against the appellant and his mother. The prosecutrix was sent for her medical examination to community health center Arjunda, District Balod, where Doctor Rashmi Glad (PW-5) has examined her and gave report (Ex.-P/14). The doctor has found no any external or internal injuries on all over body of the prosecutrix and opined that no definite opinion can be given at present and opinion depends upon the report of forensic lab. Two slides of vaginal swab of the prosecutirx was prepared and handed over to the Constable for its FSL examination. Spot map (Ex.-P/3) was prepared by the police. With respect of age of the prosecutrix

¶20

¶21

police has seized school admission and discharge register from the Primary School Godela vide Ex.-P/10 and in the school admission and discharge register date of birth of the prosecutrix is mentioned as 05-06-2001. After retaining attested true copy of the said register, Article A(C), the original register was returned to the school. The accused persons were arrested on 18-08-2021 and the appellant was sent for his medical examination to CHC Arjunda, District Balod where Doctor Suchivrat Pande (PW-4) examined him and given his report (Ex.-P/12) by which the doctor has opined that the patient is physically and mentally healthy and able to perform sexual intercourse at present. The undergarment of the prosecutrix as well as of the appellant have also been seized and the same were also sent for its FSL examination. The FSL report (Ex.-P/24) has been received by the police and according to which, sperms were found on the slides prepared from the vaginal swab of the prosecutrix and her undergarment. The statement under Section 164 of the Cr.P.C. of the prosecutrix was also recorded. Statement under Section 161 of the Cr.P.C. of the prosecutrix as well as the witnesses have been recorded and after completion of the investigation charge sheet was filed on 14-09-2021 before the learned Special Judge (the POCSO Act) Balod for the offence under Section 363, 366, 376(2)(n), 384, 452, 294, 506, 323, 34 of the IPC and Section 4, 5(l) and 6 of the POCSO Act.

¶22

The learned trial Court has framed charges against the appellant under Section 376, 452 and 323 of the IPC and Section 3/4 of the POCSO Act. The charges against co-accused Kalyani Chandrakar (since acquitted) has been framed by the trial Court for the offence under Section 376/109, 506 Part II of the IPC and Section 11/12 of the POCSO Act. The accused persons abjured their guilt, pleaded innocence and claimed trial.

¶23

In order to bring home the charges the prosecution has examined as many as 10 witnesses. The statement of the accused persons under Section 313 of the Cr.P.C. was also recorded, in which they pleaded innocence and have stated that they have been falsely implicated.

¶24

¶25

After appreciation of the evidence available on record, the learned trial Court has acquitted accused Kalyani Chandrakar from all the offences, but has convicted and sentenced the present appellant as mentioned in para 1 of this judgment. Hence, this appeal.

¶26

Learned counsel for the appellant would argue that the appellant is innocent and he has been falsely implicated in the offence. No offence is made out against the appellant as alleged. There is no legally admissible evidence on record with regard to age of the prosecutrix that as on the date of incident she was minor and less than 18 years of age. In absence of examination of author of the school admission and discharge register, the same cannot be taken into consideration for determination of the age of the prosecutrix. The school admission and discharge register is a weak type of evidence. There is no any Kotwari Register or ossification report produced by the prosecution to determine her actual age on the date of incident that she was below 18 years of age. It is further argued by the learned counsel for the appellant that statement of the prosecutrix, her parents, and Head Master of the school are inconclusive and not reliable. Motilal Sahu (PW-2), Head Master of the school is not the author of the school admission and discharge register and therefore, the same is not admissible piece of evidence and cannot be taken into consideration. Learned counsel for the appellant would further argue that the prosecutrix herself was consenting party in the alleged act of physical relation with the appellant and she has not raised any alarm while alleged forceful sexual intercourse with her. The physical relation between the appellant and the prosecutrix was continued upto 2021 and she has not made any complaint to anyone that the appellant is guilty of any forceful sexual intercourse with her. He would further argue that when she was married with another person and started living separate from her husband she asked the appellant to keep her with him and when he refused in doing so the report has been lodged. Therefore, the alleged offences of the IPC and the POCSO Act are not made out against the appellant, hence, he is entitled for acquittal.

¶27

¶28

On the other hand, learned counsel for the State opposes the submissions advanced by the learned counsel for the appellant and submits that the prosecutrix was minor and below 18 years of age at the time of incident, which is proved by the school admission and discharge register, which contains the date of birth of the proscutrix as 05-06-2001 and the first incident of forceful sexual intercourse made by the appellant with the prosecutrix is of 02-06-2016 and thereby on the date of first incident the prosecutrix was minor. It has been further argued that the school admission and discharge register is an admissible piece of evidence by which age of the prosecutrix can be determined. The prosecutrix was being sexually exploited by the appellant upto 2021 and even after her marriage with some other person he has made forceful physical relation with her and threatened her, therefore, conviction and sentence of the appellant needs no interference.

