Mukesh Singh Vs State of Chhattisgarh

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Digitally signed by ANURADHA ANURADHA TIWARI TIWARI Date: 2025.10.09 10:38:18 +0530

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2025:CGHC:49999-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 360 of 2022

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Mukesh Singh S/o Akrit Singh @ Sandhu Aged About 20 Years R/o Village Raisara, Outpost Chendra, Police Station Jhilmili, DistrictSurajpur, Chhattisgarh.

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versus

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State of Chhattisgarh Through Station House Officer, Outpost Chendra Police Of Police Station- Jhilmili, District- Surajpur, Chhattisgarh.

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... Respondent

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(Cause-title taken from Case Information System)

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For Appellant : Mr. Anil Gulati, Advocate For Respondent/State : Ms. Soumya Sharma, Panel Lawyer

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Hon'ble Shri Ramesh Sinha, Chief Justice

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Hon'ble Shri Bibhu Datta Guru, Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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08.10.2025

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1. Heard Mr. Anil Gulati, learned counsel, appearing on behalf of the appellant as well as Ms. Soumya Sharma, learned Panel Lawyer, appearing on behalf of the State/respondent.

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2. This appeal is directed against the judgment of conviction and order of sentence dated 29.01.2022 passed by the Additional Sessions Judge, Fast Track Special Court, Surajpur, District Surajpur, Chhattisgarh in Special Criminal Case No.33/2020 whereby the appellant has been convicted for the offence punishable under Sections 363, 366A of the Indian Penal Code, 1860 (for short, “IPC”) and Sections 4(2) and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and sentenced to undergo rigorous imprisonment for 7 years and fine of Rs.200/-, in default of payment of fine, additional rigorous imprisonment for 4 months, rigorous imprisonment for 10 years and fine of Rs.200/-, in default of payment of fine, additional rigorous imprisonment for 4 months, rigorous imprisonment for 20 years and fine of Rs.200/-, in default of payment of fine, additional rigorous imprisonment for 4 months and rigorous imprisonment for 20 years and fine of Rs.2,000/-, in default of payment of fine, additional rigorous imprisonment for 4 months, respectively and it was further directed to run all the sentences concurrently.

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3. Learned State counsel submits that notice issued to the father of the prosecutrix/victim (PW-1) has been served, but none has appeared on behalf of the prosecutrix/victim to contest the present appeal.

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4. The prosecution case, in brief, is that on 04.06.2020, the victim (PW-2) lodged a written report (Ex.P/2) at Police Outpost–

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Chendra, Police Station–Jhilimili, alleging that while she was on her way to work at a construction site in village Raisara, where the accused Mukesh Singh was also employed, he expressed his liking towards her and thereafter called her to Babuadand of the same village. It is alleged that the accused committed sexual intercourse with her several times against her will and threatened to kill her if she resisted. It was further alleged that on 03.05.2020, the accused called her near a Peepal tree at Raisara Chowk, and after making her sit on his motorcycle, took her to village Judwani, where he kept her confined and repeatedly subjected her to sexual assault. After about twelve days, her father, maternal uncle, and paternal uncle traced her whereabouts, brought her back home, and she then narrated the entire incident to her family members.

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5. On the basis of the written report (Ex.P/2), an unnumbered First Information Report (Ex.P/3) was registered at Police Outpost– Chendra, Police Station–Jhilimili, for offences under Sections 363, 366, 376(2)(n), and 506 of the IPC and Sections 4 and 6 of the POCSO Act. Subsequently, a numbered FIR being Crime No.44/2020 was registered at Police Station–Jhilimili.

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6. During the course of investigation, crime details form was prepared vide Ex.P/4 and consent for medical examination of the victim was taken vide Ex.P/5. Statement of the victim was recorded under Section 164 of Cr.P.C. vide Ex.P/7. The medical

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examination of the victim was conducted by Dr. Malti Nag (PW-6) and his MLC report was Ex.P/12. One motorcycle of the appellant was seized vide Ex.P/13. The Dakhil-kharij register of Government Primary School, Tevarkhand Kaskela regarding date of birth of the prosecutrix was seized vide Ex.P/14 and a copy of the Dakhil-kharij register was Ex.P/16C. The accused was arrested on 05.06.2020 vide arrest memo Ex.P/22.

