Panchuram Netam Vs State of Chhattisgarh

1. Heard Mr. Ashutosh Singh Kachhawaha, learned counsel, appearing on behalf of the appellant as well as Mr. Shailendra Sharma, learned Panel lawyer appearing on behalf of the State/respondent.

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2. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the judgment of conviction and order of sentence dated 25.11.2023

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passed by Additional Sessions Judge, Fast Track Special Court (POCSO), Gariyaband, Chhattisgarh in POCSO Case No.79/2021 whereby the appellant has been convicted and sentenced as

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under:

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C	onviction		Sentence
Under the Code,	Section 363 of Indian Penal 1860	Rigorous fine of Rs of fin imprisonm	imprisonment for 2 years and .1,000/-, in default of payment e, additional rigorous ent for 1 month.
Under the Code,	Section 366 of Indian Penal 1860	Rigorous fine of payment imprisonm	imprisonment for 5 years and Rs.2,000/-, in default of of fine, additional rigorous ent for 1 month.
Under	Section 506	Rigorous	imprisonment for 1 year and
Part-II Penal	of the Indian Code, 1860	fine of payment imprisonm	Rs.1,000/-, in default of of fine, additional rigorous ent for 1 month.
Under	Section 6 of	Rigorous	imprisonment for 20 years
the Childr Offenc	Protection of en from Sexual es Act, 2012	and fine payment imprisonm	of Rs.5,000/-, in default of of fine, additional rigorous ent for 1 month.

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All the sentences were directed to run concurrently.

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3. Learned State counsel submits that notice issued to the father of the prosecutrix/victim (PW-7) has been served, but none has appeared on behalf of the complainant to contest the present appeal.

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4. Brief facts of the case are that, on 08.09.2021, the prosecutrix/victim (PW-1) made a written complaint before the Police Station Shobha to the effect that she know the accused

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Panchuram Netam before 3-4 years, who used to visit her house. The accused came to her house before three years when her parents were not at home and he used to talk to her lovingly, and when she refused, he used to threaten her and due to fear, she did not tell anything to her family members. She further alleged that in the year 2019, on the night of Dussehra festival, he lured her on the petext of marriage, took her to the forest and forcibly made physical relations with her. Thereafter, every week or fortnight, he called her to the forest and raped her continuously. On 04.09.2021 at about 5:00 PM, he called her and asked her to meet outside the village, she went there, he stated to run away and promised her to marry and when she refused, he threatened her to kill as also her family members and forcefully took her to Kokadi forest where he raped her continuously from 04.09.2021 to 06.09.2021. She returned her home at about 10:00 AM on 06.09.2021, when her family members asked her about going somewhere, she told her mother about the incident and a report was filed against Panchuram Netam vide Ex.P/1. On the basis of the said written report, First Information Report (Ex.P/2) was registered on 08.09.2021 for the offence punishable under Sections 366, 376 (3), 506 of the Indian Penal Code, 1860 (for short, ‘IPC’) and Sections 4, 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and the case was taken into investigation. The crime details form was prepared vide Ex.P/3. Spot map and Panchnama were prepared vide

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Ex.P/4 and Ex.P/5, respectively. Underwear and mobile of the prosecutrix were seized vide Ex.P/6 and Ex.P/7, respectively. Notice under Section 91 of the Cr.P.C. was given vide Ex.P/8 and Ex.P/10, respectively. Statement of the prosecutrix under Section 164 of Cr.P.C. was recorded vide Ex.P/9. After consent (Ex.P/19), prosecutrix was sent for medical examination, which was conducted by Dr. B. Bara (PW-5) and gave its report vide Ex.P/14. On 09.09.2021, lady constable Madhuri Yadav brought the sealed packet given by the doctor from the hospital and presented it, the underwear belonging to the victim in a sealed packet and the slide in another sealed packet were seized in front of witnesses. In this case, a complaint was written to the Superintendent of Police, Gariyaband for certificate under Section 65-B of the Evidence Act for the seized mobile and the call details of the mobile were obtained. On 10.09.2021, a complaint was written to CHC Mainpur for examination of the accused and the report was received after examination by the doctor and a complaint was written to CHC Mainpur for physical and private parts examination of the accused. After the seizure, a complaint was written to CHC Mainpur for testing the underwear and after examination by the doctor, the report was received. Constable Vijay Yadav brought the sealed packet given by the doctor from the hospital and presented it, the underwear belonging to the accused in a sealed packet was seized in front of witnesses vide Ex.P/24. A black colour keypad mobile was seized from the accused in front of

