Bhagwat Prasad v. State Of Chhattisgarh

Chhattisgarh HC17 Feb 2025CRA/95/2016

Case brief

AI extract

What is this about?

Age determination from school register; evidentiary value of school record without examining its author; overwriting in date-of-birth entry; ossification/birth certificate hierarchy; sterling witness test; sole testimony of rape victim must inspire confidence; benefit of doubt; acquittal in POCSO/IPC kidnapping-rape case; absence of external injuries and FSL report; Section 481 BNSS 2023 continuation of bail bonds; Chhattisgarh High Court 2025 CRA appeal.

What did the court decide?

Appeal allowed; impugned judgment of conviction and sentence dated 30.11.2015 set aside; appellant acquitted of all charges; his bail bonds to continue for a further period of six months in view of Section 481 of BNSS, 2023; trial court record to be sent back for compliance. ¶107

Bhagwat Prasad Vs State Of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether, on the date of the incident, the victim was a minor, i.e. less than 18 years of age. +1 more

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Court's answer

PW-13 (Headmistress) is not the author of the school register Ex. P/13C and there is no evidence of the basis on which the victim's date of birth was recorded in it; she admitted overwriting on the date and that she was not posted when the victim was admitted.

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Ratio / Principle

Considering the overall evidence (victim's own uncertain DOB statement sourced from her mother, mother's ignorance of Kotwari Panji recording, father's admission of admission by traditional method, non-production of the Kotwari register and the hospital birth certificate), it would not be safe to hold that the victim was minor on the date of incident, yet the trial Court held her minor.

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Key takeaways

The victim raised no alarm or protest, received no injuries, did not disclose the incident in the market or to her cousin sister, and accompanied the appellant to the market and back after the alleged rape, which shows she was a consenting party; she cannot be termed a witness of sterling quality, which is required for holding conviction.ratio¶91
Though conviction in rape cases can rest on the sole testimony of the victim without corroboration, that testimony must inspire confidence; if her statement is not believable the accused cannot be convicted, and the prosecution must prove the charges beyond reasonable doubt, which it failed to do.ratio¶105

Detailed headnote1 paragraphs

CRA No. 95 of 2016 (High Court of Chhattisgarh, Bilaspur, 18.02.2025, Ravindra Kumar Agrawal J.) — Appeal against conviction and sentence dated 30.11.2015 passed by the Special Judge (SC/ST Prevention of Atrocities), Surajpur, in Special Sessions Case No. 46/2014 under Sections 363, 366, 376(2)(i) IPC and Section 4 POCSO Act, 2012 — Allowed; conviction set aside and appellant acquitted for benefit of doubt. (i) Age: school register Ex. P/13C could not fix the victim as minor — the Headmistress (PW-13) was not its author, the basis of the date-of-birth entry was unproved, overwriting existed, and the Kotwari Panji and hospital birth certificate were not produced; principles in Alamelu (2011(2) SCC 385), Rishipal Singh Solanki (2022 (8) SCC 602) and P. Yuvaprakash (2023 SCC OnLine SC 846) applied. (ii) Credibility: victim's conduct — no alarm, protest or injuries, accompanying the accused to the market after the alleged rape — showed consent and she was not a witness of sterling quality (test per Santosh Prasad @ Santosh Kumar, 2020 (3) SCC 443). (iii) No FSL report proved semen presence and the cousin sister present in the car was not examined; sole-testimony conviction untenable where the testimony does not inspire confidence. Bail bonds continued six months under Section 481 BNSS, 2023.