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7. Statements under Section 161 of the Cr.P.C. of the witnesses were recorded by the police. After completion of investigation, charge-sheet No. 45/2020 was filed before the Court of Additional Sessions Judge, Fast Track Court, Surajpur, District Surajpur (C.G.) for the commission of offence punishable under Sections 363, 366, 376(2)(n) and 506 of the IPC as well as Sections 4 and 6 of the POCSO Act.

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8. The trial Court has framed charges under Sections 363 and 366 of the IPC as well as Sections 4(2) and 6 of the POCSO Act. During trial, the prosecution has examined as many as 11 witnesses as PW-1 to PW-11 and exhibited 23 documents Ex. P/1 to Ex.P/23. In order to prove the defence, appellant has not examined any witness, but exhibited only document i.e. statement of the prosecutrix vide Ex.D/1.

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9. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted

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the appellant and sentenced him as mentioned in the second paragraph of this judgment. Hence this appeal.

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10. Learned counsel for the appellant has submitted that the appellant has been falsely implicated in the present case. The prosecution has completely failed to prove the guilt of the appellant. He further submits that the victim was a consenting party to the alleged act and that the physical relationship between the appellant and the prosecutrix was consensual in nature. It is contended that when the prosecutrix became pregnant, she was influenced and persuaded by her parents to lodge a false report against the appellant, resulting in his implication in the present case. It is further submitted that with regard to the age of the prosecutrix, the prosecution has relied upon her Class VIII mark-sheet, in which her date of birth is mentioned as 02.07.2004. However, it is argued that the said document has not been duly proved in accordance with law, nor has the prosecution adduced any independent or cogent evidence to establish the age of the prosecutrix beyond reasonable doubt. It has been further contended that the First Information Report was lodged after an inordinate delay of about eight months, for which no plausible or satisfactory explanation has been offered by the prosecution. The prosecution has completely failed to prove the age of the prosecutrix that on the date of the incident, the prosecutrix was minor. In fact, the prosecutrix herself is the consenting party,

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therefore, the conviction of the appellant is not sustainable and the appellant should be acquitted of the charges framed against him.

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11. 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 prosecutrix and other witnesses are fully reliable. There are sufficient evidence available on record to hold the appellant guilty for the alleged offence. She further submits that the victim, a minor girl of 15 years and 3 months on the date of incident and aged about 16 years as per her Class-8th mark-sheet, was subjected to forcible sexual intercourse by the appellant and when she became pregnant, the appellant administered some medicines to her for her abortion. She also submits that 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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12. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection.

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13. The first and foremost question arose for the consideration would be whether the prosecutrix was minor and less than 18 years of age on the date of incident or not ?

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14. In order to consider the age of the prosecutrix, we have examined the evidence available on record. The prosecution has mainly

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relied upon Dakhil-kharij Register (Ex.P/16C), statements of father of the prosecutrix (PW-1), prosecutrix herself (PW-2), mother of the prosecutrix (PW-3) and Amrita (PW-9) Teacher of Government Primary School, Teetrakhad Kaskela. According to the Dakhilkharij Register (Ex.P/16C), the date of birth of the prosecutrix is 02.07.2004.

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15. The father of the prosecutrix (PW-1) has not deposed the exact date of birth of the victim, but only stated that his daughter was aged about 15 years and in cross-examination, he has admitted that he has not remembered the age of the victim and grandparents ( Nana Nani ) of the victim had enrolled her in school, as such, he cannot tell her date of birth.

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16. Prosecutrix herself (PW-2) has not deposed anything in her examination-in-chief about her date of birth. In her crossexamination, she has admitted that her year of birth was 2004 according to her mark-sheet but she cannot tell on what basis her date of birth was mentioned as 2004. She further admitted that she was studying in Class-I while living at her grandparents' house and visited her parents' house on vacation.

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17. Likewise, mother of the prosecutrix (PW-3) has deposed in her evidence that her daughter was aged about 17-18 years and studied at Class-X. In cross-examination, she has admitted that grandparents ( Nana Nani ) of the victim had enrolled her in school, as such, she cannot tell her date of birth.

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18. Amrita (PW-9), Teacher of Government Primary School, Teetrakhad, Kaskela, has deposed that as per Serial No.429 of the Dakhil-kharij Register, the date of birth of the prosecutrix is 02.07.2004. In cross-examination, she deposed that she did not enroll the victim in the school. Although the victim’s date of birth is recorded as 02.07.2004 in the admission register, she could not explain the basis for the same. She further stated that she was not present at the time of admission and, therefore, could not say whether any birth certificate or Kotwar register entry was produced. The victim was not admitted by her parents but by her maternal grandfather. She added that in cases where parents are illiterate, teachers generally estimate the child’s age, and in this case, a declaration was submitted without any supporting certificate. She also stated that there is no column in the DakhilKharij Register (Ex.P/16C) indicating who took the admission.