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witnesses vide Ex.P/25. The accused was arrested in front of witnesses vide Ex.P/31 and information regarding the arrest was given to the family of the accused vide Ex.P/32. On 21.09.2021, the Headmaster, Government Primary School Boraideh was given a notice under Section 91 Cr.P.C. to present the admissiondischarge register relating to the date of birth of the victim, which was seized vide Ex.P/11 and a copy of which is marked as Article 1C. Class-V mark-sheet of the prosecutrix was seized vide Ex.P/20 and a copy of mark-sheet of Class-V of the prosecutrix was marked as Article 3. After seizure of the items, the seized items were sent for its chemical examination to FSL vide Ex.P/36 and FSL report was sought from the forensic expert vide Ex.P/38, which was found to be negative.

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5. Statements under Section 161 of the Cr.P.C. of the witnesses were recorded by the police and the statement of the prosecutrix under Section 164 of the of the Cr.P.C. was also recorded. After completing the entire investigation, charge-sheet was filed before the First Additional Sessions Judge, Fast Track Special Court, Special Court (POCSO), Gariyaband, Chhattisgarh for the commission of offence punishable under Sections 366, 376(3), 506 of the IPC as well as Sections 4, 6 of the POCSO Act.

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6. The trial Court has framed charges under Sections 363, 366, 506 Part-II of the IPC as well as Section 6 of the POCSO Act. During trial, the prosecution has examined as many as 9 witnesses and

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exhibited 38 documents Exs. P/1 to P/38 as well as 3 articles as Articles-1C to 3.

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7. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the second paragraph of this judgment. Hence this appeal.

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8. 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 there are so many contradiction and omission in the statement of the prosecution witnesses. 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 has accompanied the appellant, 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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9. 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 and 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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10. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection.

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11. 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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12. In order to consider the age of the prosecutrix, we have examined the evidence available on record. The prosecution has mainly relied upon Dakhil-kharij Register (Article-1C), statements of prosecutrix herself (PW-1), father of the prosecutrix (PW-7), Narottam Lal Sahu (PW-2), Assistant Teacher, Government Primary School, Boeirdih, Police Station Shobha and Jameshwar Das Bharti (PW-3) Assistant Teacher of Government Primary School, Sambalpur, Police Station Gariyaband. According to the Dakhil-kharij Register (Article-1C), the date of birth of the prosecutrix is 20.10.2006.

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13. The prosecutrix (PW-1) has deposed in her statement that she studied at Class-X and her date of birth is 11.10.2006. In crossexamination, she does not narrate anything about her age.

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14. Likewise, father of the prosecutrix (PW-7) has deposed in his evidence that he did not know the exact date of birth of her daughter. He further deposed that he does not remember how old her daughter/victim at present and he has two children of whom the victim is the eldest. Her daughter/victim has studied up to Class-X. In cross-examination, he deposed that his daughter is

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aged about 15 years and he did not admit her in the school. He produced the mark-sheet of Class-V of his daughter to the Police. He admitted that he do not even know how many years have passed since his marriage as well as he admitted that he has not got her daughter/victim enrolled in school as also he admitted that he cannot tell on which date her daughter/victim's Class-V marksheet was given to the Police. He also admitted that nowhere in Article-3, the year or date has been mentioned as to assume that in which year her daughter/victim passed Class-V as well as he do not know in which year her daughter passed Class-X. He further admitted that it is not mentioned anywhere in his police statement that his daughter's age was 15 years as he has given it roughly.

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15. Narottam Lal Sahu (PW-2), Assistant Teacher, Government Primary School, Boeirdih, Police Station Shobha has deposed in his evidence that he was posted at Government Primary School, Boeirdih till the year 2014 and according to Dakhil-kharij register (Article-1C), date of birth of prosecutrix was 20.10.2006.

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16. Jameshwar Das Bharti (PW-3) Assistant Teacher of Government Primary School, Sambalpur has deposed that as per Admission Register Serial No.64 of the Dakhil-kharij Register, the date of birth of the prosecutrix is 20.10.2006. In cross-examination, he has deposed that parents of the prosecutrix did not bring any material relating to the age i.e. birth certificate at the time of

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admission of the prosecutrix in the school, but the age of prosecutrix was told by his father at the time of admission in Class-I.

