Prabhakar Khobragadhe Vs State of Chhattisgarh

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2025:CGHC:9765

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 256 of 2020

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Prabhakar Khobragadhe S/o Tulshiram Khobragadhe Aged About 24 Years R/o Indira Nagar, Ward No. - 05, Near Ravi Kirana Shop, Dongargarh, Police Station - Dongargarh, District - Rajnandgaon, C.G., District : Rajnandgaon, Chhattisgarh

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... Appellant

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versus

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State Of Chhattisgarh Through The Station House Officer, Police Station - Dongargarh, District - Rajnandgaon, C.G., District : Rajnandgaon, Chhattisgarh

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... Respondent

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(Cause title taken from Case Information System)

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For Appellant	: Mr. Sudhanshu Kumar Singh, Advocate
For Respondent/State	: Mr. Jitendra Shrivastava, Govt. Advocate
	along with Ms. Isha Jajodia, Panel Lawyer

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Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board

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25/02/2025

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Digitally
signed byVEDPRAKASH
VEDPRAKASH DEWANGAN
DEWANGAN Date:2025.04.29
18:23:15
+0530

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The appellant has filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 29.01.2020, passed by learned Additional Sessions Judge, Dongargarh, District Rajnandgaon, in

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Special Criminal Case No. 08 of 2019, whereby the appellant has

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been convicted and sentenced as below:-

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Conviction	Sentence
U/s. 376(2)(n) of IPC	R.I. for 10 years and fine of Rs. 1000/-, in default of payment of fine additional R.I. for 02 months.
U/s. 363 of IPC	R.I. for 07 years and fine of Rs. 500/-, in default of payment of fine additional R.I. for one month.

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Both the sentences are directed to be run concurrently.

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The case of the prosecution, in brief, is that the father of the victim (PW-8) lodged a missing report to the police on 13.01.2019 that his minor daughter is missing since 12.01.2019 and her whereabouts could not be traced out. The FIR (exhibit P-27) under Section 363 of IPC was registered by the police against unknown person. During the investigation, the victim recovered on 13.01.2019 from the possession of the co-accused Jyoti Durge from Dongargarh and recovery panchnama (exhibit P-9) was prepared in presence of the witnesses. She was sent for her medical examination to Community Heath Centre, Dongargarh, where she was medically examined by Dr. Khushbu Dewangan (PW-3), who gave her report (exhibit P-5). While medically examined the victim, the doctor has not noticed any external injuries on her body and opined that the victim seems to habitual and advised for confirmation. Two slides of her vaginal discharge were prepared, sealed and handed over to the police for its chemical examination. With respect to the age and date of birth of

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the victim, the school register from St. Peters Convent School, Dongargarh has been seized vide seizure memo (exhibit P-3) and after retaining its attested true copy, the original register was returned back to school. The 9^th class mark-sheet of the victim has also been seized vide seizure memo (exhibit P-14). The spot map (exhibit P-1) was prepared by the Patwari and exhibit P-15 was prepared by the Police. The appellant and co-accused Jyoti Durge were arrested on 17.05.2019 and the appellant was also sent for his medical examination to Community Health Centre, Dongargarh, where he was medically examined by PW-9/Dr. S. Choudhari, who after his medical examination opined that the appellant is able to perform sexual intercourse. On 07.02.2019, the victim has also made her written complaint (exhibit P-10) to the police. During the investigation, one register from Blue Star Lodge and Restaurant has been seized vide seizure memo (exhibit P-6). One motorcycle has also been seized from the appellant vide seizure memo (exhibit P-19). The vaginal slides of the victim were sent for its chemical examination to State FSL Raipur, from where report (exhibit P-23) was received and semen and sperms were found on the vaginal slide of the victim. The statement of the witnesses under Section 161 of CRPC and statement of the victim under Section 164 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed against the appellant and co-accused Jyoti Durge before the learned trial Court for the offence under Sections 363, 368, 376, 34 of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’).