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19. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the prosecutrix so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school Dakhil-kharij register, it would not be safe to hold that the prosecutrix was minor on the date of incident. The statements of father of prosecutrix (PW-1), prosecutrix herself (PW-2), mother of the prosecutrix (PW-3), as

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also the statement of Amrita (PW-9), Teacher of Government Primary School, Teetrakhad, Kaskela are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the prosecutrix is 02.07.2004.

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20. Very recently, the Hon’ble Supreme Court in the matter of Birka Shiva v. State of Telangana, 2025 SCC OnLine SC 1454 has observed as under:

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"8. The evidentiary value of such an entry made in public or official registers may be admissible in evidence under Section 35 of the Indian Evidence Act, 1872. However, admissibility is distinct from probative value. While such documents may be admitted into evidence, their evidentiary weight depends on proof of their authenticity and the source of the underlying information. Mere production and marking of a document as exhibited by the Court does not amount to proof of its contents. Its execution has to be proved by leading substantive evidence, that is, by the ‘evidence of those persons who can vouchsafe for Hereinafter referred to as the ‘Evidence Act’ the truth of the facts in issue’. [See: Narbada Devi Gupta v. Birendra Kumar Jaiswal] We may refer to a few judicial pronouncements of this Court in this regard:

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8.1. This Court, in Birad Mal Singhvi v. Anand Purohit, held that the entries contained in the school register are relevant and admissible but have no probative value unless the person who made the entry or provided the date of birth is examined. It was observed:

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“14. … If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value.

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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. The entry contained in the admission form or the scholar's register must be

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shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value, but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. …

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15. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to the date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. … The courts have consistently held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined…"

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(Emphasis Supplied)

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This decision has been consistently followed by this Court in Pratap Singh v. State of Jharkhand; Babloo Pasi v. State of Jharkhand; Murugan v. State of T.N.; State of M.P. v. Munna; C. Doddanarayana Reddy v. C. Jayarama Reddy; and Manak Chand v. State of Haryana.

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8.2. A coordinate Bench of this Court in State of Chhattisgarh v. Lekhram, through S.B. Sinha, J., clarified that though entries in school registers are

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admissible under Section 35 of the Evidence Act, their evidentiary value improves only when corroborated by oral testimony of persons who are aware of its content, such as parents or the person who made the entry at the time of admission. It held as under:

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“12. A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. PW 5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth. The father of the prosecutrix also deposed to the said effect.

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13. …The materials on record as regards the age of the prosecutrix were, therefore, required to be considered in the aforementioned backdrop. It may be true that an entry in the school register is not conclusive, but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix."

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8.3. Similarly, this Court in Satpal Singh v. State of Haryana, stated that though a document may be admissible, but to determine whether the entry contained therein has any probative value, may still be required to be examined in the facts and circumstances of a particular case. It held as follows:

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“26. In Vishnu v. State of Maharashtra [(2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] while dealing with a similar issue, this Court observed that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. For determining the age of the child, the best evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the municipal corporation, government

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hospital/nursing home, etc., the entry in the school register is to be discarded.

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28. Thus, the law on the issue can be summarised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend as to on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case.”

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8.4. In Madan Mohan Singh v. Rajni Kant, this Court held that the entries made in the official record may be admissible under Section 35 of the Evidence Act, but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded. It was held as follows :

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“20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

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21. … For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded. …”

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8.5. This Court, in Alamelu v. State, while dealing with a similar factual matrix, held that the prosecution had failed to prove that the girl was a minor at the relevant date since the transfer certificate of a Government School showing age was not duly proved by witnesses. It observed as under:

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“40. Undoubtedly, the transfer certificate, Ext. P- 16 indicates that the girl's date of birth was 15-61977. 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. 31-7-1993. 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 Evidence Act, 1872. 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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41. We may notice here that PW 1 was examined in the Court on 9-8-1999. In his evidence, he made no reference to the transfer certificate (Ext. P-16). He did not mention the girl's age or date of birth. PW 2 was also examined on 9-8-1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 CrPC seeking permission to produce the transfer certificate and to recall PW 2. This petition was allowed. … In her cross- examination, she had merely stated that she had signed on the transfer certificate, Ext. P-16 issued by the school and accordingly her date of birth was noticed as 15-6- 1977. She also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate.”

