Kaushlendra Rathore Vs State of Chhattisgarh

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2025:CGHC:50242

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment Reserved on : 17.09.2025

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Judgment Delivered on : 09.10.2025

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CRA No. 542 of 2022

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Kaushlendra Rathore S/o Ramratan Rathore, Aged About 38 Years R/o Village Krishna Vihar, House No. B-1234, NTPC Colony, Darri, Police Station Darri, District Korba Chhattisgarh

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... Appellant

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versus

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State Of Chhattisgarh Through Station House Officer, Police Station Darri, District Korba (Chhattisgarh)

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... Respondent

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{Cause title, as taken from Cause Information System}

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For Appellant : Mr. Vivek Mishra, Advocate For Respondent/State : Mrs. Mukta Tripathi, Panel Lawyer

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(Hon’ble Mr. Justice Naresh Kumar Chandravanshi) CAV JUDGMENT

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1. This criminal appeal has been preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (henceforth, Cr.P.C.) challenging judgment of conviction and order of sentence dated 10.3.2022 passed by Special Judge (POCSO), Katghora Distt. Korba (CG) in Special Case (Criminal) No. 61/2020, whereby the learned Special Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:-

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Sl. No.	Conviction under Section	Jail Sentence	Fine Sentence	Default stipulation
01.	12 of the POCSO Act	RI for 02 years	Rs. 600/-	RI for 02 months
02.	3(1)(W) of Atrocities Act	RI for 01 year	Rs.300/-	RI for 01 month
03.	3(2)(Va) Atrocities Act	RI for 01 year	Rs.300/-	RI for 01 month

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All the sentences were directed to run concurrently. The appellant has also been convicted for offence under Section 354 (A) of the IPC, but he has not been sentenced separately for the same in view of provision of Section 42 of the POCSO Act, as he has already been sentenced for the similar offene under Section 12 of the POCSO Act.

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2. The case of the prosecution, in brief, is that, on 12.01.2019 the minor victim girl, aged about 17 years, who belongs to Scheduled Caste category, lodged FIR (Ex.P-1) against appellant/accused, who does not belong to reserved category, in Police Station Darri, District Korba (C.G.) alleging therein that, she is the student of Class-XI of Govt. Higher Secondary School, NTPC, Darri. On 02.01.2019 at the time of closing of school, just before the prayer at about 4.45 PM, appellant, who is teacher of aforesaid school, seeing her alone, came to her and said “I love you” and “I come to school to see you only” and asked to give her mobile number, with wrong intention, he told her vulgar things also. She immediately informed Tarakeshwari madam at school about the incident and after going to home also narrated the incident to her mother. Based on the above fact, the police registered FIR (Ex.P-1) against the appellant/accused for the offence under Section 354A of the IPC and Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’).

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2.1 During the investigation, police got recorded statement of the victim/prosecutrix under Section 164 Cr.P.C. (Ex.P-4) from concerned Judicial Magistrate, prepared spot map (Ex-P/2) of place of incident, also got prepared spot map from concerned Patwari. Statement of victim and other witnesses were recorded under Section 161 Cr.P.C. Statement of the victim was also recorded by Child Welfare Committee, Korba, District Korba (C.G.) on 14.01.2019. Caste Certificate (Ex.P-8c) of victim was seized vide seizure memo (Ex.P-6). Her mark-sheet of class X (Ex.P-9c) was seized vide seizure memo (Ex.P-7) from her father. Dakhil Kharij Register (Ex.P-11c) of victim was also seized from Primary School, No. 2, Darri vide seizure memo (Ex.P-10). The appellant was arrested vide arrest memo (Ex.P-13). After completion of investigation, charge-sheet under Section 354-A of the IPC, Section 12 of the POCSO Act and Section 3(2)(V-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the SC/ST Act’) was filed against appellant/accused before Special Court.

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3. Learned Special Court (henceforth, ‘trial Court’) framed charge under Section 354 (A) of the IPC, Section 12 of the POCSO Act and Sections 3(1) (b) and 3(2) (V-a) of the SC/ST Act were framed against the appellant, who abjured the guilt and claimed trial.

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4. So as to hold appellant/accused guilty, the prosecution examined as many as 14 witnesses and exhibited 13 documents. Statement of the appellant/accused was recorded under Section 313 of Cr.P.C. in which he denied all the circumstances appearing against him in the prosecution evidence, pleaded innocence and false implication. He has examined two defence witnesses in his defence namely J.P. Sahu, Lecturer (DW-1) and Ajay Pratap Singh, Lecturer (DW-2) of aforesaid school.

