Poshram Dhruw Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Judgment reserved on 18.01.2024 Judgment delivered on 25.01.2024

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CRA No. 500 of 2023

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Poshram Dhruw S/o Arjun Dhruw Aged About 23 Years R/o Ward No. 03, Village- Mudagaon, Police Station Chhura, District : Gariyaband, Chhattisgarh ---- Appellant

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Versus

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State Of Chhattisgarh, Through Police Station- Chhura, District :Gariyabandh, Chhattisgarh ---- Respondent

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(Cause-title taken from the CIS)

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For Appellant

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For Respondent/State

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: Shri Mohammad Afroz, Advocate

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: Dr Surendra Kumar Dewangan, PL

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

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Per Ravindra Kumar Agrawal, J.

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Challenge in this appeal is to the judgment of conviction and sentence dated 20-02-2023 passed by the learned Additional Sessions Judge, Fast Track Special Court (POCSO), Gariyaband, in POCSO Case No. 09/2022, whereby the appellant has been convicted for the offence under Section 363, 366, 376(2)(n), 376(3) of I.P.C. and Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter called as the “POCSO Act”) and sentenced him as below:

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Conviction	Sentence
Under Section 363 of the IPC	RI for 3 years and fine amount of Rs.300/-, in default of payment of fine, additional SI for 15 days
Under Section 366 of the IPC	RI for 5 years and fine amount of Rs.500/-, in default of payment of fine, additional SI for 25 days
Under Section 376(2)(n), 376(3) of the IPC	RI for 20 years and fine amount of Rs.2,000/-, in default of payment of fine, additional SI for 100 days
Under Section 6 of the POCSO Act	RI for 20years and fine amount of

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Rs.2,000/-, in default of payment of fine, additional SI for 100 days. (All lthe sentences to run concurrently)

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Brief facts of the case are that the P.W. 4, father of the prosecutrix has lodged a written report to the Police station Chhura, on 30-12-2021 with the effect that his minor daughter aged about 15 years and 03 months, is missing from 21-12-2021 and her whereabouts could not be traced out despite search at various places, as well as his relatives’ house. He suspected that the appellant who is also missing from the same day has kidnapped his minor daughter after alluring her. On the written report of the father of the prosecutrix, the Police have registered the F.I.R. (Ex. P-9) against unknown person under Section 363 of I.P.C. and started investigation. During the investigation, the Police has recovered the prosecutrix on 06-01-2022 from Mudagaon Nursery and recovery panchnama Ex. P-11 was prepared. Spot map Ex. P-10 was prepared by the Police and Ex. P-7 was prepared by the Patwari. The prosecutrix was sent for her medical examination to the CHC Chhura, where Dr. Nidhi Dewangan, P.W. 6, has examined her and gave her report vide Ex. P-17 and opined that there is no any finding of recent sexual intercourse. For confirmation, vaginal swab slide and underwear of the prosecutrix were sealed and handed over to the Police for FSL examination. To determine the age of the prosecutrix, the Police has seized the School admission and discharge register from the Government Primary School, Mudagaon, District Gariyaband, vide Ex. P-4 in which the date of birth of the prosecutrix is mentioned as 21-09-2006. The attested true copy of the School admission and discharge register is Article-1 C.

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On 30-12-2021, the middle School mark sheet of the prosecutrix was seized vide Ex. P-13.

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On 07-01-2022, the appellant has been arrested and arrest memo was prepared as Ex. P-18. He too was sent for his medical examination to CHC, Chhura, where Dr. Rahul Netam, P.W. 5, has examined him and gave his report vide Ex. P-15. According to the medical examination report, the appellant was found to be capable to perform sexual intercourse. The underwear of the prosecutrix, slides of her vaginal swab and underwear of the appellant were sent for FSL examination to the State Forensic Science Laboratory, Raipur, from where FSL report Ex. P- 26 was received, according to which semen and sperms were found on underwear of the prosecutrix, her vaginal swab and also on the underwear of the appellant. The statement of the prosecutrix under Section 164 Cr.P.C. and statement of the witnesses under Section 161 of Cr.P.C. have been recorded and after completion of investigation, charge sheet has been filed for the offences under Sections 363, 366, 376(2)(n), 376(3), of the IPC and Section 6 of the POCSO Act.