¶29

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

¶30

In order to consider the age of the prosecutrix we have examined the oral as well as documentary evidence available on record produced by the prosecution. The prosecution has relied upon the school admission and discharge register Article A(C) which is sought to be proved by Motilal Sahu (PW-2) who is the Head Master of Government Primary School Godela. He has stated in his deposition that he is posted at Government Primary School Godela since 08-10-2008 as Assistant Teacher and from the year 2014 he is working as In-charge Head Master of the said school. He has received the memo from the police on 09-09-2021 with respect to requisition of the school admission and discharge register relating to the prosecutrix's age, which is Ex.P/9. In compliance of that memo, the police has seized the school admission and discharge register vide Ex.-P/10 and attested true copy of the school admission and discharge register is Article A(C) and he brought the original school register with him. As per the school admission and discharge register, the date of birth of the prosecutrix is 05-06-2001. In cross-examination this witness has admitted that the entry made in the school register is not in his hand-writing. He further admits that on what basis the

¶31

¶32

date of birth of the prosecutrix is mentioned in the said register Article A(C) is not mentioned in the same. He further admits that on what basis the date of birth of the prosecutrix is mentioned in the school register he could not know. He is unaware about the person who has got admitted the prosecutrix in the school. He voluntarily said that at that time he was not posted in the school.

¶33

The prosecutrix (PW-1) has stated in her deposition that her date of birth is 0506-2001, but she further says that at the time of incident she was 18 years of age. When the leading question asked by the special public prosecutor she stated that her date of birth is 05-06-2002. She denied that on the date of incident she had not attained age of 18 years. In cross-examination she sated that at the time of lodging of the report she disclosed the year of her birth as 2002, but she could not know the reason as to why her year of birth is mentioned as 2000 in the FIR Ex.-P/2.

¶34

Mother of the prosecutrix (PW-3) has stated in her deposition that the prosecutrix is her daughter of second number, but she could not know her age and date of birth. When leading question was asked by the special public prosecutor she has admitted that the date of birth of her daughter is 05-06-2002 and at the time of incident was less than 18 years of age. In cross-examination she admitted that she could not tell the date of birth of the prosecutrix and further admitted that on the date of incident she was more than 18 years of age. She has further admitted that no kotwari record or jachcha bachcha card was prepared with respect to proof of the birth of the prosecutrix. She has further admitted that at the time of the admission in the school the age of the prosecutrix was recorded on gesture.

¶35

Father of the prosecutrix (PW-9) has stated that the prosecutrix is his dauthter of second number, presently her age is about 22-23 years, he could not remeber the date of birth of her. After her marriage she went to her matrimonial house and thereadfter she returned back to his house. When the leading question was asked from him, he admitted that the date of birth of the prosecutrix is 05-06-2002. In his cross-examination this witness has admitted that at present the age of the prosecutrix

¶36

¶37

is about 23-24 years. PW-9 has beeen examined on 20-01-2023. He further admits that he does not know the date of birth of his children. He further admits that who has taken the prosecutrix to the school for her admission he does not know. He also admits that he has not given any document which relats to the birth certificate or jachcha bachcha card of the prosecutrix to the police regarding her age. He further admits that as to on what basis date of birth of the prosecutrix is recorded in the school he does not know.

¶38

In the matter of Ravinder Singh Gorkhi Vs State of UP and Others reported in 2006 (5) SCC 584 Hon’ble Supreme Court has observed the following in Para 26:

¶39

“26. In Birad Mal Singhvi v. Anand Purohit [(1988 Supp. SCC 604], this Court held: “To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." (emphasis supplied)

¶40

In case of Alamelu and Another Vs. State, represented by Inspector of Police, reported in 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.

¶41

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

¶42

¶43

“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.

¶44

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:-

¶45

"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."

¶46

In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others,

¶47

2022 (8) SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under :

¶48

¶49

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

¶50

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.

¶51

XXXX XXXX XXX

¶52

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.

¶53

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.

¶54

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.

¶55

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.

¶56

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.

¶57

¶58

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.

¶59

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.

¶60

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.

¶61

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.”

¶62

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

¶63

Police, reported in 2023 (SCC Online) SC 846, Hon’ble Supreme Court has held in para 14 to 17 as under :

¶64

“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,

¶65

¶66

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.

¶67

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:

¶68

“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.”

¶69

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:

¶70

“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

¶71

¶72

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.

¶73

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.”

¶74

Reverting to the facts of the present case, on due consideration of the prosecution evidence, and in light of the aforesaid judgments of Hon’ble Supreme Court, we find that no any clinching and legally admissible evidence has been brought by the prosecution to prove the fact that prosecutrix was minor, and less than 18 years of age on the date of incident. Despite that, the trial Court in the impugned judgment, has held the prosecutrix minor. No any Kotwari Register or ossification test report has been produced by the prosecution so as to corroborate the date of birth mentioned in the school register. The author of the school admission and discharge register has not been examined. Hence, we set aside the finding given by the trial Court that on the date of incident the prosecutrix was minor and less than 18 years of age.

¶75

Now, coming to the second issue of making forcible sexual intercourse with the prosecutrix by the appellant is concerned, we have gone through the evidence carefully.

