Allowed

Chhotu Kaser v. State of Chhattisgarh

Chhattisgarh HC24 Nov 2024CRA/344/2020

Case brief

AI extract

What is this about?

Appeal against conviction under IPC ss.363, 366, 373(3), POCSO s.4 and SC/ST Act s.3(2)(v) for abducting and raping a minor girl. The court found the age proof unreliable since no one who recorded the birth entry was examined, and the victim's testimony suffered material contradictions and lacked medical corroboration. Convictions were set aside and the appellant acquitted with benefit of doubt.

What did the court decide?

Conviction and sentence dated 13/02/2020 set aside; appellant acquitted of all charges; directed to furnish personal bond of Rs.25,000 with surety under Section 437-A CrPC for six months.

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

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Digitally signed by RAHUL RAHUL JHA JHA Date:2024.11.27 12:44:12 +0530

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2024:CGHC:45980-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment reserved on : 12/11/2024 Judgment delivered on: 25/11/2024

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CRA No. 344 of 2020

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1 - Chhotu Kaser S/o Jaymangal Kaser Aged About 26 Years R/o VillageBisahi Podi, Police Station- Bhatgaon, District- Surajpur, Chhattisgarh, District : Surajpur, Chhattisgarh

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... Appellant

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versus

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1 - State Of Chhattisgarh Through S.H.O., P.S.- Ajk, District- Surajpur, Chhattisgarh, District : Surajpur, Chhattisgarh

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.. Respondents

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For Appellant : Mr. D.K. Gwalre, Advocate For Respondent : Ms. M. Asha, Panel Lawyer

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Hon'ble Smt. Rajani Dubey, Judge

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Hon'ble Shri Bibhu Datta Guru, Judge

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CAV JUDGMENT

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Per Bibhu Datta Guru

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This appeal is directed against the judgment of conviction and order

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of sentence dated 13/02/2020 passed by the Special Judge (SC/ST Act), Surajpur, District- Surajpur (C.G.) in Special Criminal Case No. 06/2019, whereby the appellant has been convicted and sentenced as under:

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Conviction		Sentence
U/s 363 of the IPC	R.I. for 1 i 100/-	year and fine of Rs.
U/s 366 of the IPC	RI for 3 i 100	years and fine of Rs.
U/s 373 (3) of the IPC	RI for 20 i 100/-	years and fine of Rs.
U/s 4 of the Protection of Children from Sexual Offences Act,2012	f RI for 10 i 100/-	years and fine of Rs.
U/s 3 (2) (V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) act, 1989	Life Impr i Rs. 100/-	isonment and fine of

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(i) Facts of the case, in brief, are that the Victim's father (PW1) lodged a written complaint (Ex.P/1) at Police Station- Bhatgaon alleging inter-alia that on 07/02/2019 at about 06-07 pm, the Victim had gone to shop in the village for bringing some goods, but she did not return. Searches were made in the surrounding area, but she was not found anywhere. On 10/02/2019, at about 10:00 pm, the Victim (PW2) returned home and told that on 07/02/2019, at 06:00 pm, when she was going to the shop to buy some goods, the appellant met her on the way near the bamboo bush and after alluring her to marry, took her to Mahan-1 mine and raped her forcibly.

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(ii) On the basis of the said report, FIR (Ex.P/2) was registered against the appellant. After obtaining the consent of the victim and her father (Ex.P/3), the victim was medically examined. Certificates regarding her caste & age were seized and other seizure proceedings were carried out. The statement of the victim was recorded in the Magistrate Court under Section 164 Cr.P.C. The police and the patwari prepared the spot map of the crime scene separately. The appellant was arrested and his medical examination was done. The statements of the victim and other witnesses were recorded by the police. The seized items were sent to the Forensic Science Laboratory, Ambikapur for chemical examination. After complete investigation, a charge sheet was filed against the accused in special court.

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(iii) In order to bring home the above-stated offence, the prosecution examined as many as 17 witnesses and exhibited 17 documents Exs.P-1 to Ex.P-17 and Articles A1, B1C and B2. The appellant was examined under section 313 of Cr.P.C. in which he told that he has not committed any offence, he is innocent and he has been falsely implicated in this case. In his support, he has examined Saheba Kumar (DW1) and Chameli Painkra (DW2) as defence witnesses. (iv) After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in opening

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paragraph of this judgment. Hence this appeal.