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The learned trial court has framed charges under Sections 363, 366, 376(2)(n) and 376(3), of the IPC and Section 6 of POCSO Act. The appellant abjured his guilt, pleaded innocence and claimed trial.

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In order to bring home the charge, the prosecution has examined as many as 10 witnesses. The statement under section 313 of CrPC of the appellant was also recorded in which he denied the material appears against him and pleaded innocence and has submitted that he has been

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falsely implicated in the offence. One defense witness has also been examined by the appellant.

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

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Learned counsel for the appellant would argue that the appellant is innocent and has been falsely implicated in the offence. No offence is made out against the appellant as alleged. The prosecution has failed to prove its case beyond reasonable doubt. There is no cogent and legally admissible evidence available on the record to show that the prosecutrix was minor and less than 18 years of age on the date of incident. Except School admission and discharge register and middle School mark sheet, no other documents like kotwari register or birth certificate or even the ossification test report has been filed by the prosecution so as to determine the age of prosecutrix, even the author of the School register who has made entry in it, has not been examined, and therefore, the finding recorded by the trial court that on the date of incident the prosecutrix was minor is erroneous. P.W. 10, Jagdish Kumar Sinha, Head Master of the School, he is not the author of the School register as projected by him in his evidence but the entry has been made by an Assistant Teacher in his presence as told by father of the prosecutrix. The said School register is also suspicious as there is correction after applying whitener, absence of signature of the parents as well as this witness too, and therefore, the School register can be discarded from consideration. The basis on which date of birth of prosecutrix is recorded in the School

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register has not been proved by the prosecution. In absence of examination of the author of the said School register, the same cannot be taken into consideration to determine the age of the prosecutrix. He would further argue that the prosecutrix was the consenting party and has not raised any alarm while going with the appellant, and she stayed with him for a considerable period. While travelling with him on motor-cycle, she has not made any complaint to any one. She has not protested at the time of alleged offence of making forceful sexual intercourse. No injuries have been found on the body of the prosecutrix. He would further argue that even if any act of sexual relation was being made by the appellant with the prosecutrix, the same was consensual, which does not come under the definition of rape. Hence, the alleged offences of I.P.C. and POCSO Act are not made out against the appellant, and he is entitled for acquittal.

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On the other hand, the learned counsel for the state opposes the arguments advanced by the learned counsel for the appellant and submitted that the prosecutrix was minor and below 18 years of age at the time of incident which is proved by the School admission and discharge register, Article-1 C, which contains the date of birth of the prosecutrix as 21-09-2006. The evidence of the prosecutrix need not be required for any corroboration and on the sole testimony of the prosecutrix, the conviction can be made. Therefore, there is no illegality or infirmity in the finding of the learned trial court. The minor prosecutrix was abducted by the appellant and kept away from the lawful guardianship of her parents.

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Therefore, the impugned judgment of conviction and sentence needs no interference.

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

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With regard to the age of the prosecutrix, the prosecution has mainly relied upon the School admission and discharge register of the prosecutrix, marked as Article-1 C, which is seized by the Police from the School and sought to be proved by Girwar Lal Nishad, P.W. 2, who is the Asstt. Teacher/Incharge Head Master of the Govt. Primary School, Mudagaon. He stated in his deposition that he is posted as Asstt. Teacher/ Incharge-Head Master since 2014 in the School and has brought the original School register with him, and as per the School register, the date of birth of the prosecutrix is mentioned as 21-09-2006. He has not made entry in the School register but it has been made by the then teacher. In his cross examination he admits that he was not posted there at the time of admission of prosecutrix in the School. He stated that the entry was made by the then Head Master of the School, Shri Jagdish Kumar Sinha, who is presently retired. He further admits that on what basis her date of birth is recorded in the School register, he could not tell. No any other record has been seized by the Police and no any person who recorded the date of birth of the prosecutrix in the School register, has been examined. No other document like Kotwari register, birth certificate or even ossification test report has been obtained by the Police to prove the age of the prosecutrix that on the date of incident, she was minor.