2025:CGHC:8754

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 95 of 2016

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1 - Bhagwat Prasad S/o Lt. Shri Girdhari Prasad Aged About 56 Years R/o Old Mines, S.E.C.L. Q.No. 260, Bhatgoan, P.S. Bhatgaon, Distt. Surajpur, Chhattisgarh., Chhattisgarh

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... Appellant

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versus

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1 - State Of Chhattisgarh Through District Magistrate Surajpur, Chhattisgarh., Chhattisgarh

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... Respondent

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For Appellant : Mr. Ashok Shukla, Advocate For Res./State : Mr. Shailendra Sharma, Panel Lawyers

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Hon’ble Shri Justice Ravindra Kumar Agrawal Judgment on Board

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18.02.2025

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1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 30.11.2015 passed by the learned Special Judge (Scheduled Castes and Scheduled Tribes [Prevention of Atrocities], Surajpur (C.G.) in Special Sessions Case No. 46/2014 whereby the

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appellant has been convicted and sentenced in the following manner:

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Conviction	Sentence	Fine	In default	of
			payment	of

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				Fine
U/S	363 of	R. I. for 7	Rs. 3,000/-	R. I. for 6
Indian	Penal	years		months
Code
U/S	366 of	R. I. for 7	Rs. 3,000/-	R. I. for 6
Indian	Penal	years		months
Code
U/S	376(2)(i)	R. I. for	Rs. 5,000/-	R. I. for 6
of	Indian	10 years		months
Penal	Code
1860	and U/S
4 of P	rotection
of	Children
from	Sexual
Offen	fces Act,
2012

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All the sentences have been directed to run concurrently.

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2. Case of the prosecution, in brief, is that on 15.03.2014 when the victim (PW-6), who belonged to Scheduled Caste Community and aged about 13 years, at about 11 AM was going to her school on foot, at about 11.00 AM, near ofÏce of Nagar Panchayat, the present appellant came there by his car and took her with him on the assurance that he will leave her to the school and took her towards Ambikapur and in the Ramgarh Jangal, he committed rape upon her. After committing rape upon her, he took her by the said car to Ambikapur, purchased a chhappal from “A to Z” shop and left her at about 4.00 pm near the school. The victim came back to her house and informed the said incident to her parents. On the next day, F.I.R. (Ex. P-6) was lodged by the victim and in pursuance thereof, offence under Sections 363, 366-A, 376, 354 & 354-A of the IPC, Sections 4 & 6 of Protection of Children from Sexual Offences Act, 2012 (in short POCSO Act, 2012) and Section 3(2)(v) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 have been

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registered against the appellant/accused. Thereafter, the victim was sent for her medical examination to District Hospital, Surajpur where she was medically examined by Dr. Suchita Nirmala Kindo (PW-10), who after her medical examination, gave report vide Ex. P/11. While medically examining the victim, the doctor has not noticed any external injuries on her body and definite opinion can be given after chemical examination of vaginal smear. Two slides of vaginal smear were prepared, sealed and handed it over to police for its chemical examination. With respect to age and date of birth of the victim, School Register (Ex.P-13) has been seized from Government Primary School, Satpata, Bishrampur vide seizure memo Ex. P/3 and after retaining the attested true copy of School register Ex. P/13-C, the original Register Ex.P/13 were returned to the School. The Social Status Certificate of the victim (Article A/1) has been seized vide seizure memo Ex. P/1. The spot map (Ex.P/8) was prepared by the police and spot map (Ex. P/9) was prepared by the Patwari . The appellant was arrested on 06.07.2014 and he too was sent for his medical examination to the Community Health Centre, Surajpur where he was medically examined by Dr. Rajesh Kumar (PW05), who after his medical examination, gave his report Ex. P/5 and found him capable to perform sexual intercourse. Vaginal slides of the victim and underwear of the appellant as well as underwear of the victim were sent for chemical examination to Regional FSL, Ambikapur. Statements of the witnesses under Section 161 of the Cr.P.C. have been recorded.

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3. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Sections 363, 366-A, 376, 354 and 354-A of Indian Penal Code, Sections 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act, 2012”) and Section

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3(2)(v) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities), Act.

