Devlal Khairwar Vs State of Chhattisgarh

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CRA No.600 of 2024

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Digitally
signed by
JYOTI
JYOTI SHARMA
SHARMA Date:
2025.10.15
17:48:51
+0530

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2025:CGHC:51108-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 600 of 2024

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Devlal Khairwar S/o Premlal Aged About 31 Years (only Mentioned As Devlal In Impugned Order) R/o Vill. Mudiya, P.S. Raghunathnagar, Distt. Balrampur- Ramanujganj, Chhattisgarh

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... Appellant(s)

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versus

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State Of Chhattisgarh Through P.S. Raghunathnagar, Distt. BalrampurRamanujganj, Chhattisgarh

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... Respondent(s)

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(Cause-title taken from the Case Information System)

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For Appellant(s) : Mr. Gyan Prakash Shukla, Advocates For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer

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Hon’ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board

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Per, Bibhu Datta Guru, J

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14/10/2025

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The criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 21.02.2024 passed in Special Sessions Case No. 16/2020 by the learned Additional Session Judge (Fast Track Court), Ramanujganj, District Balrampur Ramanujganj C.G., whereby the

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appellant has been convicted and sentenced as under :-

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Conviction	Sentence
U/s 363 r/w 34 of the IPC	Rigorous imprisonment for 05
	year along with fine of Rs. 1,000/- with default stipulation.
U/s 506(Part-II)of IPC	R.I. for 1years
U/s 376 (3) of IPC r/w section	R.I. for 20 years and fine of Rs.
4 of the POCSO Act	15,000/- with default stipulation.

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All the sentences are directed to run concurrently

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Case of the prosecution, in brief, is that on 14.05.2020, the father of the victim (PW9) gave a written complaint Ex.P.12 at Raghunath Nagar police station alleging, inter alia, that his minor daughter/victim, aged about 16 years old was seen protruding, his wife and he inquired about the said matter and the victim informed that in the year 2018, on a Sunday, when she was returning home from Mudia Bazar, the appellant Devlal Khairwar lured her on the way; took her under the bridge; raped her; and threatened to kill her if she told anyone about the said matter. Thereafter, when the appellant was questioned about the said matter, he accepted his mistake and said that he would keep the victim with him and the victim was taken to his house and in the month of March 2019, the victim gave birth to a girl child and after a few days, the appellant drove the victim out of the house and refused to keep the victim with him. On the basis of the said complaint, a First Information Report (Exhibit P/10) was lodged against the appellant bearing Crime No. 41/2020 under Sections 376 (2) (j),

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506 of the Indian Penal Code and Sections 4, 6 of the Protection of Children from Sexual Offences Act.

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During investigation, Spot Map was prepared. With regard to date of birth of the Victim, Dakhil Kharij register (Ex.P/6C) was seized, blood samples of the newborn baby, the victim and the accused were taken in connection with the DNA test and identification forms were taken respectively. Blood samples of the newborn baby, the accused and the victim were also seized. DNA profile test of seized articles was conducted, whose report was received vide Ex.P-11 from the State Forensic Science Laboratory. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court.

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After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial.

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In order to bring home the offence, the prosecution has examined 9 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C were recorded, wherein they had pleaded their innocence and false implication in the matter.

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The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 21.02.2024 convicted and sentenced the appellant as mentioned in paragraph one of

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this judgment. Hence, this appeal.

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Learned counsel for the appellant submitted that the learned Trial Court has committed material irregularities and legal infirmities of substantial magnitude in passing the impugned judgment of conviction and sentence, which deserves to be set aside. It was contended that the Court below failed to properly appreciate the material documentary as well as oral evidence available on record and has arrived at an erroneous finding. It was further argued that the prosecution has not been able to prove its case beyond reasonable doubt. The learned counsel emphasized that the formal proof of a document and its probative value are distinct, and in the present case, the prosecution has not established the source of information on the basis of which entries were made in the school register, thereby rendering such evidence unreliable. It was also submitted that both the appellant and the prosecutrix belong to the Scheduled Tribe community, and their marriage was solemnized in accordance with local customs. They lived together as husband and wife, and only due to subsequent matrimonial disputes, the prosecutrix left the matrimonial home, leading to registration of the present case, and the present appeal deserved to be allowed.

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Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for

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any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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The question arises before this Court whether the victim was minor on the date of incident or not?

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The Victim (PW1) in her deposition has stated that she did not know her date of birth and her age at the time of the incident was 14 years. Mother (PW5) of the Victim has deposed in his deposition that the Victim was aged about 16 years on the date of incident which is corroborated with the statement of father of the victim (PW-9).

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Smt. Bhagwati Dubey (PW-2), Headmaster of the School has stated in her deposition that she had produced the Dakhal Kharij register related to the victim before the police. She has stated that according to the Dakhil Kharij register Ex.P/6C, the date of birth of the prosecutrix was recorded as 16.09.2003 and it was recorded only on the information given by the parents. This witness has denied the suggestion that the entry of date of birth was made on the basis of assumption. Statement of these witnesses remains totally unchallenged during cross-examination.