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P.W. 10, Jagdish Kumar Sinha, who was posted as Head Master at Government Primary School, Mudagaon, has stated in his deposition that he was posted there from 1981 to 2013 and he gave admission to the prosecutrix in the School. In the original School register, date of birth of the prosecutrix is recorded as 21-09-2006 and she was admitted in Class1 in the School. His signature is also there in the said School register. He has stated that the entry was made by the then Asstt. Teacher as told by father of the prosecutrix, in his presence. In his cross-examination, he admitted that there is correction in the School register by applying whitener in the serial number and has submitted that with respect to name of the prosecutrix, there is no correction. He is unable to tell as to who has made the entry in the said register because he was having 07 staff membera at that time in the School. He admitted that in the School register his seal was impressed but his signature is not there. When clarification was sought, he answered that his staff might have made the entry and therefore, his signature might have been left by mistake. He further admitted that affidavit register is not paginated and certified. He admitted that his signature is not there in the admission No.1297 to 1306 and therefore, the signatures of parents of prosecutrix are also have not been taken on it.

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The prosecutrix, P.W. 1, has stated in her deposition that her date of birth is 21-09-2006 and she was the student of Class 10^th . In her cross examination, she stated that she stated her date of birth on the basis of the School certificate.

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P.W. 4, father of the prosecutrix stated in his deposition that the prosecutrix is his elder daughter. He does not know her date of birth but she is in her 16^th year at the time of taking evidence. He further stated that he has got admitted her in the School but has not disclosed her date of birth in the School. In his cross examination he has stated that he has not got prepared her birth certificate and has not given it to the Police.

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P.W. 7 Nand Kumar Netam, the Investigating Officer, who conducted part of the investigation has stated in his deposition that he has seized the progress report of the prosecutrix of Class 8^th which is Article-3. In his cross-examination he stated that upon asking from the father of the prosecutrix about birth certificate of his daughter, he gave her progress report card of Class-8^th . The best evidence which could be brought by the prosecution to determine the actual age of the prosecutrix is, the Kotwari register, birth certificate, or the ossification test report, but the same has been withheld by the prosecution for the reason best known by them and for that, the presumption can not be drawn against the accused that the prosecutrix was minor at the time of alleged incident of kidnapping of the prosecutrix. There is no clinching evidence available on record to prove that the date of birth of the prosecutrix is 21-09-2006. Therefore, it seems that there is no legally admissible documentary evidence with respect to the date of birth of the prosecutrix so as to hold that on the date of incident she was minor.

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In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, which is in respect of admissibility of School records of a person, the Hon'ble Supreme Court has held that

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the transfer certificate which is issued by a 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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In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under:

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"40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.

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Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:-

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"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved.

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Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."

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The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:-

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"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"."

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In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate 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 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

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appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the School, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

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In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602 , while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under:

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

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

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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,

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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

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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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Recently, in case of P. Yuvaprakash Vs. State represented by 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 matriculation or equivalent certificate was considered. Ex. C1, i.e., the School transfer

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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 thedescription of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.

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In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:

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"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the School (other than a play School) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."

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Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:

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"Clause (i) of Section 94 (2) places the date of birth certificate from the School and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely

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(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 fromthe 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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In the instant case, although the date of birth of the prosecutrix is mentioned in School admission and discharge register as 21-09-2006, and on that basis on the date of incident, the age of the prosecutrix was appears to be below 18 years of age, but as has been observed in preceding paragraphs that the said School register cannot be taken into consideration for want of evidence of its author to prove the same, because the evidence of P.W. 10 Jagdish Kumar Sinha, who brought the School register can not be considered to be the author, as he himself has not made the entry in it but some other teacher has made the entry. Further, there is correction in the record after applying whitener, signature of the parents as well as the Head Master is missing in some part and

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there is no endorsement as to on what basis her date of birth was mentioned in it. Therefore, the age of the prosecutrix cannot be determined particularly in absence of any other authentic record and therefore, it would not be safe to hold that the prosecutrix was minor on the date of incident. In view of the above, we set aside the finding of the trial court that on the date of incident, the prosecutrix was minor and below 18 years of age.