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4. On 13.10.2014, learned Trial Court has framed charges against the appellant for the offences under Sections 363, 366-A and 376, 354, 354A of IPC, Section 4 of POCSO Act, 2012 and Section 3(2)(v) of SC/ST Act. After recording evidence of the parties, on 16.10.2015, the learned trial Court has amended the charge and in place of the charge under Section 376 of IPC, the charge under Section 376(2)(i) of IPC have been framed. The opportunity to examine/cross-examine and re-examine/recross examine the witness have been provided to the parties and on their application filed under Section 217 Cr.P.C., victim (PW-6), Jagjeevan Ram (PW-7) [father of the victim] and Sunita (PW-8) [mother of the victim] were re-called for their re-cross examination and on 05.11.2015, they have been re-cross examined.

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5. In order to prove the charge against the accused/appellant, the prosecution has examined as many as 16 witnesses. The statement of accused was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appear against him, pleaded innocence and stated that he has falsely been implicated for the said offence. The appellant has further stated in his 313 Cr.P.C. statement that he was suffering from waist pain, for which he was admitted in District Hospital, Baikunthpur. The victim is more than 18 years of age, which is not properly enquired by the police and as per his information, the victim was present in the school on the date of alleged incident. The father of the victim came alongwith a Journalist in the jail and demanded Rs. 10 lacs. He is innocent and has been falsely implicated in the present case. One defence witness namely-Dr. A. K. Karan has also been examined by the appellant in support of his submission as DW-1.

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6. After appreciation of oral as well as documentary evidence led by the prosecution, learned trial court has convicted and sentenced appellant – Bhagwat Prasad as mentioned in the earlier part of this judgment. Hence this appeal.

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7. Learned counsel for the appellant would argue that the prosecution has failed to prove its’ case against the appellant beyond reasonable doubt. There are material omission and contradiction in the evidence of the prosecution witnesses, which cannot be made basis for his conviction. There is no legally admissible evidence with respect to the age and date of birth of the victim that she was minor on the date of incident. The school register produced by the prosecution has not been proved in accordance with law and no other documentary evidence like Kotwari register, birth certificate or ossification test report with respect to the age or date of birth of the victim have been produced by the prosecution. The author of the school register has not been examined and the basis on which the entries have been made in the school register have also not been produced by the prosecution. Therefore, in absence of any cogent and clinching evidence, the age of the victim cannot be determined that she was minor on the date of incident and less than 18 years of age. He would further submit that the victim herself eloped with the appellant on the date of incident and engaged in making consensual physical relationship with him without raising any objection and without any protest, her conduct itself is suspicious that even after alleged commission of rape, she accompanied with the appellant in his car, went to the market and purchased a Chhappal and again came alongwith the appellant by his car and in all that period she has not made any complaint to anyone even in the market also at the time when she was purchasing the Chhappal alongwith the appellant. There is no external injuries found

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on the body of the victim and no sign of any protest or struggle. Evidence of the victim is not sufÏcient to hold the guilty of the appellant for the offence in question, therefore, the impugned judgment of conviction and sentence suffers from illegality and perversity and the same is liable to be set aside.

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8. On the other hand, the learned counsel for the State while opposing the arguments advanced by the counsel for the appellant contended that from the evidence produced by the prosecution, there are sufÏcient material against the appellant/accused to hold his conviction for the alleged offence. The age of the victim is proved by the school register Ex. P/13C, which is sought to be proved by Smt. Filomina Ekka (PW 13), who is the Headmistress of the Govt. Primary School, Satpata, Police Station Vishrampur. As per the school register, the victim is minor and she was kidnapped by the appellant and kept her away from her lawful guardianship and made physical relationship with her. Due to her minority, the victim was not able to give her consent yet the appellant has made physical relationship with her, therefore, offence of rape has clearly been made out against the appellant. He would next submit that even no injuries have been found on the body of the victim, that itself cannot make prosecution case doubtful because there is no necessity in every case that the victim of the offence of rape, must have received injuries on her body but the same depends upon facts of the each case. After considering the entire facts & circumstances of the case as well as evidence available on record, learned trial Court has rightly convicted the appellant, which needs no interference.