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Learned counsel for the appellant would submit that the appellant has been falsely implicated in the present case. The prosecution has miserably failed to prove the age of the victim to be below 18 years. It is submitted that the entire incident is highly doubtful. The statement of the Victim (PW2) does not inspire confidence as it suffers from material improbability, improvements and it is not corroborated in material particulars provided by herself. There are material contradictions and omissions in the statement of the witnesses, therefore, the conviction of the appellant is bad in law and he should be acquitted of the charges.

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On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the statement of the Victim and other witnesses are fully reliable. There are sufficient evidence available on record to hold the appellant guilty for the alleged offence and the learned trial Court has absolutely justified in passing the judgment of conviction and sentence against the appellant which does not require for any interference.

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

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The first and foremost question arose for the consideration would be whether the Victim (PW2) was minor and less than 18 years of

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age on the date of incident or not.

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In order to consider the age of the Victim (PW2), we have examined the evidence available on record. The prosecution has mainly relied upon Dakhil Kharij Register (Article-B1C), statements of Father (PW1) and Head Master- Kishore Upadhyay (PW3). According to the Dakhil Kharij Register (Article-B1C), the date of birth of the Victim is 10/12/2004.

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The Victim (PW2) has not deposed anything with regard to her age in her examination-in-chief.

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Father (PW1) has deposed in his examination-in-chief that the Victim (PW2) is presently aged about 17 years. He admitted in cross-examination that the Victim was admitted in School by his brother and no documents with regard to proof of age of the Victim was given in the School at the time of her admission.

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Head Master- Kishore Upadhyay (PW3) has deposed in his examination-in-chief that at serial No. 821 of the Dakhil Kharij Register (Article-B1C), the date of birth of the Victim has been mentioned as 10/12/2004. In cross-examination, he admitted that he was not posted in the Primary School, Podi at the time of admission of the Victim. He admitted that he had not made entry in the Dakhil Kharij Register (Article-B1C) with regard to the date of birth of the Victim.

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The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of

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its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385 , 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

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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 can not be relied upon to definitely fix the age of the girl.

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We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this

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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 Victim 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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12. 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 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. If an application is filed before the

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Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

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XXXX XXXX XXX

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33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or 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

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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

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

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

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"14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or

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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 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

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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

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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 threejudge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference."

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Reverting to the facts of the present case, Father (PW1) of the Victim has deposed that the Victim is currently aged about 17 years. He admitted in cross-examination that no birth proof was given at the time of admission of the Victim in the School. Headmaster Kishor Upadhyay (PW3) though has admitted the fact that in the Dakhil Kharij Register, the age of the Victim has been mentioned as 10/12/2004, but in cross-examination, he admitted he was not posted in the School at the time of admission of the Victim and he had not made such entry in the Dakhil Kharij Register. No author has been examined with respect to the fact that on what basis, the date of birth of the Victim has been recorded in the Dakhil Kharij Register (Article-B1C).

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Except for these evidences, no other evidence like Kotwari register or ossification test report have been produced by the prosecution to determine her age that on the date of incident, she was minor or less than 18 years of age. The oral evidence of the

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witnesses PW-1, PW-3 and Dakhil Kharij Register (Article-B1C) are not sufficient to hold that the Victim was minor on the date of incident because of the reason that the author of the recording of birth in Dakhil Kharij Register has not been examined. There is no evidence that on what basis the date of birth of the Victim was recorded in the said register. There is every possibility that the date of birth of the Victim is recorded in the Dakhil Kharij Register on assumption otherwise, the prosecution must have been produced the relevant record on the basis of which her date of birth recorded in the said register. The evidence produced by the prosecution with respect to the age of the Victim are not of that sterling quality which is sufficient to determine the age of the Victim. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor.

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The next question for consideration would be whether the appellant has committed rape upon her or not.

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The Victim (PW2) in her examination-in-chief has stated that on the date of incident at around 6-7 pm, she had gone to the shop for bringing some goods. On the way, she met the appellant and the appellant told her that he will marry her and saying so he took her to his aunt's house in Anuppur. Subsequently, the appellant came to drop her back from Anuppur to Karanji and then she

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called to her home, and her brother came to Karanji to pick her. She deposed that the appellant kept her in Anuppur for one night and returned on Sunday. She further deposed that on the day when the appellant took her from her village, he did bad thing with her. In further paragraph, she deposed that after returning from Annupur, she had narrated the entire incident to her mother. In cross-examination, she deposed that the shop, where she used to take goods, is at a short distance. She admitted that her house is situated in between the Slum. She admitted that there was dispute in between the appellant and her father with regard to govt. land. She also admitted in cross-examination that she had never visited to Annupur. On being put a specific question to her that she had deposed in examination-in-chief that she visited Annupur with the Appellant, whereas, she denied that she never visited to Annupur in her cross-examination, which one is correct, she stated that the appellant took her to her aunt’s house at Annupur.

