Allowed

Nafees v. State of Chhattisgarh

Chhattisgarh HC29 Jan 2024CRA/1941/2023

Case brief

AI extract

What is this about?

Appeal against conviction under IPC Sections 363, 366, 376(2)(n) and Section 6 POCSO for taking away and sexually assaulting a girl. The High Court found no legally admissible evidence proving she was a minor, as the school register entry lacked foundational proof, and held her conduct showed consent. Conviction set aside; appellant acquitted.

What did the court decide?

Conviction and sentence dated 26.09.2023 set aside; appellant acquitted of all charges and directed to be released forthwith, furnishing bond under Section 437-A CrPC.

Nafees Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.1941 of 2023

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Nafees S/o Abdul Hafiz, aged about 27 years, R/o Ramgarh, PS Janakpur, District MCB, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through Police Station, Janakpur, District Koriya, Chhattisgarh.

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---- Respondent

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For Appellant : Shri Pushkar Sinha, Advocate. For State : Shri Ajay Pandey, Govt. Advocate. For Objector : Shri Ajay Mishra, Advocate.

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Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Judgment on board

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30.01.2024.

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1. This appeal arise out of judgment of conviction and order of sentence dated 26.09.2023 passed by the Additional Sessions Judge FTSC (POCSO Act) Manendragarh, District Koriya, in Special Criminal Case No.44/2021, whereby the appellant has been convicted for the offence under Sections 363, 366, 376(2) (n) IPC and Section 6 of the Protection of Children From Sexual Offences Act, 2012 (in short, the POCSO Act) and sentenced him to undergo RI for 2 years with fine of Rs.500/-, RI for 5 years with fine of Rs.500/- and RI for 10 years with fine of Rs.500/- respectively with default stipulation. Since maximum sentence was awarded under Section 376(2)(n) IPC, no separate sentence has been awarded under Section 6 of the POCSO Act.

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2. Brief facts for consideration of this appeal is that, on 15.04.2017 a report Ex.P/9 was lodged by the Aunt of the prosecutrix PW-4 stating that her niece, resident of village Bhagwanpur, came to her house on 03.04.2017 at Janakpur and from where she returned back to Bhagwanpur on 08.04.2017 at about 9:30 am stating that she is going to her village Bhagwanpur to bring her articles, from where she did not come back. After due search when she made a telephonic call to her friend on 08.04.2017, she disclosed that she is at Bhagwanpur, however when she went to Bhagwanpur, the prosecutrix was missing there and therefore lodged a report. The police registered an offence under Section 363 IPC against unknown person and started investigation. On 17.04.2017 the prosecutrix was recovered from the possession of appellant who were travelling in a Bus. Recovery Panchnama Ex.P/1 was prepared in presence of witnesses. A mobile phone was seized from the possession of prosecutrix vide Ex.P/3. Another mobile phone was also seized vide Ex.P/6. The prosecutrix claimed herself to be a member of Scheduled Tribe community and her social status certificate was also seized vide Ex.P./7. Spot map Ex.P/20 was prepared by the police. The prosecutrix was sent for her medical examination to Govt. Hospital Janakpur where PW-11 Dr. Abhaya Gupta examined her and gave report vide Ex.P/2, according to which, no injuries were found on the body of the

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prosecutrix. Two slides of vaginal swab of the prosecutrix was also prepared and handed it over to the police for its FSL examination. She was referred to higher centre for sexually transmitted disease and its investigation. She was also advised for radiology examination for confirmation of her age. School admission and discharge register with respect to date of birth of the prosecutrix was seized from Govt. Primary School, Kalam Baderi. Attested true copy of the same is Ex.P/13-C in which the date of birth of the prosecutrix is mentioned as 29.09.1999. A declaration/certificate has also been obtained by the police from the said school which is Ex.P/14. Blood sample of the appellant for the purpose of DNA test was collected vide Ex.P/16 and which has been seized vide Ex.P/17. The appellant was arrested on 10.04.2017 and he too was sent for his medical examination to Govt. Hospital Janakpur, where PW10, Dr. Rajeev Kumar Raman has examined him and gave his report Ex. P/18 and opined that the appellant is capable to perform sexual intercourse. Underwear of the appellant was also seized and sent for FSL examination. Slides prepared from the vaginal swab of the prosecutrix as well as her underwear as also the underwear of the appellant were sent for FSL examination to regional FSL Ambikapur from where FSL report Ex.P/37 was received in which the semen and sperms were found on the aforesaid articles. The slides of vaginal swab of