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17. 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 statement of the prosecutrix (PW-1), her father (PW-7) as also the statements of Narottam Lal Sahu (PW2), Assistant Teacher of Government Primary School, Boeirdih, Police Station Shobha and Jameshwar Das Bharti (PW-3) Assistant Teacher of Government Primary School, Sambalpur are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the prosecutrix is 20.10.2006.

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18. In the matter of Ravinder Singh Gorkhi Vs. State of UP, (2006) 5 SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604 , the Hon’ble Supreme Court has held as under :-

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“26. To render a document admissible under Section 35, three conditions must be

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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 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."

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19. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385 , has observed as under:

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"40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of

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not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.

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

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"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the

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two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."

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

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

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44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The

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Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl.

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48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:-

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"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the

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Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

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20. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &

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Others, 2022 (8) SCC 602 , while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under:-

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

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

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33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

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33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

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33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the

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age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance.

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33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.

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33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.

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33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.

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33.9. That when the determination of age is on the basis of evidence such as school

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records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have

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greater credibility than private documents.

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33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.

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33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."

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21. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846 , Hon'ble Supreme Court has held in para 14 to 17 and 19 as under :

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"14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the

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absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.

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15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the

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erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:

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

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

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Pradesh & Ors that:

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"Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate fromthe school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.

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17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that

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would be accepted in order of preference.

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19. It is clear from the above narrative that none of the documents produced during the trial answered the description of “the date of birth certificate from the school” or “the matriculation or equivalent certificate” from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim’s age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating “that the age of the said girl would be more than 18 years and less than 20 years”. In the cross-examination, she admitted that M’s age could be taken as 19 years. However, the High Court rejected this evidence, saying that “when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor”. This finding is, in this court’s considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94 (2) (i) mandates; nor are they in accord with Section 94 (2) (ii) because DW-

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1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X- Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim’s bones, stage of their development and opined that she was between 18-20 years; in crossexamination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9."

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22. Reverting to the facts of the present case. the prosecutrix (PW-1) has stated in her deposition that her date of birth is 11.10.2006. Likewise, her father (PW-7) has deposed that the age of the prosecutrix was 15 years, but he could remember the exact date of birth of the prosecutrix.

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23. Likewise, Narottam Lal Sahu (PW-2), Assistant Teacher, Government Primary School, Boeirdih, Police Station Shobha has deposed in his evidence that he was posted at Government Primary School, Boeirdih till the year 2014 and according to Dakhil-kharij register (Article-1C), date of birth of prosecutrix was 20.10.2006. Jameshwar Das Bharti (PW-3) Assistant Teacher, Government Primary School, Sambalpur though has admitted that

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in the Dakhil-kharij Register (Article-1C), date of birth of the prosecutrix has been mentioned as 20.10.2006, but in crossexamination, he has deposed that parents of the prosecutrix did not bring any material relating to the age i.e. birth certificate at the time of admission of the prosecutrix in the school, but the age of prosecutrix was told by his father at the time of admission in Class-I.

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24. 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 prosecutrix herself (PW-1), father of the prosecutrix (PW-7), Narottam Lal Sahu (PW-2), Assistant Teacher, Government Primary School, Boeirdih, Police Station Shobha and Jameshwar Das Bharti, (PW-3) Assistant Teacher, Government Primary School, Sambalpur, Police Station Gariyaband and also Dakhilkharij Register (Article-1C) 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 (Article-AC) 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

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produced the relevant record on the basis of which her date of birth recorded in the said register. The evidence produced by the 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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25. The next question for consideration would be whether the appellant has committed rape upon her or not ?