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9. I have heard the counsel for the parties and perused the record of the court below.

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10. The first and foremost question arises for consideration would be the age of the victim as to whether on the date of incident, she was minor and less than 18 years of age or not. The prosecution has mainly relied upon the school Register Ex. P/13C, which is sought to be proved by PW 13, who is the Headmistress of the Govt. Primary School, Satpata, Police Station Vishrampur, she has stated in her deposition that the police has seized school register vide seizure memo Ex. P/3 with respect to date of birth of the victim and after retaining the attested true copy of the School register Ex. P/13C, original School Register Ex.P-13 was returned to the school. She brought the original register with her and as per the school register the date of birth of the victim is mentioned as 15.08.2001. She stated that the entries made in the school register had been made by earlier Headmistress. In her cross examination, she admitted that there is no mention in the school register Ex. P/13C about the basis on which the date of birth of the victim has been recorded. She further admitted that there is overwriting on the date of “15”. She also admitted that just below the name of victim, the name of her sister is also mentioned and there is overwriting in date of birth of her sister also. In further crossexamination, she stated that she was not posted in the school at the time, when the victim was admitted in the school. She did not know as to whether the parent of the victim has recorded the date of birth of the victim after reducing her actual age. From the evidence of this witness, it is quite clear that she is not the author of the school register and there is no evidence with respect to the basis on which the date of birth of the victim is recorded in the school register.

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11. The admissibility and evidencery value of the School Register has been considered by the Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State,

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represented by Inspector of Police, 2011(2) SCC 385 , the Supreme

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Court has observed as under:

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"40.Undoubtedly, the transfer certificate, Ex.P-16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.

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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 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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The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:-

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"The legal position is not in dispute that mere production

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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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In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl.

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

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"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of 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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12. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602 , while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under:

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

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33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section

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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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XXXX XXXX XXX

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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 sufÏcient 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

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proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.

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

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33.7 This Court has observed that a 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 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 ofÏcial document maintained in the discharge of ofÏcial duty would have greater credibility than private documents.

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33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the 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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13. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846 , Hon'ble Supreme Court has held in para 14 to 17 as under :

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"14. Section 94 (2)(iii) of the 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 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.

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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 OfÏcial (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 thedescription 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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In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:

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"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if 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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Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:

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"Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502

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

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14. Reverting to facts of the present case, the victim (PW 06) has stated in his evidence that the victim has not disclosed her date of birth or age in her chief-examination. In her cross-examination she stated that her date of birth is 05.07.2000. They are having five brothers and sisters and there are gap of one year in each of them. In her further cross-examination, she stated that she did not remember as to who had got admitted her in the school. She born in her house at village Pandopara, she had got admitted at class first at Bishrampur in the first time. She also did not know as to what documents was produced at the time of her admission in the school. She further stated that she disclosed her date of birth as per the information given by her mother.

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15. The Mother of the victim (PW08) has not disclosed the date of birth or age of the victim in her chief-examination. However, when she was crossexamined by the defence, she stated that she had got married since 15 to 16 years back and after one year of her marriage the victim born. In cross-

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examination, she further stated that she did not know as to whether the birth of the victim had got recorded in Kotwari Panji or not. She denied the suggestion that the victim had not got any birth certificate. She voluntarily stated that her birth certificate had got prepared for the purposes of vaccination. She further stated that she had gone to the school for her admission alongwith her husband and she informed the date of birth of the victim orally.

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16. Jagjeevan Ram (PW-8), father of the victim, has stated in his examination-in-chief that age of his daughter (victim) is about 13 years, but has not disclosed any date of birth. In cross-examination, he stated that he did not know about date of birth of his daughter and even he did not know about date of birth of any of the children. He has got admitted date of birth of the victim has been recorded in the Kotwari Panji of village Kundabasti. At the time of her admission in the School, there was no demand of Kotwari Panji in the School from him. Victim was got admitted in the School on the tradtional method of determining her age by putting her hand on the ear of other side. He further stated that at the time of her admission in the School, his wife has not gone with him in the School. He also stated that he has got prepared birth certificate of the victim from Bishrampur Hospital.