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(Emphasis supplied)

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9. In the attending facts, we find that the evidentiary value of Ex.P11 is significantly undermined in the absence of corroborating material. We say so for the following reasons:

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(i) PW-13, who is the Headmaster of Zilla Parishad High School, Chandanapur, Peddapalli District (erstwhile Karimnagar District), stated that the victim studied in his school from 2007 to 2013, i.e., 6th Class to 10th Class and that the Admission Register records her date of birth as 3rd November 1996. However, in his cross-examination, he admitted that he had no personal knowledge as to the source or basis on which the date of birth was recorded therein or if the recorded date of birth was correct or not. The relevant part of his testimony is extracted hereunder:

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“…In our school there is not clerk to maintain records. I did not produce any certificate pertaining to earlier school I, In which P.W.3 studies up to 5th Class. There must be basis for entering date of birth of a student in our school such as her earlier school record. I do not have personal knowledge as to what record was produced by parents of P.W. 3 as basis to enter her date of birth in our school as I was not Head Master in 2007.

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I cannot say in which school P.W.3 studied up to 5th Class. In the nominal roll register of our school, the signature of P.W.3 was obtained. I do not have personal knowledge whether the said date of birth of P.W.3 was correct or not and I am giving evidence only on the basis of record.”

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(Emphasis Supplied)

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(ii) The prosecution has failed to examine the person who had made the entry in the Admission Register to ascertain on what basis such an entry was made. More so, the entry in respect of the date of birth of the victim in the primary school register, i.e., 1st Class to 5th Class, has not been produced and proved before the Courts below to verify the age as per its records. It is also not possible to ascertain from the records as to whether the date of birth was provided by the parents or simply entered at the behest of another party, without verification, at the time of admission to Zilla Parishad High School.

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(iii) The testimonies of PW-1, PW-2 and PW-3 are also telling that none of them mentioned the victim's age with specificity. There is no reference to Ex.P11, and no attempt was made by the prosecution to adduce corroborative testimony regarding the victim's date of birth from her family members.

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Thus, while examining the issue at hand, on the anvil of the principles elucidated above, it is essential to notice that the prosecution has failed to toe the line of legal requisites. There is nothing on record to corroborate the date of birth of the victim as recorded in the birth certificate (Ex.P11) issued by the school. Therefore, it cannot be relied upon to definitely determine the age of the victim and held with certainty that the victim was below sixteen/eighteen years of age.

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11. Furthermore, none of the victim's family members, i.e., her mother and brothers have said anything about the age of the victim in their depositions made in the Court. Even the victim is effectively silent on this aspect, only stating that she and her siblings were born approximately two years apart and thereby making an estimation of their ages as well as her own. Throughout her deposition, the victim has remained silent with regard to her particular date of birth.

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12. Well, suffice it to say that Courts of law cannot make a determination of guilt in thin air, based on estimations. In the present facts and circumstances, the proof submitted by the prosecution in the form of Ex.P11 (birth certificate issued by the school) was not sufficient to arrive at a finding that the prosecutrix was less than sixteen/eighteen years of age, especially when such a document was not sufficiently corroborated. Therefore, it was neither safe nor fair to convict the appellant based on it, particularly in the context where the age of the victim was such a pivotal factor. "

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21. Reverting to the facts of the present case in the light of abovementioned judgment, the father of the prosecutrix (PW-1), prosecutrix herself (PW-2) and mother of the prosecutrix (PW-3) have not stated anything with regard to date of birth of the

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prosecutrix as well as Amrita (PW-9) Teacher of Government Primary School Teetrakhad Kaskela has though has admitted that in the Dakhil-kharij Register (Ex.P/16C), date of birth of the prosecutrix has been mentioned as 02.07.2004, but in crossexamination, he has stated that she did not know that on what basis the date of birth of prosecutrix has been mentioned in the documents.