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the prosecutrix and also the blood sample taken from the appellant was sent for DNA report to State FSL, Raipur, from where the DNA report Ex.P/40 was received, according to which, the allele of DNA profile of vaginal swab of the prosecutrix as well as allele of DNA profile of blood sample of the appellant were matched.

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3. The statement of prosecutrix as well as other witnesses were recorded under section 161 of CrPC. The statement under section 164 CrPC of the prosecutrix was also recorded. Call details of the mobile phone used by the appellant as well as the prosecutrix were also obtained. After completion of investigation, the charge sheet was filed on 12.07.2017 for the offence under Sections 363,366,376(2)(n) and 368 IPC, Sections 5,6, 19 and 21 of POCSO Act and under Section 3(1) (xii), 3(2)(v) of the ST & SC Act. The charge sheet was filed against the appellant and another co-accused Firoza. The trial court has framed charges against the appellant for the offence under Sections 363,366,376(2)(n) IPC, Section 6 of the POCSO Act and under Section 3(2)(v) of the ST & SC Act, whereas, the charge under Section 368 IPC, Section 21 of POCSO Act and Section 3(2)(v) of the ST & SC Act have been framed against the co-accused Firoza.

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4. In order to establish the charge against the accused persons, the prosecution has examined 19 witnesses. The statement of

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accused persons were also recorded under section 313 of CrPC in which they denied the material appearing against them and stated that they are innocent and they have been falsely implicated in the case.

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5. After appreciation of the evidence adduced by the prosecution, the learned trial court has acquitted the co-accused Firoza from all the charges, at the same time, convicted the present appellant and sentenced him as mentioned in para 1 of this judgment. Hence this appeal.

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6. Learned counsel for the appellant would argue that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In the absence of examination of the author of the school admission and discharge register, the same can not be taken into consideration for determination of the age of the prosecutrix. No any Kotwari register or ossification report was 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. He would further submit that the prosecutrix being fully grown up girl, was in love affair with the appellant. The prosecutrix was a consenting party and no complaint has been made by her to any one regarding forceful sexual intercourse or any false

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promise of marriage. Had she been forcefully taken by the appellant, she would have immediately raised alarm while traveling from her village up to Kelhari Bus Stand. Even while traveling in Bus she has not raised any alarm or hue and cry and has not made any complaint to any person. She stayed with the appellant from 08.04.2017 to 17.04.2017, but has not made any complaint to any one to the persons of vicinity where she stayed for about 7-8 days. DNA report is only a report about the opinion and even if DNA report is positive, in view of consensual physical relation with the prosecutrix, the offence of rape is not proved. Hence, the offence under IPC and POCSO Act are not made out against the appellant and he is entitled for acquittal.

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7. On the other hand, the learned counsel for the State as well as objector opposes the arguments advanced by the counsel for the appellant and contended 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 shows the date of birth of the prosecutrix to be 29.09.1999. School admission and discharge register is an admissible piece of evidence to determine the age of the prosecutrix. Thus, the appellant is guilty for kidnapping the prosecutrix from her lawful guardianship and committed rape upon her. Therefore, there is no illegality or infirmity in the findings of the learned trial court.

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Since the DNA report is positive, the involvement of appellant in crime in question has been proved that the appellant has made physical relation with the minor prosecutrix and therefore, the prosecution has proved its case beyond reasonable doubt and the impugned judgment of conviction and sentence needs no interference.