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The learned trial Court has framed charge against the appellant for the offence under Sections 363, 376 of IPC and Sections 4 and 6 of POCSO Act on 30.05.2019. The charge against the applicant was amended on 25.01.2020, and the charge of Section 376 was altered under Section 376(2)(l) of IPC. The learned trial Court has framed charge against the co-accused Jyoti Durge for the offence under Section 368 of IPC. The accused persons denied the charge and claimed trial.

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In order to prove the charge against the accused persons, the prosecution has examined as many as 11 witnesses. Statement of the accused persons under Section 313 of CRPC have also been recorded, in which they denied the circumstances appearing against them, pleaded innocence and have submitted that they have been falsely implicated in the offence.

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After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has acquitted the co-accused Jyoti Durge from the offence under Section 368 of IPC, whereas convicted the appellant and sentenced him as mentioned in the earlier part of the judgment. Hence this appeal.

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Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradiction in the evidence of prosecution witnesses and the same cannot be made basis to convict the appellant in the offence in question. He would also submit that there

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is no legally admissible evidence with respect to the age and date of birth of the victim. The school record has not been proved in accordance with law. He would also submit that there is no other documentary evidence like; birth certificate, kotwari register or ossification test report to prove her age. He would also submit that the victim was a major girl and having love affair with the appellant. She herself eloped with him on her own sweat will and had gone with the appellant without raising any objection or making complaint to anyone. He has not made any complaint to anyone of the vicinity also that she was kidnapped by the appellant and subjected to rape by him. No injuries have been found on the body of the victim. Therefore, there is no sufficient and cogent evidence against the appellant to convict him for the offence in question and he is entitled for acquittal.

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On the other hand, learned counsel for the State supporting the impugned judgment submits that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions, the evidence of prosecution witnesses is fully reliable and sufficient to hold guilty of the appellant in the offence in question. There is no reason for false implication of the appellant. The age of the victim has been proved by the school register and as per the entries made in the school register, the victim was minor, who was kidnapped by the appellant. She being the minor, cannot consented for eloping or even making physical relation with the appellant. She ultimately found in possession of the sister of the appellant and from her

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evidence it is also established that the appellant has made physical relation with her, and thus, the guilt of the appellant for the alleged offences has duly been proved by the prosecution.

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I have heard learned counsel for the parties and perused the record of the trial Court.

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The first and foremost question arises for consideration would be the age of the victim, as to whether on the date of incident, she was minor or not. The prosecution has mainly relied upon the school register (Article A-1C), which is sought to be proved by PW-2, who is the headmistress of the school. She stated in her evidence that she is the headmistress of the school since 2011. The police have seized the school admission and discharge register (Article A-1) and after retaining its attested true copy (Article A-1C), the original register was returned back to the school, which she brought today with her. As per the school register, the date of birth of the victim is recorded as 08.08.2002. In cross-examination, she admitted that at the time of her admission in the school, she was not there, therefore, she could not tell as to who brought her for her admission. There might be birth certificate obtained at the time of her admission in the school, but she definitely could not tell about this. She admitted that she has not seen the birth certificate of the victim. She further admitted that she is not the author of the school register. In absence of any birth certificate, she conclusively could not say that the date of birth of the victim is 08.08.2002. From the evidence of this witness, it is quite vivid that she is not the author of the school register nor the basis on

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which the entries have been made in the school register (Article A-1) with respect to the date of birth of the victim is produced.

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The admissibility and evidentiary value of the school register has been considered by the Hon’ble Supreme Court in the matter of Alamelu and Another Vs. State, represented by Inspector of Police , 2011(2) SCC 385. In Para 40, 42, 43, 44 and 48 of its judgment, the Hon’ble 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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42. 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 Purohit, 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

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

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43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, 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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44. 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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48. 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

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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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11. 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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33.2.2. 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 33 Act, 2000 or subsection (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 hyper. technical 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

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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 33 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 33 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

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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, l.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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15. 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

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available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (1) 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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16. 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

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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)(1) 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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17. 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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PW-6, the victim has stated in her evidence that her date of birth is 08.08.2002. In cross-examination, she stated that she came to know about her date of birth from the hospital card. She admitted that she is not having her birth certificate and the place of her birth is Sambalpur (Orissa). She also admitted that her parents have not given her birth certificate to the police, but 9^th class mark-sheet was given.