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From the evidence on record, it is established that the victim was

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a minor at the time of the incident. The victim (PW-1) herself stated that she did not know her exact date of birth but affirmed that she was 14 years old at the time of the incident. Her mother (PW-5) corroborated this by deposing that the victim was about 16 years old on the date of the incident, which is further supported by the statement of the victim’s father (PW-9). Additionally, Smt. Bhagwati Dubey (PW-2), Headmaster of the school, deposed that as per the Dakhil Kharij register (Ex.P/6C), the date of birth of the victim was recorded as 16.09.2003, and clarified that this entry was not based on any assumption. Thus, considering the school record and oral testimonies, it is conclusively proved that the victim was below 18 years of age on the date of the incident and therefore a minor.

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14. The next question for consideration would come, whether the appellant committed such heinous act with the Victim or not?

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PW-1 the prosecutrix stated that she knew the accused, Devlal Khairwar, who belonged to her village. She deposed that while returning from the weekly market at Mudhiya around 7:00 p.m., the accused intercepted her near a bridge, gagged her with a cloth, dragged her under the bridge, threw her on the ground, and forcibly committed rape upon her. After the incident, the accused threatened to kill her if she disclosed the matter. Out of fear, she did not inform anyone initially, but later, upon noticing signs of pregnancy, she informed her mother, who then told her father.

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Subsequently, the appellant, along with four others, came to her house and forcibly took her to his home, where she gave birth to a girl child in 2019. She further stated that after some time, the appellant expelled her from his house, following which she returned to her parents and lodged a report at Police Station Raghunath Nagar.

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In her cross-examination, the prosecutrix stated that a weekly market is held every Sunday at Mudhiya, which usually starts around 3:00 p.m. and continues till about 7:00 p.m. She admitted that people from nearby villages, around ten to twelve in number, come to the market. She stated that the place of occurrence, i.e., the bridge, is situated at a distance of about 150 meters from her house, which lies along the road near the court premises. She further stated that the weekly market is held in front of the school and not immediately adjoining the bridge, though it is located at some distance from it. She admitted that prior to lodging the report dated 14.05.2020, she had not made any complaint to anyone regarding the incident. She denied the defence suggestion that the appellant, Devlal, did not catch her near the bridge, did not drag her beneath it, and did not commit rape upon her, or that he had not threatened to kill her. She further denied the suggestion that she had made false allegations against the accused with the intention to falsely implicate him.

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PW-5 mother of the victim stated that the incident occurred

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approximately two years ago. The victim's stomach began to swell, so she asked her why it was bulging. On which the victim told her that one day when she had gone to the market and while returning from there, the appellant Devlal on the way caught her and raped her after threatening to kill her.

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PW-9 father of the victim stated that the victim is his daughter and is currently approximately 18 years old. He further stated that in 2019, the victim's mother informed him over the phone that the victim was pregnant. He further stated that he subsequently returned home from another village and inquired with the victim about the incident. The victim told him that one day in 2018, while she was returning home from Mudia Bazaar, the appellant, Devlal, emerged from a bush on the roadside, covered her mouth with a cloth, took her under a bridge, raped her, and then threatened to kill her if she told anyone. He further stated that approximately eight days later, the appellant Devlal, came to his house and took the victim to his home, promising to keep her as his wife. For approximately one month, the victim subsequently gave birth to a daughter, and approximately a month after the birth, the victim was driven out of her home. Thereafter, he took the victim to Raghunath Nagar police station and filed a written complaint against the accused, Ex.P. 12.

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From the material available on record, it appears that to ascertain the fact regarding the biological parents of the newly born girl

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child, the blood samples of accused (1621 A); victim (1622 B); and newly born girl child (1623 C) were taken and thereafter, the same were sent for DNA test, who after examined submitted its report vide Ex.P/11 and categorically opined that the appellant (1621 A) and victim (1622 B) are the biological father & mother of the newly born girl child (1623 C).

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It is settled principle that if the testimony of the victim is trustworthy and totality of the circumstances appearing on the record of the case disclose that the victim does not have a strong motive to falsely implicate the person charged, the Court should ordinarily have no hesitation in accepting her/his evidence.

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The Supreme Court in the matter of Rai Sandeep alias Deenu v. State (NCT of Delhi) , 2012 (8) SCC 21 held as under:-

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“22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement

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and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more recise, the version of the said witness on the core spectrum of the crime should remain intact

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while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

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Also, the Supreme Court in the matter of State of Maharashtra vs Chandraprakash Kewal Chand Jain, 1990 SCC 550 held as under:-

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“ A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or practice incorporated in the Indian Evidence Act, 1872 (in short ‘Evidence Act’)

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similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. ”

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Recently the Supreme Court in the matter of Nirmal Premkumar (supra) has held at para 14 & 15 as under:-

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“14. Krishan Kumar Malik v. State of Haryana, this Court laid down that although the victim's solitary evidence in matters related to sexual offences is generally deemed sufficient to hold an accused guilty, the conviction cannot be sustained if the prosecutrix's testimony is found unreliable and insufficient due to

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identified flaws and lacunae.. It was held thus:

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"31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.