¶76

The prosecutrix (PW-1) has stated in her deposition that she was residing along with her parents and brother. The incident is of four years back. She was

¶77

¶78

working as maid in the house of the appellant and at that point of time the appellant has made physical relation with her. At the time of incident she completed 18 years of age. Three years back from the date of recording her deposition she has got married with a person who is resident of Gorakapar. After 2-3 years of marriage the appellant came to her matrimonial house and asked her to accompany with him. On being insisted by him, she came to her parents' house along with the appellant. Due to physical relation with the appellant she got pregnant, but subsequentlythe appellant has given some pills by which the pregnancy got aborted. The in-laws have refused to keep her with them due to interference of the appellant in her family life. She admits that the appellant has proposed her that he likes her, loved her and wanted to marry with her. She denied that she refused to accept the proposal of the appellant. She admits that when her family members were in search for groom for her she asked the appellant to marry with her, but the appellant refused. She has got married in the year 2021. In cross-examination she admits that after about six months from the date of starting work in the house of the appellant the incident occured. She admits that when the appellant shows his willingness to marry with her she was also ready to marry with him. She further admits that the appellant has made physical relation with her with her consent and whenever he made physical relation with her the same was made with consent of both of them. She denied that the appellant has not committed marpeet with her. She further stated that she has disclosed before the police that the appellant has pressurized her to come with him from her matrimonial house, her pregancy has got aborted due to the pills given by the appellant, by this reason her family members have refused to keep her with them and it is the appellant who has committed marpeet with her, but if the same is not in her police statement she could not know the reason. She further admits that her in-laws have left her due to her weak health condition and thereafter she has not returned back to her matrimonial house. She further admits that she did not like her husband and still she likes the appellant and still wants to marry with him. She further admits that the accusedpersons have not abused her.

¶79

¶80

Mother (PW-3) of the prosecutrix has stated in her deposition that the prosecutrix is her daughter of second number. The prosecutrix has not given any information regarding the incident. Since two years back she has got married at village Gorakapar and presently she is residing with her and her husband does not want to take her with him. When the leading question was asked from her she has stated that the prosecutrix had not stated her about the forcefull sexual intercourse with her by the appellant while she was working in his house. In cross-examination she further admits that the the prosecutrix has not disclosed about the incident to her and she does not know anything about the incident.

¶81

Father of the prosecutrix, (PW-9) has stated in his deposition that the prosecutrix is his daughter of second number. After marriage she went to her matrimonial house, but subsequently she returned back to him on the assurance given by the appellant, but the appeallnt refused to marry with her and therefore, the report has been lodged. When the leading question has been asked form this witness he has stated that the prosecutrix has informed him that the appellant stated her that he likes her and wants to marry with her. He further stated that the appellant has given threatening to her and allured her to leave her husband and he will keep her. He further stated that the appellant has given a saree to the prosecutrix and when the saree was wearing by the prosecutrix in her matrimonial house before her husband at that time the photo of the appellant was came out from the said saree. In crossexamination this witness has admitted that the the incident which he has stated here is the incident occured after the marriage of the prosecutrix. He further admits that any incident before the marriage, she has not disclosed about the same to him. He admits the fact that the appellant has not abused the prosecutrix before him. He further admits that he has not disclosed anything about the incident to the police. He denied the recording of his police statement Ex.-P/26 and admits that the appellant has not given any threatening to him.

¶82

¶83

Close scrutiny of the evidence makes it clear that prosecutrix is a consenting party in act of making physical relation with the appellant. She continued making physical relation with the appellant from 2016 to 2021 and it is only when her husband and in-laws refused to keep her with them she has lodged the report. Had she been subjected to forceful sexual intercourse against her will or consent and had she been assaulted by the appellant, she would have lodged the report immediately to the police or make complaint to any of the family members or community or other authority, but she did not choose to do so and continued in physical relation with the appellant, which shows that she engaged in physical relation with the appellant.

¶84

The version of the prosecutrix commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the prosecutrix's evidence, then it will not be safe to rely on the said version of the prosecutrix. There is contradiction and omissions in the statement of the prosecutrix and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case.

¶85

Considering the entire facts and circumstances of the case, particularly, the evidence with regard to the age and conduct of the prosecutrix, we are of the opinion that 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 relationship with him. Therefore, in the above facts and circumstances of the case, the offence punishable under Sections 376 of the IPC and Sections 3/4 of the POCSO Act would not be made out against the appellant.

¶86

¶87

For the foregoing reasons, the appeal is allowed . The impugned Judgment of conviction and order of sentence of the appellant is set aside, and the appellant stands acquitted from all the charges. The appellant is reported to be in jail since 1808-2021. He is directed to be released forthwith, if not required in any other case.

¶88

Keeping in view the provisions of Section 437-A of the CrPC, the appellant is directed to furnish a personal bond in terms of Form-45 prescribed in the CrPC 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.

¶89

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.

¶90

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

¶91

Aadil

Vijay Chandrakar v. the State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Vijay Chandrakar v. the State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bharat Lal Sharma Vs Union Of India

Pramod Nayak Vs State of Chhattisgarh

Bhagwat Adil Vs State of Chhattisgarh

Arun Kumar Vs State of Chhattisgarh

Biseshar Vs State of Chhattisgarh

Rajendra Kumar Mishra Vs State of Chhattisgarh