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Father (PW1) of the Victim has deposed that on the date of incident, when he returned from village Pipari, her wife (PW7) told him that the Victim had gone to shop for bringing goods, but she did not return. He admitted that while the search of the Victim, he had not stated anything to his brother Saheba (PW6) about the Victim. He deposed that while searching the Victim, they came to

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know that the appellant is also missing, then he lodged the report at the police station. After two days, the Victim returned to the house and narrated him that the appellant had taken her to his aunt’s house. He admitted the fact that he did not know, after what saying to the Victim, the appellant had taken her. He further admitted that the Victim had told him that the Appellant had molested her. Subsequently, the written complaint (Ex.P/1) was lodged. In cross-examination, he admitted that the appellant had constructed his house on the govt. land. He admitted that while he was raising his wall, the Sarpanch and Secretary of the Village came to him and requested him to leave some space. He further admitted that where he was raising his wall, adjacent to that, there is land of the appellant. He further admitted that while he was raising his wall, the appellant and his family members were not allowing them to raise the wall and were creating dispute.

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Mother (PW7) of the Victim has deposed in her examination-inchief that on the date of incident, the Victim had gone to shop for bringing some goods, but she did not return. When, father of the Victim came in the night, she told this information to him. Thereafter, the Victim was searched. She deposed that the Victim returned to the house on Sunday. The victim narrated her that the appellant dragged her towards Bisahi mountain and thereafter took her to Bhatgaon and thereafter from train, he took her to his

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aunt’s house. The Victim told her that she did not know in which village, the appellant’s aunt house is situated. She further deposed that the victim had told her that the appellant offered her to marry with her and committed bad things with her. In crossexamination, she admitted that the appellant has constructed their house on the govt. land and there was a dispute in between them for the same. She also admitted that while they were raising their wall, the appellant and his family members had some dispute with them. She also admitted the fact that the land which was occupied by the appellant, was of their possession, however, the appellant claimed their possession over the said land. She further deposed that the appellant and his family members were stating not to raise the wall and on such matter, there was dispute in between them.

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Manoj Kumar Choudhary (PW5) has deposed in his examinationin-chief that on the date of incident, the Victim was missing and she returned on Sunday. The victim in his presence had told that the appellant had taken her to Annupur and except this, nothing was stated by her. He admitted the fact in cross-examination that the Victim had not told that the appellant on the pretext of marriage, had committed forcible sexual intercourse with her.

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Uncle (PW6) of the Victim has deposed in his examination-in-chief that on the date of incident, he was not present at home and

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returned to his house at about 08:00 pm, then he came to know that the Victim is not present at home. She was searched nearby. On the next day, they came to know that the appellant was also not present in the village. He deposed that since it was raining, therefore, they searched the Victim upto a short distance. In the evening they came to know that the Victim is with the Appellant in the Bisahi mountain region. The said thing was told by the children of the village. She was searched there, but when they did not find her, a report was lodged in the police station. This witness further deposed that on 10/02/2019, the Victim after reaching to karanji Railway Station, called over phone and told them to take her. After returning to home, the Victim told them that the appellant had come to karanji Railway station to drop her. The victim told them that the appellant had taken her to her aunt’s house. This witness has admitted in his cross-examination that he had never deposed in his police station that the Victim had told them that the appellant had taken her to her aunt’s house and this fact, first time has been narrated before this Court. He admitted that he had no talk with the Victim over phone and he had not gone to the Railway Station to take the Victim.

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Uttam Paikra (PW9) has deposed in her examination-in-chief that the Victim had called him over phone and told him that she is returning from Annupur and asked him to pickup her. He deposed

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that the Victim had told him that she had gone to aunt’s house of the appellant along with him. He deposed that he along with Saheba, Rajkumar and Manoj had gone to Karanji Railway station to pickup the Victim. At railway station, there was no one present with the Victim. He deposed that he did not know the fact on what saying, the appellant had taken the Victim with him. In crossexamination, this witness has admitted that they went to the Railway Station with two motorcycles, however, he did not remember that whose second motorcycle was of.