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17. From all these evidence of victim as well as her parents, there appears to be no clinching and cogent evidence with respect to her age, victim has stated that her date of birth is 5.7.2020, stated that she disclosed her date of birth on the basis of information disclosed by her mother, whereas Sunita (PW-8), mother of the victim did not disclose her any date of birth. Date of birth of victim has got recorded in the Kotwari Registered, but the same has not been produced by the prosecution. Her mother has stated that she has got admitted her daughter in the School, but father of the victim has stated in his evidence that at the time of admission of her daughter in the School, her mother had not gone to the School. Father of the victim (PW-7) has not disclosed any date of

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her birth and the victim has got admitted in the School on following the traditional method. Though, he stated that he has got prepared birth certificate of the victim from the Hospital, but the same has also not been produced by the prosecution. Therefore, considering the overall evidence produced by the prosecution with respect to age of the victim, it would not be safe to hold that the victim was minor on the date of incident, yet the learned trial Court has held her minor.

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18. So far as offence of kidnapping and rape is concerned, I again examined the evidence of the victim (PW-6). She stated in her evidence that on the date of incident, when she was going to School, near Nagar Panchayat, Vishrampur, appellant/accused came from her backside in his car and asked for his company and he will leave her in the School. In his car, her cousin sister was also there and after seeing her, she also boarded in the car. Instead of taking her to school, appellant/accused took her towards Ambikapur Road to 'Sunday Market' and when she asked as to where they are being taken her, her cousin sister has replied that 'today they will enjoy the car riding and she may go to School tomorrow', and despite her protest, they have taken her with them. The appellant took her to “Ramgarh Hills” and on the way he fed her the cold drink and in the Ramgarh jungle he committed rap upon her. After committing rape upon her, he took her to Ambikapur and on the way he further tried to outrage her modesty and asked her not to disclose the incident to anyone. Thereafter, he took her to Ambikapur market and purchased a Chappal for her from a shop and at about 4 pm, he left her near his house and went away. She alongwith her father had gone to Police Station and lodge a report. In cross-examination, she admitted that her younger sister is also studied in the same school, having same school time. She further stated that the appellant has committed rape upon her inside the car, which was parked inside the Jungle. She did not remember that as to whether she protested or not at the time of commission of

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rape upon her. She further admitted that she has not received any injuries on the body and in the shop where they have purchased a chappal, her cousin sister was also present and other persons were also there in the shop, but she did not disclose the incident to anyone. She also did not disclose the incident to her cousin sister because she too is having suspicious character. After the incident, she went to jail to meet the appellant/accused. She admitted that appellant is already married and is an employee of South Eastern Coalfields Limited, which came to her knowledge after the incident. She further admitted that appellant came to Vishrampur to leave her and her sister. The fact that, in a car, her cousin sister was also there and on her request, she boarded in the car, has been disclosed in the police statement, but if it is not there, she could not tell the reason. She further stated that at the time when the appellant was taking her towards Ramgarh Jungle, she has not raised any alarm. 19. From the evidence of the victim (PW-6), it appears that she did not disclose that she made any protest or struggle at the time when she was being subjected to forceful sexual intercourse by the appellant, even she has not raised any alarm, when the appellant took her towards Ambikapur Jungle instead of going to her School. Further, she did not disclose the incident to anyone in the market where she purchased the chappal , particularly, when her cousin sister and other persons were present. Even after, she boarded from the car of her cousin sister, she accompanied with the appellant, went towards Ambikapur Jungle, made physical relation with him and despite that she again boarded in the car of the appellant and has not fled away from the place, went to Market and purchased a chappal and again boarded in the car and came to her house, which goes to show that she was consenting party in making physical relation with the appellant and it is against the normal conduct and behviour of the appellant. Has she been subjected to forceful sexual intercourse, she would have immediately raised alarm or struggled by giving