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8. I have heard the counsel for the parties and perused the records.

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9. In order to consider the age of the prosecutrix, I have examined the evidence available on record produced by the prosecution. The prosecution has produced attested true copy of the school admission and discharge register, Ex.P/13-C which is sought to be proved by PW-7, Peter Minj who is the Principal of the Primary School Kalam Baderi. He was posted in the said school from 2012 as Principal. He has stated in his deposition that the police has seized the school admission and discharge register from him. In the said register, the date of birth of the prosecutrix is mentioned as 29.09.1999. In cross examination, this witness has stated that the entry made in the said register is not in his handwriting. He could not tell as to who has made entry in the register and on what basis the entry of date of birth has been made. He further admits that he could not tell who got admitted the prosecutrix in the school. From the evidence of PW-7, it appears that this witness is unaware about the fact that as to

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who has made entry in the school register and on what basis the entry has been made.

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10. PW-1, the prosecutrix, have stated that her date of birth is 29.09.1999. In reply to question No.21 of her cross examination she admits that she disclosed her date of birth on the basis of date of birth mentioned in her marksheet. She shown her ignorance as to whether she was having any birth certificate or not. In reply to question No.22, in her cross examination she has stated that her age may be 20 years.

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11. PW-3, the mother of the prosecutrix has not stated anything about the age or date of birth of the prosecutrix in her deposition. She admits that she does not know the date of birth of her children.

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12. PW-5, the father of the prosecutrix, have stated in his deposition that date of birth of her daughter is 29.09.1999. His wife got admitted the prosecutrix in school in class-I. In cross examination he admits presently the age of his daughter is about 24 years. He also admits that he has not prepared birth certificate of the prosecutrix. He admits that he has not registered her birth with the Kotwari Panji.

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13. From the evidence of PW-5, the father of the prosecutrix, it appears that on 04.10.2019 when his deposition was recorded, the prosecutrix was aged about 24 years. The alleged incident is said to have been occurred on 08.03.2017 and thus as per

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evidence of the father of the prosecutrix on the date of incident the prosecutrix was aged about 22 years. He has stated in his deposition that his wife has gone to the school to get her daughter admitted in Class-I in the school. PW-3, the mother of the prosecutrix, who had gone to the school for admission of prosecutrix is not in knowledge of her date of birth, yet her date of birth was recorded in the school register as 29.09.1999. No document was produced at the time of admission in the school regarding her date of birth. When PW-3, mother of the prosecutrix is not in knowledge of her date of birth, then the possibility cannot be ruled out that she has disclosed her date of birth on assumption and the same was recorded in the school register. There is no other evidence available on record like birth certificate, Kotwari register or ossification report. Thus, on the basis of the above stated evidence with respect to the age of the prosecutrix, this court is of the opinion that the trial court has committed an error in holding that the prosecutrix was minor on the date of incident.

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14. In case of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604 , the Hon’ble Supreme Court has held as under :

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“26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant

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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."

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15. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385 , the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined.

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16. In paragraphs 40 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. ……..

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

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& Others, 2022 (8) SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para

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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 subsection (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

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XXXX XXXX XXX

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33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to

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

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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 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

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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 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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19. Reverting to the facts of the present case and on due consideration of the prosecution evidence, we find that no any clinching and legally admissible evidence have been brought by

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the prosecution to prove the fact that the prosecutrix was minor on the date of incident, yet the trial Court has held her minor. Hence, the findings given by the trial Court that on the date of incident the prosecutrix was minor is set aside.

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20. Now the second question would be whether the appellant is guilty for commission of offence of forceful sexual intercourse or not?.