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5. The Special Court, after appreciating oral and documentary evidence available on record, by its judgment dated 10.03.2022, convicted the appellant herein for offences under Section 354 (A) of the IPC, Sections 12 of the POCSO Act, Sections 3(1)(W) and 3(2)(Va) of the SC/ST Act and sentenced him, as mentioned in opening paragraph of the judgment.

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6. Being aggrieved and dissatisfied with the same, instant criminal appeal has been preferred by the appeal questioning the same.

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7. Contention of learned counsel for the appellant is that though as per the Dakhil Kharij Register (Ex.P/11c), date of birth of the victim is 07.02.2002, which has also been mentioned in her mark-sheet (Ex.P-9c) of class X, but it has not been proved by the prosecution that on the basis of which document, aforesaid date of birth was mentioned in Dakhil Kharij Register (Ex.P-11c) and who got recorded the same. The victim herself admitted in her crossexamination that once she had failed in class XI, therefore, she is again studying in class XI, as also her friend Sheikh Salamuddin also again studying in class XI. Thus, since the victim had failed in class XI and her age at the time of admission in class '1' would have '06' year, therefore, her age on the date of incident comes around 18 years, hence, finding recorded by learned Special Court, that the victim was minor on the date of incident cannot be held proved beyond reasonable doubt. It is further contended that there are material discrepancies in the FIR, statement of victim recorded under Section 164 & 161 of the Cr.P.C, as also before Child Welfare Committee, Korba and the deposition recorded before the trial Court. Even place of alleged incident is unclear , as at one point of time, she stated that incident happened in prayer hall, but in another point to time, she stated that it was happened in School ground, where prayer is held. It is next

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contended that at about 4.45 PM when alleged incident is said to have been taken place, it was closing time of the school, therefore, all the students and teachers were present in the prayer hall of the school, therefore, it was impossible that victim was alone at the place of incident. When and where, she disclosed about the incident to the teachers and her own friends is also contradictory. Parents of victim and her friends, who are classmates of victim, are hearsay witnesses.

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7.1 Learned counsel for the appellant further submits that, FIR was lodged after the delay of 10 days of the incident. None of the teachers of the School even Tarkeshwari Mishra, whom the victim had informed about the incident, has also not been examined by the prosecution. It is contended that in order to prove the charge of sexual harrasment, sexual intent of the accused must be proved, which has not been proved in the instant case. He further submits that being teacher, when appellant had seen the victim and her friends roaming out of the class, then he made to understand them that they have already failed in class XI, hence, they should concentrate in their studies, merely because of this, the appellant has been implicated in a false case. It is lastly contended that the prosecution is completely failed to prove his case, despite that learned Special Court without any cogent & clinching evidence, has convicted the appellant. Hence, he prayed that, instant appeal may be allowed and the appellant may be acquitted of the all the charges. To substantiate his arguments, learned counsel for the appellant placed reliance in the matters of Nirmal Premkumar & Anr. vs. State Rep, by Inspector of Police¹ ; Mohadmmad Saimulla vs. State of Meghalaya and Ors.² , ; Nurai

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2 2022 SCC Online Megh 201

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1 2024 INSC 193

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Sk. vs. State of West Bengal³ ; and Bandu Vitthalrao Borwar vs. State of Maharastra⁴ .

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8. On the other hand, learned counsel for the State/respondent while supporting the impugned judgment would submit that the victim has completely proved the charges levelled against appellant, which also get support from deposition of her parents and classmates of the victim, hence, the appeal is liable to be dismissed.

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9. I have heard learned counsel for the parties, considered their rival submissions made and also went through the record of the trial Court with utmost circumspection.

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10. As per case of the prosecution, victim was minor on the date of incident i.e. 02.01.2019. Victim (PW-1), her father (PW-2) and mother (PW-3) have not stated in their deposition that what was the date of birth of victim, but father of the victim (PW-2) has stated that at the time of his deposition i.e. 18.09.2019, age of victim was 17 years and she is studying in class XII. While recording deposition in the month of September, 2019, victim herself and her mother have also deposed that she (victim) was studying in class XII.