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22. Except for these evidences, no other evidence like Kotwari register or birth certificate 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 witnesses i.e. father of the prosecutrix (PW-1), prosecutrix herself (PW-2), mother of the prosecutrix (PW-3) and Amrita (PW-9) as also Dakhil-kharij Register (Ex.P/16C) are not sufficient to hold that the prosecutrix was minor on the date of incident because of the reason that no documents has been shown to ascertain the fact that on what basis the date of birth of the prosecutrix was recorded. The entry with regard to age of the prosecutrix has been mentioned in the Dakhil-kharij Register (Ex.P/16C) is not sufficient to hold actual date of birth of the prosecutrix. There is every possibility that the date of birth of the prosecutrix is recorded on assumption otherwise, the prosecution must have produced the relevant record on the basis of which her date of birth recorded in the said register. The evidence produced by the

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prosecution with respect to the age of the prosecutrix are not of that sterling quality which is sufficient to determine the age of the prosecutrix. 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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23. The next question for consideration would be whether the appellant has committed rape upon her or not ?

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24. Very recently, in the matter of Tilku Alias Tilak Singh v. The State Of Uttarakhand, 2025 INSC 226 , the Supreme Court while dealing with the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, has held as under :-

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“16. Even if the finding of the learned Single Judge of the High Court that the prosecutrix was between 16 to 18 years of age is to be accepted, in our view, the offence under Sections 363 and 366 IPC would still not be made out.

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17. This Court in the case of S. Vardarajan v. State of Madras had an occasion to consider almost similar facts that arise for consideration in the present case. This Court has observed thus:

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“7. …..It will thus be seen that taking or enticiting away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to “taking” out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the

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appellant did that constitutes in law “taking”. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the SubRegistrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her

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father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her…….”

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18. It is thus clear that the prosecutrix, who according to the learned Single Judge of the High Court, was between 16 to 18 years of age was very much in the age of understanding as to what was right and wrong for her.”

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25. PW-1 father of the prosecutrix, has deposed that about two to three weeks prior to the filing of the police report, the accused, Mukesh Singh, had kidnapped her daughter, the victim, stating that he intended to keep her as his wife. She deposed that she, along with her brother-in-law, traced her daughter and brought her back home. The victim informed her mother about the acts committed by the accused. In cross-examination, she admitted that the victim owned a mobile phone and, due to occasional scolding for its use, once attempted to harm herself. She further admitted that a village panchayat had been held before the incident, in which the accused had declared his intention to keep the victim as his wife, and after the panchayat, the victim had returned home. She also deposed that she subsequently filed a police report against the accused. She confirmed that Ex.P/1 was not read over to her; she was only asked to sign it. She denied the suggestion that the victim did not inform her about the incident or that the accused did not abduct and rape the victim under the pretext of marriage.

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26. The prosecutrix herself (PW-2) has stated that she has known the accused, Mukesh Singh, for about two to three years. She deposed that the accused used to force her to meet him and threatened to kill her if she did not comply. On 03.05.2020, the accused lured her near the Peepal tree at Raisara Chowk, forcibly took her to his house on his motorcycle, and raped her. He repeatedly threatened her family members and, on several occasions, forcibly raped her at Babua Danda in the village. She further deposed that she became pregnant by the accused, who gave her abortion pills, resulting in miscarriage. Thereafter, he took her to her maternal grandparents’ house and told her he would not marry her. She informed her parents about the incident, after which her father and maternal uncles brought her home and filed a police report.

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27. In cross-examination, PW-2 admitted that certain details of pregnancy and miscarriage were not mentioned in her written application, FIR, or Section 164 statement. She confirmed that she had not informed her parents about the incident before 03.05.2020. She stated that she jumped into a pond due to pregnancy and not because of parental scolding, and that a village panchayat was held regarding the accused, who refused to marry her. She further stated that her date of birth is 2004, according to her mark sheet, but she could not state the exact date. She also confirmed that she was studying at her maternal

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grandparents’ house and visited her parents’ house during holidays, where she became acquainted with the accused at a road construction site and used to talk to him on the mobile phone. She denied all suggestions that the accused did not lure her, threaten her family, or have physical relations with her, and denied that she filed the report after consulting her family members.

¶114

28. Likewise, the mother of the prosecutrix (PW-3) has supported the evidence of the father of the prosecutrix (PW-1) and largely corroborated the prosecution story. She deposed that the accused, Mukesh Singh, had forcibly taken her daughter, the victim, to his house under the pretext of marriage, kept her there for several days, and committed sexual intercourse with her by threatening to kill her and her family. As a result of these acts, her daughter became pregnant, and the accused caused her to abort by administering abortion pills. Thereafter, he left the victim at her uncle’s house in village Tulsi. PW-3 further stated that her son later found the victim and brought her back home, following which a report was lodged at the police station. She also deposed about the victim’s background, including her residence with maternal grandparents in Teetrakhad, her schooling, and her visits to Raisara village during vacations where she worked on road construction. She confirmed that the accused had worked at the same site and that her daughter had been lured by him through

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repeated calls and threats. PW-3 denied all suggestions that the accused had not taken her daughter, had not committed any wrong acts.