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nail scratch mark or teeth bite on the body of the appellant, but she did not do so. She ought not to have accompanied with the appellant after commission of rape upon her and she ought to have tried to flee away from the place, but she silently accompanied with the appellant up to her house and in the facts and evidence available on record, she cannot be termed as witness of sterling quality, which is required for holding conviction of the appellant / accused.

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20 . From all these evidences, it cannot be said that the victim is having a status of the witness of that sterling quality on which the appellant can be convicted. The sterling witness has been considered by the Hon’ble Supreme Court in the matter of Santosh Prasad @ Santosh Kumar v. State of Bihar , 2020 (3) SCC 443, which is reproduced herein below:

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“5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it is observed and held as under:

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“22 In our considered opinion, the “sterling witness” should be of a very high quality and calibre 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 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

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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 every one 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 such similar tests to be applied, can it 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 precise, the version of the said witness on the core spectrum of the crime should remain intact 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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21. Sunita (PW-8) [mother of the victim] had stated in her evidence that when the victim returned at about 4 pm to her house, she was not feeling well and upon asking her, she disclosed about the incident. On the next day, when her husband came from his duty, she informed the incident to him and then the report has been lodged. In cross-examination, she has stated that her daughter (victim) has not disclosed that her cousin sister was also there with the appellant. She further admitted that her daughter has informed her that her

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cousin sister again met her at Ambikapur. Thus, mother of the victim is only the witness to the effect that she disclosed the incident to her.

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22. Father of the victim (PW-7), who is father of the victim, has stated in his evidence that when he returned back from his duty, his family members have not disclosed about the incident. He came to know about the incident only after lodging of the report against the appellant by her daughter. When he declared hostile by the prosecution, he stated that on the earlier occasion, she could not understand the question and, therefore, he stated that he did not know about the incident, he voluntarily stated that when he came to know about the incident, he has taken her daughter to the police station for lodging of the report. In cross-examination, he admitted that he had gone to jail to meet the appellant / accused.

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23. Dr. Suchita Nirmala Kindo (PW-10), who medically examined the victim, has not noticed any external injuries on her body and opined that no definite opinion can be given regarding forceful sexual intercourse with the prosecutrix, further there is no FSL report produced by the prosecution, which proves the presence of sperm and semen of the appellant/accused in the vaginal slides of the victim. Further, cousin sister of the victim, who was present alongwith her in the car up to the Ambikapur market, had not been examined by the prosecution.

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24. From all these evidence, this Court does not find any sufÏcient evidence against the appellant to uphold his conviction for the alleged offence only on the basis of evidence of the victim and her parents.

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25 . The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim’s evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape,

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conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony the victim must inspire confidence. Even though the testimony of victim is not required to be corroborated, if her statement is not believable then the accused cannot be convicted. The prosecution has to bring home charges levelled against the appellant beyond any reasonable doubt, which prosecution has failed to do in the instant case.

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26 . For the forgoing reasons, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant that on the date of incident, he kidnapped the victim and committed rape upon her, thus, the appellant is entitled for benefit of doubt.

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27. In the result, the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence dated 30.11.2015 is hereby set aside. The appellant is acquitted of all the charges levelled against him. He is reported to be on bail, his bonds shall continue for a further period of six months in view of the provisions of Section 481 of BNSS, 2023.

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28. The trial Court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

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Sd/(Ravindra Kumar Agrawal) Judge

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amita

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Digitally signed by AMITA DUBEY Date: 2025.03.06 11:31:22 +0530

Bhagwat Prasad v. State Of Chhattisgarh

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Bhagwat Prasad v. State Of Chhattisgarh

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