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11. In order to prove the age of victim, Dakhil Kharij Register (Ex.P-11c) pertaining to the victim was seized from Vidhut Grih Primary School, No. 2, Darri, Mansarovar School vide seizure Memo (Ex.P-10), in which, date of birth of victim has been mentioned as 07.02.2002. Aforesaid seizure has been proved by D.S. Diwan (PW-13), retired Dy. Superintendent of Police and Ganesh Ram Kashyap, (PW-4), Head Master of aforesaid school, from whom

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3 2021 SCC Online Cal 2987

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4 2016 SCC Online Bom 16128

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that register was seized. Ex.P-9c is mark sheet of class 10^th of the victim issued by Chhattisgarh Board of Secondary Education, Raipur in the year 2017. Original mark-sheet was seized from father of victim (PW-2) by D.S. Diwan (PW-13), retired Deputy Superintendent of Police vide seizure memo (Ex.P-7). After seizure of original mark-sheet, it was returned by obtaining X- rox copy (Ex. P-9c) of the same, which has been proved by aforesaid witnesses. In the mark-sheet of minor victim of class 10^th also, her date of birth is shown to be 07.02.2002, as has been reflected in Dakhil Kharij Register (Ex.P-11c).

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12. The manner & procedure to determine the age of minor / juvenile has been contemplated in Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (henceforth, JJ Act, 2015), which reads thus :-

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“ 94. Presumption and determination of age -

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(1) xxx xxx xxx

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(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining—

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(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

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Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.”

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13. Hon'ble Supreme Court while emphasizing the aforesaid provision in the cases of Omprakash Vs. State of Union of India5 and Rajni Vs. State of Uttar Pradesh6 has held that age of the minor should be determined according to Section 94 of the JJ Act, 2015, which is a reiteration of Rule 12 of the Juvenile Justice (Care & Protection of Children), Rules, 2007, which mandates the explicit outline, a sequence for determining a person’s age i.e. date of birth certificate from a School, or matriculation / equivalent certificate from the concerned examination Board, if available; and in the absence thereof; a birth certificate given by a Corporation or Municipal Authority or a Panchayat. And only in the absence of above document, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.

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14. In the instant case, though Dakhil Kharij Register (Ex.P-11c) of Primary School of victim has been proved, but apart from that, her marksheet of High School Examination, 2017 {Class X (Ex.P-9c)} has also been seized and proved by the prosecution, which has been issued by Chhattisgarh Board of Secondary Education, Raipur.

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5 Criminal Appeal No. 4229/24, decided on 8.1.2025

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6 2025 LiveLaw (SC) 602

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15. Section 94 (2)(i) of the JJ Act, 2018 provides that date of birth certificate can be proved by filing matriculation certificate or equivalent certificate from the concerned Examination Board. In this regard, mark-sheet of Class X (Ex.P-9c) of victim issued by Chhattiagarh Board of Secondary Education, Raipur has been filed and proved by prosecution, in which, date of birth of victim is mentioned as 07.02.2002, which can be safely relied upon for holding, victim minor on the date of incident i.e. on 02.01.2019 and as per aforesaid date of birth of victim i.e. 07.02.2002, her age was 16 years, 10 months & 26 days on the date of incident, therefore, finding recorded by learned Special Court that the victim was minor on the date of incident is hereby affirmed.

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16. So far as allegation of sexual harassment of victim is concerned, victim (PW-1) has stated in her deposition that on the date of incident, at about 4.30 pm when she was in School, then appellant told her that “I love You” and asked her to give her mobile number. She has further stated that when she said that she will inform the madam, then the appellant/accused went from there, at that time, he has also consumed liquor. She has further deposed that after reaching home, she told about the incident to her mother and on the next day, when she went to School, then she told Tarkeshwari madam (Teacher) about the incident. She has further stated that on the next day, since the Principal of the School was on leave, therefore, she has informed her through whatsapp. In suggestion taken by Additional Public Prosecutor, the victim has admitted that the appellant had also told her that “ he come to school to see her only”. She has also admitted that the appellant was looking at her in a dirty way.

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17. PW-2, who is father and PW-3, who is mother of the victim have also supported the statement of victim that, on the date of incident after coming home in evening, the victim had told them about the incident. Ku. Varsha (PW-6), Nidhi Sahu (PW-8) and Hem Kumari (PW-9) are friends and classmates of the victim, who have also corroborated the statement of the victim, but they are also hearsay witnesses to whom the victim had narrated the incident a few days later. Other witnesses examined by the prosecution are formal witnesses. Thus, the only material witness in this case is the victim herself, while her parents and her friends are hearsay witnesses. Therefore, it is necessary to scrutinize the deposition of victim in light of case of the prosecution case to see whether the conviction of the appellant can be sustained merely on the basis of the sole testimony of the victim.