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So far as the allegation of kidnapping and rape of the prosecutrix is concerned, the prosecutrix has stated in her deposition that she knew the appellant. On 21-12-2021, he has taken her to Nayapara Rajim and kept in the house of his relative Kamlesh Dhruva. He kept her there for about 2 weeks and made physical relation with her for 2-3 times. She eloped with him on his motor-cycle. After going to Paragaon, they came to Nursery of their village and resided under a tree for 2-3 days. In these 2-3 days, he did nothing with her, when the Police came there, he fled away. She further stated that the appellant has regularly ask her for marriage with him. She further stated that near the Nursery, her uncle’s field is situated. Near her uncle’s field, a hut ( jhopadi) was constructed by the appellant and they resided there for 2-3 days and made physical relation. In her cross examination she admitted that she was in love affair with the appellant since the time when she was studying in class 10^th . The affair between them has not been informed to her family members. She also agreed for marriage with the appellant. She was in regular conversation with the appellant for eloping with him and both of them made plan to elope. She has further stated that neither she has made any report with

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respect to forceful sexual intercourse made by the appellant with her nor informed to her family members. She further admitted that she stayed with the appellant near nursery on her own will.

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PW4, father of the prosecutrix has stated in his deposition that he knew the appellant who is resident of the same village. He lodged the missing report of her daughter to the Police station and on the basis of it, FIR was registered by the Police. Police persons have searched his daughter and recovered her from the nursery. This witness has been declared partially hostile and leading questions were asked to him. He denied the suggestion that his daughter has informed about the incident when she was brought back to his house. In his cross-examination, he stated that the appellant used to make telephonic call to him regularly, and asked to call his daughter but he refused. Mother of the prosecutrix has not been examined.

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Dr. Nidhi Dewangan, P.W. 6, has stated in her deposition that she has examined the prosecutrix on 06-01-2022 and she has not found any external or internal injury over the body of prosecutrix during her examination. She prepared the slides of her vaginal swab for its FSL examination. She opined that there was no signs of recent forceful sexual intercourse on her body.

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The appellant has also examined D.W. 1, Dr. Ritu Sirmour, who is the Scientific Officer at the State FSL, Raipur. She stated in her deposition that she examined the articles sent to the laboratory and gave her report. Firstly, she has analyzed through binocular microscope and

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thereafter, it was cross checked by trinocular microscope by a Senior officer. She has stated that by the DNA examination, it could be determined as to whether the sperms found on the articles belong to the same person or not. The age of the semen can not be determined from the microscopic examination.

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From the scrutiny of the evidence, it emerges that till the time when she was taken back by the Police, she continued in physical relation with the appellant, without making any complaint to anybody. She has not raised any alarm when she was going with the appellant on his motorcycle, or when her stay at there. She was in love affair with the appellant, she herself had gone with him, there is no allegation that she protested on any point of time at the time of making physical relation with him, she has not disclosed the incident to her parents, which dragged us to draw the conclusion that the prosecutrix is consenting party while going along with the appellant and making physical relation with him and that was the reason she has not disclosed the incident to her parents or to any other person. There is no allegation that at the time of making forceful physical relation with her, she protested in any manner, or she refused for the same. As per the medical report, there is no sign of struggle on the body of the prosecutrix. The conduct of the prosecutrix shows that she was in relation with the appellant. In absence of the DNA report, it cannot be hold that the semen and sperms found on the underwear and vaginal swab of the prosecutrix is of the appellant, merely on the basis of presence of semen on his underwear also.

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

¶119

Considering the entire evidence available on record, the evidence with regard to the age and conduct of the prosecutrix, we are of the opinion that the prosecution has failed to prove that the prosecutrix was less than 18 years of age at the time of incident. Further, she was a consenting party with the appellant in making physical relation with him. Therefore, in the above facts and circumstances of the case, the offences under sections 363, 366, 376(2)(n) and 376(3) of I.P.C. and section 6 of POCSO Act are not made out against the appellant.

¶120

For the forgoing reasons, the appeal is allowed. The judgment of conviction and order of sentence dated 20-02-2023 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 20-02-2023. He be released forthwith if not required in any other case.

¶121

Keeping in view the provisions of section 437-A of Cr.P.C., the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of some of Rs. 25,000/- with two reliable sureties in the like amount before the court concerned which shall be effective for a period of six months along with

¶122

Cra 500 of 2023

¶123

20

¶124

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.

¶125

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

¶126

Sd/Sd/- Sd/-

¶127

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

¶128

padma

Poshram Dhruw v. State of Chhattisgarh

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Poshram Dhruw v. State of Chhattisgarh

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