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Dr. Suchita Nirmala (PW12) has stated in her examination-in-chief that the Victim was brought before her for medical examination. On examination, she found that there was no injury over the body of the Victim. There was anatomic defect of her vagina and a hole was present. She had prepared vaginal secretion of the Victim. She opined that there was no recent intercourse sign appeared while her examination.

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The FSL report is Ex. P/13. There is human sperm found over Article-A which vaginal slides of the Victim.

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Statement of Victim recorded under Section 164 of the Cr.P.C is Ex.P/15. In the said statement, it has been deposed by her that since the appellant used to like her and wanted to marry her, he after alluring, took her to his aunt’s house and committed rape with her. He kept her with him for about 4 days. Thereafter, he left

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her at Karanji Railway Station and from where she came back to her house.

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On perusal of the statement of the above witnesses, it reveals that there are major contradictions in the statements of the witnesses as Father (PW1) has stated that the Victim herself had returned to the house after two days of the incident which has been corroborated by the Mother (PW7), whereas, the Victim (PW2) herself stated in her cross-examination stated that she stayed with the appellant for about 4 days and she was left by the appellant at Karanji Railway Station, from where she made a phone call to the house and subsequently, her brother came to pick up her. However, the fact stated by the Victim (PW2) that her brother has come to pick up her has been denied by the brother (PW6). He has specifically stated that he had not received any call and had not gone to the Railway Station. Apart from this, there is no other evidence which shows that the Victim was taken away by the appellant except the Victim herself because the Victim was allegedly seen alone by PW9 at karanji Railway Station. Thus, no evidence has been brought on record by the prosecution that the Victim was taken away by the appellant.

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Moreover, from the statement of the Father (PW1), Victim (PW2) and Mother (PW7), it reveals that there was a dispute in between the family of the appellant and the Victim. Though, Father (PW1)

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has tried to deny the fact of dispute, but the Victim (PW2) and Mother (PW7) has admitted in cross-examination that that there was some dispute of govt. land, whereon, the appellant had constructed his house.

¶117

The statement of the Victim (PW2) does not inspire the confidence of this Court because as per the statement of the Victim herself, she admitted that she stayed with the Appellant at her aunt’s house at Annupur, where she did not raise any complaint or did not tell any one that she was forcibly taken up by the appellant. Further, she admitted in cross-examination that her house in the middle of the Slum and the incident is alleged to have happened about 6-7 pm, therefore, it is quite natural that if the Victim was forcefully taken away by the appellant, then anyone of the Vicinity would have definitely seen that, but in the instant case, none of the witness has stated that the appellant was seen dragging the Victim and she was forcibly taken away at Annupur. It is the admission of the victim herself that she had gone to Annupur with the appellant. She was having ample opportunities to raise alarm, which she did not do.

¶118

Even at the railway station, there was no one present, therefore, it cannot be said that the Victim was rescued from the custody of the Appellant. Hence, the conviction under Section 363 & 366 is not sustainable. Apart from this, the conviction under Section 3

¶119

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¶120

(2) (V) of the SC/ST (Prevention of Atrocities) Act, 1989 would not be made out in the case in hand because no one has stated that the act has been committed on the Victim by the appellant knowing that she belongs to caste of SC/ST.

¶121

On closed scrutiny of the above evidence and in the facts and circumstances of the case, it would not be safe for this Court to hold that the appellant has committed rape upon her because the statement of the Victim is contradictory and not corroborated by the Medical evidence brought on record, and such the appellant should not be convicted and the appellant should be given benefit of doubt in absence of the any cogent and clinching evidence.

¶122

The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the Victim. However, there is an important caveat which is that the testimony of the Victim must inspire confidence. Even though the testimony of the Victim 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 leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case.

¶123

For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and the appellant is entitled for benefit of

¶124

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¶125

doubt.

¶126

In the result, the appeal is Allowed. The impugned judgment of conviction and sentence dated 13/02/2020 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is on bail.

¶127

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 one surety 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.

¶128

The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

¶129

Sd/Sd/- (Rajani Dubey) (Bibhu Datta Guru) Judge Judge

¶130

Rahul

Chhotu Kaser v. State of Chhattisgarh

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Chhotu Kaser v. State of Chhattisgarh

Case brief

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