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18. On perusal of statements made by the victim in various point of time, it is found that there are various discrepancies in the deposition of victim, FIR lodged by her, her statement recorded under Section 164 Cr.P.C. as well as under Section 161 Cr.P.C. and her statement recorded before Child Welfare Committee, Korba, District Korba. In the deposition recorded before the Court, victim (PW-1) has deposed that she informed Tarkeshwari madam about the incident on next day of the incident, whereas, in FIR (Ex.P-1), her statement recorded under Section 164 of Cr.P.C. (Ex.P-4) and in her statement recorded under Section 161 of Cr.P.C. also, she had told that she immediately on the same day informed Tarkeshwari madam about the incident. In deposition, victim has stated that at the time of incident, the appellant had consumed liquor, but this fact was not reveled by her in FIR or her statements recorded under Section 164 Cr.P.C. as well as police statement under Section 161 Cr.P.C.. Though, this fact was stated by her in

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her statement recorded before Child Welfare Committee, Korba on 14.01.2019. That statement annexed with charge-sheet is attested also by the Station House Officer, Anusuchit Jati Kalyan, Korba, District Korba, but in this statement, she had further stated that appellant caught hold of her right hand and pulled her towards himself, then she shook him off and ran away towards her home. She has further stated that on the same day, at about 6 pm, she had told her friend Nidhi (PW-8) about the incident, but aforesaid fact has not been stated by her neither in FIR or statement recorded under Section 164 Cr.P.C. nor in her deposition.

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19. Victim (PW-1) has stated in paragraphs 9 & 10 of her crossexamination that alleged incident occurred in prayer hall, at that time, she was alone in that prayer hall. When she was asked by defence counsel that what she was doing alone in prayer hall, then she stated that she had gone to appellant to ask him, as he was standing in prayer hall. Thus, while alleged act, the appellant went to victim or she herself went to the appellant is also contradictory. As per deposition of victim and her classmates, more than 500 – 600 students studied in that school and after the school time ends, when the bell is rung by the peon, the teachers first go out of the classrooms followed by the students and they go to the prayer hall for the last prayer. When number of students are so huge and alleged incident was said to be happened in prayer hall, then how is it possible that the victim or the appellant would be standing alone at the time of the alleged incident. Whereas, mother of the victim (PW-3) has stated in her cross-examination that the alleged incident occurred when the victim was going to the washroom after coming out of her class.

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20. When such an incident happens to a student (victim) studying in class XI, she usually informs her classmates/friends about the incident on the same day. But victim herself has admitted in paragraph 13 of her crossexamination that she had not informed about the incident to her friends namely Hem Kumari, Nidhi, Varsha, but she had informed her friends about the incident on one day (,d gh fnu) after the incident, but this fact also does not get support from police statement of her friends, because, as per police statements of her aforesaid friends, victim informed Hemkumari (PW-9) on 03.01.2019, Kumari Varsha (PW-6) on 07.01.2019 and Ku. Nidhi Sahu (PW-8) on 4.1.2019.

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21. Alleged whatsapp message through which victim has informed the Principal madam about the incident, has not been seized and proved by the prosecution. On one hand, victim has stated in her deposition that on the next date of incident, Principal Madam was on leave, therefore, she had informed her about the incident through whatsapp, but in paragraph 11 of her cross-examination, she has stated that on next date of incident i.e. on 03.01.2019, Principal Madam had come to school whereas her father (PW-2) has stated that he had talked on mobile phone with the Principal Madam, then she had called her on 7^th January, 2019, on that day, he had gone to School and met Principal Madam. This witness has also stated that on next day of the incident, he had gone to School and met with Tarkeshwari madam. Thus, after how many days from the date of incident, Principal Madam had come to school and victim & her father met to the Principal is also contradictory from deposition of victim and her father. In the instant case, Tarkeshwari Madam and Principal of the School are material witnesses, but none of them have been examined by the prosecution.

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22. In the case of Ganesan vs. State Represented by its Inspector of Police7 , Hon'ble Supreme Court while considering various judgments rendered by it has held that in the cases involving sexual offences, only on the basis of testimony of the prosecutrix, if found to be worthy of credence and reliable, the court may convict the accused without corroboration.