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Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won

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over by the appellant."

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What flows from the aforesaid decisions is that in cases where witnesses are neither wholly reliable nor wholly 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, out 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 the oral testimony, without creating any doubt qua the prosecution's case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or 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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In the aforesaid decision, the Supreme Court observed that the Court can rely on the victim as a "sterling witness" without further corroboration, out 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 the oral testimony, without creating any doubt qua the prosecution's case.

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Reverting to the case in hand, the consistent and corroborated

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testimonies of the prosecutrix (PW-1), her mother (PW-5), and her father (PW-9), as well as the conclusive DNA report (Ex.P-11) establishing the appellant and victim as the biological father and mother of the newly born girl child, there is no reason to disbelieve the prosecution version. The delay in lodging the FIR has been satisfactorily explained by the prosecutrix, who, being under threat and fear, refrained from disclosing the incident until signs of pregnancy became visible. The prosecutrix’s account of the incident is detailed, natural, and remains unshaken despite cross-examination. The version of events is further supported by the immediate family members, who have narrated the circumstances consistently.

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Further, a pivotal piece of evidence that goes to the very root of the matter and overwhelmingly supports the prosecution's case is the DNA report marked as Ex.P-11 , which establishes with scientific certainty that the appellant is the biological father of the child born to the prosecutrix. The DNA profiling was conducted during the course of investigation, using accepted and established scientific procedures. The results, which are precise, objective, and devoid of any subjective interpretation, clearly confirm the appellant’s paternity. This scientific finding is not merely corroborative but is crucial to the adjudication of the charge under Section 376 IPC, as it directly links the accused to the act of sexual intercourse alleged by the victim. In cases of rape where

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conception and child birth result, DNA profiling serves as an irrefutable piece of evidence to establish the occurrence of sexual relations and the identity of the offender. The legal system has increasingly recognized the evidentiary superiority of DNA testing in criminal trials. DNA evidence is classified as conclusive unless effectively challenged, and its probative value far exceeds that of mere circumstantial or testimonial evidence. The report in the present case, based on the DNA samples of the prosecutrix, the child, and the appellant, was prepared by a competent forensic laboratory and has not been challenged either on procedural or substantive grounds.

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In the instant case, the appellant has categorically denied any sexual contact with the prosecutrix. He has not taken any defence of consensual relationship nor has he provided any alternate explanation for the positive DNA match. This silence and failure to offer any plausible rebuttal further strengthens the evidentiary value of the DNA result. It is well-settled that when a fact is proved by a scientific method like DNA analysis, and no valid explanation is offered by the accused to counter such evidence, the inference of guilt becomes overwhelming. The DNA report, being an objective and neutral piece of scientific evidence, also rules out the possibility of false implication or fabrication, especially in a case where the prosecutrix has consistently maintained her version of sexual assault under coercion and

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threat. The presence of such strong forensic evidence reinforces the credibility of the prosecutrix’s statement and renders the denial by the appellant implausible. Furthermore, the DNA evidence must be appreciated in the totality of circumstances. The prosecutrix (PW-1), a village girl, stated that the appellant, who was known to her, had forcibly raped her near a bridge while returning from the weekly market. She did not immediately disclose the incident out of fear, but when her pregnancy became visible, she informed her mother (PW-5), who in turn informed her father (PW-9). Both parents have corroborated this sequence in their depositions. Eventually, the appellant himself came to the prosecutrix’s house with others and forcibly took her away to his own home, where she gave birth to a child in 2019. The narrative is consistent, the delay is explained, and the testimonies are supported by scientific proof. In light of the above, the DNA report is not merely corroborative but is central to establishing the truth of the prosecutrix’s allegations. It scientifically proves the physical relationship between the appellant and the prosecutrix resulting in childbirth, thereby lending strong credence to the allegation of rape. When such conclusive scientific evidence is read together with the consistent oral testimony of the prosecutrix and her family members, and in absence of any plausible defence or rebuttal by the appellant, the case against the appellant stands proved beyond reasonable doubt.

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In view of the foregoing reasons, this Court finds no infirmity in the findings and conviction recorded by the learned trial Court and comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentence as awarded by the trial Court is hereby upheld. The present appeal lacks merit and is accordingly dismissed .

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Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing the jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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

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

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Jyoti

Devlal Khairwar v. State of Chhattisgarh

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Devlal Khairwar v. State of Chhattisgarh

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