¶117

29. Dr. Marlti Nag (PW-6) has deposed in her statement that the prosecutrix was brought before her and on examining the prosecutrix, she found following symptoms and injuries :-

¶118

“External examination: Secondary sexual characteristics were developed. No external injury marks were found on the victim's body.

¶119

Internal examination: The vulva was normal, pubic hair was present and not adherent, the hymen was torn, and the victim's vagina was easily penetrated by one finger. There were no signs of struggle. The vagina was normal. A urine pregnancy test was recommended.

¶120

Opinion: - There were no signs of spontaneous intercourse. Slides were not prepared because the incident occurred a month ago..”

¶121

30. Further, articles were not sent for its chemical examination for the reasons best known to the prosecution.

¶122

31. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be

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convicted. The prosecution has to bring home the charges leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do so in the instant case.

¶125

32. Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that the appellant has committed rape upon her, rather it reflects from the evidence that the prosecutrix herself had made physical relations with the appellant and she has not made any complaint to anyone and has not raised any alarm. Had she been forcefully raped against her will or consent, she would definitely raise alarm or to make complaint to anyone. Since, it is held that the prosecutrix is not below the 18 years of age, she is capable to give her consent and therefore, it cannot be said that the appellant procured a minor girl with the intention to illicit intercourse or committed rape upon her.

¶126

33. Upon careful consideration of the evidence on record, it is evident that the prosecutrix (PW-2), along with her parents (PW-1 and PW-3), has consistently stated that the accused, Mukesh Singh, had taken the victim under the pretext of marriage and committed sexual intercourse with her. However, it is also noticed that the First Information Report (Ex.P/3) was lodged after an inordinate delay of approximately eight months, for which no plausible explanation has been furnished by the prosecution.

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34. Furthermore, while the victim has alleged that the accused administered abortion pills causing miscarriage, there is no independent medical evidence on record to substantiate this claim, nor has the prosecution proved that the accused was responsible for terminating the pregnancy. The statements regarding the alleged administration of pills remain uncorroborated and are insufficient to conclusively establish this aspect of the allegation.

¶129

35. Considering these factors, and in the absence of reliable corroborative evidence regarding the use of abortion pills, the benefit of doubt must be extended to the appellant with respect to this aspect. While the prosecution has alleged certain acts, the delay in lodging the FIR and lack of proof concerning the miscarriage seriously affect the credibility of these claims.

¶130

36. Having considered the depositions of the witnesses and the evidence on record, this Court finds that the prosecution has failed to establish the essential ingredients of the offences alleged against the appellant, Mukesh Singh. PW-1 and PW-3, the father and mother of the prosecutrix, have deposed regarding the alleged abduction and sexual assault. PW-2, the prosecutrix herself, has deposed about her interactions with the appellant and the alleged acts. While she stated that she had physical relations with the appellant and mentioned an abortion, it is noted that her statements regarding pregnancy and administration of pills are not

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corroborated by any medical evidence. PW-6, the examining doctor, has not found injuries consistent with forceful sexual intercourse, and the chemical examination of articles was not conducted. There is also no evidence that the appellant used any force or threats that would negate consent.

¶133

37. In view of the above, the Court is of the considered opinion that the prosecution has not proved the offences under Sections 363, 366A of the IPC, or Sections 4(2) and 6 of the POCSO Act beyond reasonable doubt. The evidence reflects that the relationship between the appellant and the prosecutrix was consensual, and the allegations of abduction and rape are not supported by credible material.

¶134

38. 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 for committing the aforesaid crime and as such, the appellant is entitled for acquittal by giving him benefit of doubt.

¶135

39. In the result, the appeal is allowed . The impugned judgment of conviction and order of sentence dated 29.01.2022 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail since 05.06.2020. He be released forthwith, if not required in any other case.

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40. Keeping in view the provisions of Section 437-A Cr.P.C. (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), 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.

¶138

41. 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.

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Sd/Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

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Anu

Mukesh Singh v. State of Chhattisgarh

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Mukesh Singh v. State of Chhattisgarh

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