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23. In the matter of Nirmala Prem Kumar & another Vs. State represented by police 8, their Lordships of the Supreme Court while reiterating aforesaid dictum has held in paragraph 15 as under :-

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“15. What flows from the aforesaid decision is that in cases where witnesses are neither wholly reliable nor unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution’s case. While the victim’s testimony is usually enough for sexual offence cases, an unreliable and insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded.”

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24. Applying the ratio of law laid down by Hon'ble Supreme Court in afore-cited cases to the facts of the instant case, it is quite vivid that there are material discrepancies and contradictions / omissions in the deposition of

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7 2020 (10) SCC 573

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8 Criminal Appeal No. 1098 of 2024

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victim, FIR (Ex.P-1), her statement recorded under Section 164 Cr.P.C. / 161 Cr.P.C. and her deposition recorded by Child Welfare Committee, Korba. Alleged incident took place after the school classes were over, that too before the evening prayer when all the students and teachers gathered in the prayer room where the incident allegedly took place, so it appears impossible that the victim was alone in the prayer hall at the time of the alleged incident, whereas, as per her mother at the time of incident, the victim was going to washroom after coming out from class room. Victim did not tell about the incident to her friends / classmates on the same day and when she informed them is also contradictory. Even, when she informed about the incident to Tarkeshwari madam (Teacher) of the School is also contradictory from her own deposition, FIR and other statements. That apart, Tarkeshwari madam and Principal of that School have not been examined by the prosecution.

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25. While making submission, learned counsel for the appellant had argued that since victim and her friends Sheikh Salamuddin had failed in class XI and both of them again studying the same class and while seeing them roaming, the appellant had made to understand them to concentrate their studies, as they have already failed in class XI. Therefore, victim has lodged FIR against him cannot be ruled out, though the victim has denied that suggestion, but having considered the aforesaid discrepancies in probabilities truthfulness of that suggestion cannot be completely ruled out.

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26. In view of foregoing discussion, it is found that conviction of the appellant cannot be sustained only on the basis of sole testimony of victim, as it is not found to be trustworthy and reliable. Thus, it is apparent that , evidence adduced by the prosecution to prove the charges of sexual harrassment levelled against the appellant is unreliable at all, despite that

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learned Special Court has held him guilty for the alleged offences, which is completely perverse and against the evidence available on record, hence, conviction of the appellant for the offence under Section 354 (A) of IPC and Section 12 of the POCSO Act, being unsustainable, deserves to be set aside.

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27. The victim belongs to the Scheduled Caste category, which is proved by her statement and that of her father (PW-2), supported by her caste certificate (Ex.P-8C), which is also proved by Rajesh Kumar Soni (PW-11), who is Assistant Grade-II of office of Sub Divisional Officer, Abhanpur, from where that certificate was issued. But appellant does not belong to that category, rather he belongs to OBC category. Since charge of sexual harassment levelled against the appellant has not been proved by the prosecution, therefore, holding guilty by Special Court to the appellant for the offence under Sections 3 (1)(W) and 3(2)(Va) of the SC/ST Act are also not found to be sustainable, as the prosecution has utterly failed to prove the main allegation of sexual harassment against the appellant.

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28. Thus, the evidence adduced by the prosecution to prove the charges against the appellant is neither sufficient nor reliable, despite that learned trial Court on the basis of such untrustworthy, insufficient & unreliable evidence of the prosecution, has held appellant guilty for the alleged offenes, therefore, this appeal is apt to be allowed.

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29. This Court, thus, inclined to deem this case unsuitable for securing a conviction of the appellant under Sections 354 (A) of IPC as well as Section 12 of the POCSO Act and Section 3 (1)(W) and 3(2)(Va) of the SC/ST Act. Therefore, for the forgoing reasons, impugned judgment of conviction and order of sentence dated 10.03.2022 passed by the learned Special Judge

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under POCSO Act is liable to be and is hereby set aside and the appellant is acquitted of all the charges.

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30. The appellant is reported to be on bail, his bail bonds shall remain in force for a further period of six months in view of the provisions contained in Section 481 of the BNSS, 2023

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31. Let copy of this judgment along with record of the court below be sent back forthwith for compliance and needful.

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Sd/-

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(Naresh Kumar Chandravanshi)

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Judge

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Digitally
amit AMITKUMARDUBEY signed byAMIT KUMARDUBEYDate:2025.10.1309:30:19
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Kaushlendra Rathore v. State of Chhattisgarh

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Kaushlendra Rathore v. State of Chhattisgarh

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