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PW-7 is the mother of the victim, who has not stated that the date of birth of her daughter is 08.08.2002. She too has admitted that they have not got prepared her birth certificate. She was born at Sambalpur (Orissa).

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PW-8, the father of the victim, has stated in his evidence that the date of birth of his daughter is 08.08.2002. The police have seized the class 9^th mark-sheet of his daughter. Except these evidences,

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there is no other evidence available on record to determine the age of the victim that she was minor on the date of incident.

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Except these evidences, there is no other evidence available on record to determine the age of the victim. From consideration of the evidence produced by the prosecution, it is clear that the school record has not been proved in accordance with law, the oral evidence of the victim/PW-6, her father/PW-8 and her mother/PW-7 are not sufficient to come to conclusion that the prosecution has proved that the victim was minor on the date of incident, yet the learned trial Court has held her minor.

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So far as the offence of kidnapping and rape are concerned, I again examined the evidence of the victim and other witnesses.

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The victim/PW-6 has stated in her evidence that she knew the appellant and her mother had gone to his house to give massage to a minor child. The co-accused Jyoti Durge is the cousin sister of the appellant. On 12.01.2019, the appellant called her at Rajnandgaon through mobile phone. The appellant had already made physical relation with her many times earlier. Since the appellant had given her threatening, she had gone to Rajnandgaon by train. When she reached at Rajnandgaon railway station, after sometime, the appellant came there by his motorcycle and took her to Patalbhairavi Mandir, where he asked to change her clothes and thereafter on the way to Dongargarh, he took her in a hotel. In the hotel, he made physical relation with her. After staying in the hotel for about 01 hour,

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he took her to Rajnandgaon and left her in the house of co-accused Jyoti Durge and asked her to remain there till he returned. On the next evening, the police persons came with the appellant and took her back. On 07.02.2019, she was feeling severe pain on her abdomen and then she disclosed the entire incident to her mother and made a written complaint (exhibit P-10) to the police, thereafter she was sent for her medical examination. In cross-examination, she admitted that on 12.01.2019, she alone had gone to Rajnandgaon by train and herself has taken the travel ticket. She further admitted that she had gone to Rajnandgaon without informing her parents. She also admitted that GRP and RPF police were present in the Railway station and since she was scared by the threatening given by the appellant, she could not make any complaint to them. She also disclosed that earlier also the appellant had made physical relation with her. She also admitted that when she had gone to Rajnandgaon, she took her Saree, Petticoat and Blouse. She also admitted that when the appellant took her to Patalbhairavi Mandir, she has not disclosed about the incident to anyone. She met with co-accused Jyoti Durge first time when the appellant left her in her house. She has not disclosed any incident to the co-accused Jyoti Durge also. When she was there in the house of Jyoti Durge, police came there in the next night and took her back. She also admitted that when she had gone to Rajnandgaon, she took Rs. 3000/- with her, which was of her parents’ money.

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From the evidence of the victim, no offence as alleged against the appellant is made out, as she herself had gone to Rajnandgaon along with her clothes and cash amount of Rs. 3000/-. When she had gone to Rajnandgaon with clothes and cash amount, that itself shows that she herself wanted to elope with the appellant and with full preparation, she had gone there. Had the appellant forced her to come to Rajnandgaon, she would have made complaint to persons, who met on the way or train, even in the Railway station, she has not made any complaint to GRP or RPF. Even no complaint has been made at Patalbhairavi Mandir. Her conduct while residing in the house of co-accused Jyoti Durge also reflects that she was the consenting party in eloping with the appellant and making physical relation with him. There is no evidence that she protested at any point of time while she was being taken by the appellant or making physical relation with her. There is no sign of any struggle or nail scratch mark or teeth bite given by her. Despite having opportunity to came out from the clutches of the appellant and to inform the police persons about the incident, she did nothing, which does amount that she was the consenting party in making physical relation with the appellant.