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21. PW-1, the prosecutrix have stated in her deposition that she knew the appellant from his childhood because they belong to same village. The appellant gifted her a mobile phone and they used to talk with each other with that mobile phone. On the date of incident, the appellant called her at Belhari Bus Stand and when she went there through Janakpur Bus Stand, the appellant met with her there and both of them had gone to the house of co-accused Firoza at village Dugla by the Scooty of the appellant. They stayed there in the night and the appellant has made forceful physical relation with her. The appellant kept her in the house of co-accused Firoza till 17.04.2017 and he made repeated forceful sexual intercourse with her. On 17.04.2017 she was being taken by the appellant to Kelhari Bus Stand and sent her to her house at village Ramgarh by Bus. The appellant was also travelling with her in the Bus. Near village Barel the police intercepted and taken them to the police station. In cross examination, she denied love affair with the

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appellant, but had admitted that appellant has gifted her mobile phone and they used to talk. She admits that on 08.04.2017 she left her house by saying that she is going to village Bhagwanpur to bring her articles. She admits that on being called by the appellant, she went there. During her stay at village Dugla in the house of the sister of the appellant she has not informed to her family members about the incident. She admits that the house where she stayed along with appellant belongs to co-accused Firoza. In the said house the husband of co-accused, her children and in laws were also residing. She admits that many passengers were travelling in the said bus, but she did not disclose the incident to anyone. Although, she denied some part of 161 and 164 CrPC statement, but it appears from her evidence that she knew the appellant, she went along with him, stayed with him and has made physical relation with him without any complaint or raising any alarm. Had she been subjected to forceful sexual intercourse, she would have immediately informed the incident to the sister of accused, her family members or any other persons of the same vicinity where they stayed. She did not do so and stayed there for about 7-8 days.

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22. PW-3, the mother of the prosecutrix have stated in her deposition that the prosecutrix has informed her at Janakpur that she was being taken by the appellant and has made his

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wife. She admits that her sister in law have informed her that the prosecutrix was in regular touch with the appellant over mobile phone. When she was missing, they were in search of her and she was found in bus along with appellant. She shown her ignorance that the prosecutrix herself went to the appellant.

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23. PW-5, the father of the prosecutrix, have stated in his deposition that his younger brother has informed him that the prosecutrix has not returned from school and after being search of her, report has been made. Thereafter, he found her in Janakpur police station where she informed him about the incident. This witness is unaware about the fact that the appellant has gifted any mobile phone to his daughter.

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24. PW-4, the Aunt of the prosecutrix have stated in her deposition that on 08.04.2017 the prosecutrix has left her house after saying that she is going to village Bhagwanpur to her friend’s house and thereafter she has not returned and thereafter she has lodged report to the police. During her search, she was found along with appellant and the prosecutrix was recovered from a Bus and then the prosecutrix has informed her about the incident.

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25. PW-11, Dr. Abhaya Gupta has not found any injuries on the body of the prosecutrix and there is no signs of any struggle.

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26. Close scrutiny of the evidence makes it clear that the prosecutrix has not raised any alarm or protest while alleged

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commission of forceful sexual intercourse with her and has not made any complaint to any of the persons of vicinity where she stayed, either the family members of the sister of the appellant or any other persons of the adjoining houses or even the copassengers who were traveling in the said bus. In view of the age as also the conduct of the prosecutrix, this court is of the opinion that the prosecutrix was a consenting party in the act of making physical relation with the appellant.

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27. So far as DNA report is concerned, since the prosecutrix was found in making consensual physical relation with the appellant, the presence of sperms of the appellant in the vaginal swab of the prosecutrix does not have any important role to decide that she was subjected to forceful sexual intercourse, as has already been held that she was in consensual physical relation with the appellant.

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28. 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

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reasonable doubt, which the prosecution has failed to do in the instant case.

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29. For the forgoing reasons, the appeal is allowed . The judgment of conviction and order of sentence dated 26.09.2023 is set aside. The appellant is acquitted from all the charges framed against him. He is reported to be in jail since 26.09.2023. He be released forthwith, if not required in any other case.

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30. Keeping in view the provisions of Section 437-A CrPC, the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

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31. 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.

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Sd/(Ravindra Kumar Agrawal) Judge

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inder

Nafees v. State of Chhattisgarh

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Nafees v. State of Chhattisgarh

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