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26. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon'ble Supreme Court has considered the taking and allowing a minor to accompany a person and has held in Para 9 and Para 10 of its judgment that:-

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“9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not

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think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

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

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27. The prosecutrix (PW-1) has deposed in her evidence that one year before, the accused kidnapped her from Kokadi village and

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promised her to marry. The accused took her to the Kokadi forest and kept her for three days. The accused had committed sexual intercourse with her three times in the forest. After going home, she narrated the incident to her parents. Then, she along with her father and maternal uncle went to Shobha police station and lodged a report against the accused. Thereafter, police brought her to the hospital at Gariaband where she was examined. She further deposed in paragraph-5 of her evidence that in the year 2019, on the night of Dussehra, the accused took her to the forest of the village and by luring her with marriage, forcefully committed sexual intercourse with her and after that, the accused used to come to her village every fortnight and take her to the forest and made physical relations with me. She also deposed that from 04.09.2021 to 06.09.2021, the accused kept her in the forest of Kokadi and committed forceful sexual intercourse with her several times. In cross-examination, she admitted that she and accused went to the jungle on foot and the accused did not take her by force. She has been declared hostile by the prosecution.

¶129

28. Father of the prosecutrix (PW-7) has deposed in his evidence that before three years, the accused took her daughter/victim to Kokadi and raped her. Thereafter, her daughter/victim lodged a report at Police Station Shobha. He further deposed that three years before, the accused took her daughter/victim to Kokadi jungle and raped her, thereafter, her daughter/victim filed a report at Shobha Police Station. Though the Police has taken consent,

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but did not take the victim to any hospital for medical examination. He further deposed that though the seizure memo Ex.P/7 has been prepared, but the Police did not seize any items. The prosecution has declared him hostile. He furhter deposed that on 04.09.2021, in the evening, her daughter/victim went somewhere without telling anyone and after that, we searched for her in the surrounding area, but she was not found. On Monday, 06.09.2021, at around 10 o'clock, her daughter/victim returned home and when he asked her, she told that in the year 2019, during the Dussehra festival, the accused found her alone at night, lured with marriage and took bher to the forest of the village and forcibly made physical relations with her. Thereafter, once in a week or 15 days, the accused used to call her to the forest outside the village and forcibly committed physical relationship with her. In cross-examination, he admitted that the accused did not take her daughter/victim to the jungle. He further admitted that the Police did not confiscate any items from him and when her daughter/victim returned home on 06.09.2021, she did not tell anything about the incident happened to her.

¶132

29. Dr. B. Bara (PW-5) has deposed in her statement that the prosecutrix was brought before her for medical examination on 09.09.2021 at about 12:00 Noon. She found following injuries:-

¶133

“ Identification mark:- There was a black mole mark on the chin of the victim.

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General examination:- The victim was fully conscious and understood everything. Her age was normal. Her secondary sexual characteristics were not fully developed. There was no injury or scratch on the external part of the victim's body. The victim had her first menstruation at the age of 12 years and it was regular for four to five days. The victim had told that the accused had established physical relations with her six months ago. The victim had told about the Panchuram of the accused and told that she knew him from before. The victim had changed her undergarments and had urinated and defecated before the examination.

¶136

Genital examination:- The victim's genital hair was present but was not fully developed. Her hymen was old one, torn and healed. There were no marks of injury or scratch on the external part of the victim's private parts. She prepared two slides from two stick swabs from the victim's vaginal discharge and sealed them and handed them over to the same constable for chemical examination. She did the victim's blood test for HIV, VDRA, HBsAg, which was negative. During the same time, she also took the victim's urine test. Pregnancy test was done which was negative. The victim told that her age was 14 years, therefore, X-ray was advised for ossification to check her age and she was referred to Medical College Raipur for radiologist.

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Opinion:- According to her, sexual intercourse had taken place with the victim. But she did not find any sign of sexual intercourse immediately. No injury mark was found on the external part of the genitals.

¶139

30. Further, seized articles were sent for its chemical examination to FSL and according to the FSL report (Ex.P/38), semen stains and human sperm were not found on the given articles. As such, FSL report is found to be negative.

¶140

31. 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 went along with the appellant because while she has not made any complaint to anyone and has not raised any alarm while she was in the house. 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.

¶141

32. 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

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testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do so in the instant case.

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33. 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 and the appellant is entitled for benefit of doubt.

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34. In the result, the appeal is allowed . The impugned judgment of conviction and order of sentence dated 25.11.2023 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail. He be released forthwith, if not required in any other case.

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35. 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.

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36. 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/-

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(Amitendra Kishore Prasad) Judge

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Sd/- (Ramesh Sinha) Chief Justice

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Yogesh

Panchuram Netam v. State of Chhattisgarh

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Panchuram Netam v. State of Chhattisgarh

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