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In the case of S. Varadarajan Vs. State of Madras , AIR 1965 SC 942, the Hon'ble Supreme Court has held that:

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"9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard

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ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

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10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".

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From the conduct of the victim and in view of the aforesaid judgment of S. Vardarajan (supra), it cannot be said that the appellant has

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kidnapped the victim and procured the minor girl, as the victim is not found to be minor and no offence of either kidnapping or procuring a minor girl is made out against the appellant.

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PW-7, the mother of the victim has stated in her evidence that when the victim could not be found in her house, they lodged the missing report. On the next night, the police informed them that the victim was recovered. After 15-20 days, her daughter feeling severe abdominal pain and then she disclosed about the incident. Thereafter, they disclosed it to the police. In cross-examination, she stated that when she received information about recovery of her daughter, the police informed them that she was recovered from the co-accused Jyoti Durge. On 13.01.2019, there was no medical examination of her daughter. The incident was of 12.01.2019 and after about a month, they lodged the report about the incident. She further admitted that in between 12.01.2019 to 07.02.2019, the victim had not disclosed any incident with her and after repeatedly insisting, on 07.02.2019 she disclosed about the incident.

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PW-8, the father of the victim, has stated in his evidence that when his daughter was missing, his wife has lodged missing report to the police and she was recovered from the house of co-accused Jyoti Durge. After about a month, when his daughter was feeling severe abdominal pain, they lodged the report to the police and the incident was disclosed by his daughter to them. In cross-examination, he admitted that he did not know, as to in whose house she stayed at Rajnandgaon and he has not seen anything. He admitted that the

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appellant has not committed any incident in his house. He also admitted that the wife of the appellant made report against them and only after that they have lodged report against the appellant on 07.02.2019.

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PW-3, Dr. Khushbu Dewangan, who medically examined the victim on 07.02.2019, has not found any external injuries on her body and opined that she was habitual to sexual intercourse and no sign of any forceful sexual intercourse was found on her body.

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PW-4 is the Manager of Blue Star Hotel. He stated in his evidence that on 12.01.2019, the appellant and the victim came to his hotel and disclosed the purpose to came there that they wanted to refresh there and had gone to Mandir for Darshan. Both of them were stayed from 01:30 to 02:40 PM. In cross-examination, he admitted that after due verification, they allotted the rooms to the customers and it was their routine business. He personally did not know the appellant as well as the victim and whatever he stated in his evidence is based on the entries of the hotel register. It was not uncommon of their behaviour when they came to hotel. Even no complaint has been made to anyone.

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From all these evidences available on record, there is no sufficient and cogent evidence to prove the guilt of the appellant beyond reasonable doubt, as the victim herself had gone to Rajnandgaon and made physical relation with the appellant without raising any objection or making any complaint to anyone on the way and also

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while residing at the house of co-accused Jyoti Durge and had not tried to flee from the place. She had gone with preparation to reside with the appellant as she left her house with her clothes and Rs. 3000/- cash.

¶114

The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the 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 any reasonable doubt, which the prosecution has failed to do in the instant case.

¶115

Considering the aforesaid facts and circumstances of the case and evidence available on record, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt and there is no sufficient cogent and clinching evidence to uphold the conviction of the appellant for the alleged offences and his conviction is liable to be set aside.

¶116

23

¶117

Accordingly, the appeal filed by the appellant is allowed . The impugned judgment of conviction and sentence is hereby set aside and the appellant is acquitted from all the offences.

¶118

The appellant is reported to be in jail since 17.05.2019. He be released forthwith, if not required in any other case.

¶119

Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance.

¶120

Sd/(Ravindra Kumar Agrawal) Judge

¶121

ved

Prabhakar Khobragadhe v. State of Chhattisgarh

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Prabhakar Khobragadhe v. State of Chhattisgarh

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