Anil Khanna Vs State Of Chhattisgarh

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2026:CGHC:2166-DB

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Digitally signed by ALOK ALOK SHARMA SHARMA Date:2026.01.29 16:57:28 +0530

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1540 of 2016

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1 - Rakesh Khunte S/o Shri Shital Khunte Aged About 19 Years R/o Village Aurda Police Station Kharsia District Raigarh, Chhattisgarh., Chhattisgarh

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--- Petitioner(s)

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Versus

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1 - State Of Chhattisgarh Through Police Station Kharsia, District Raigarh, Chhattisgarh., Chhattisgarh

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--- Respondent(s)

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CRA No. 128 of 2017

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1 - Anil Khanna S/o Late H.R. Khanna, Aged About 36 Years R/o Village Ourda, Police Station Kharsiya, District Raigarh, Chhattisgarh., Chhattisgarh

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2 - Madanlal Dadsena S/o Bartanlal Dadsena, Aged About 32 Years R/o Village Jamjhor, Police Station Kharsiya, District Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh

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--- Appellant(s)

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Versus

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1 - State Of Chhattisgarh Through Police Station Kharsiya, District Raigarh, Chhattisgarh., Chhattisgarh

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--- Respondent(s)

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For Appellant(s) : Mr. Dheerendra Pandey, Advocate in (CRA No. 1540/2016) Mr. Avinash K. Mishra, Advocate in (CRA No. 128/2017) For Respondent/State : Mr. Shaleen Singh Baghel, Govt. Advocate.

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For Complainant/Objector : Mr. Kamlesh Kumar Pandey, Advocate.

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Hon'ble Shri Ramesh Sinha, Chief Justice

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Hon'ble Shri Ravindra Kumar Agrawal, Judge

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Order on Board

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Per Ravindra Kumar Agrawal, J.

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14/01/2026

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Both these appeals arise out same crime number and the same sessions trial, therefore, they are being heard and decided together.

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The Criminal Appeal No. 1540/2016, filed by the appellant Rakesh Khunte against the impugned judgment of conviction and sentence dated 28.11.2016 passed by the learned Additional Sessions Judge, Fast Track Court, Raigarh in Sessions Trial No. 107/2011, whereby the appellant Rakesh Khunte has been

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convicted and sentenced in the following manner:

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Conviction	Sentence
U/s 363/34 of IPC	RI for 03 years and fine of Rs.
	2,000/- in default of payment of
	fine additional RI for 01 month.

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U/s 366/34 of IPC	RI for 05 3,000/- in fine additio	years and fine of Rs. default of payment of nal RI for 02 month.
U/s 376 (1)/34 of IPC	RI for 10 5,000/- in fine additio	years and fine of Rs. default of payment of nal RI for 06 month.
All the sen	tence run conc	urrently.

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The Criminal Appeal No. 128/2017, has been filed by the appellants Anil Khanna and Mandanlal Dansena (as per the cause title it is written as Madanlal Dadsena) against the impugned judgment of conviction and sentence dated 28.11.2016 passed by learned Additional Sessions Judge, Fast Track Court, Raigarh in Sessions Trial No. 107/2011, whereby the appellant Rakesh Khunte has been convicted and sentenced in the following manner:

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Conviction		Sentence
U/s 363/34 of the IPC	RI for 03 2,000/- in fine further	years with fine of Rs. default of payment of RI for 01 month.
U/s 366/34 of the IPC	RI for 05 3,000/- in fine further	years with fine of Rs. default of payment of RI for 02 month.
U/s 376(1)/34 of the IPC	RI for 10 5,000/- in fine further	years with fine of Rs. default of payment of RI for 06 month.
All the sente	nces run conc	urrently.

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In the Criminal Appeal No. 1495/2025, filed by the accused Ramadhar Baghel (accused in Sessions Trial No. 38/2021

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decided by learned Additional Sessions Judge (FTC) Sakti, District Janjgir-Champa on 14.07.2025) it was pointed out that the daughter of the co-appellant of that case namely Rakesh Khunte who was allegedly to have been raped by the husband of the victim of the present case namely Madanlal Dansena, Rakesh Khunte, and Anil Khanna against whom the FIR of Crime No. 344/2011, was registered at Police Station Kharsiya and after trial they have been convicted by the learned trial Court on 28.11.2016 and sentenced RI for 10 years, both these present appeals are directed to be list along with the Criminal Appeal No. 1495/2025, CRA No. 534/2018 and CRA No.1508/2025. Therefore, the present appeals are listed along with the Criminal Appeals No. 1495/2025, CRA No.534/2018 and CRA No. 1508/2025 but have been decided by a separate set of judgments.

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Brief facts of the case are that the complainant, PW-1, lodged a report on 10.04.2011 with the allegation that on 07.04.2011 at about 01:00 to 03:00 am, his daughter was missing from the house and despite her search in nearby places and the relative's house, she could not be found. During the search, it came into knowledge that the accused Rakesh is also missing from the same time, and the witnesses raised suspicion about him. On 14.04.2011, the victim was recovered from the house of the complainant, and then her statement was recorded. In her statement, she disclosed that the accused Rakesh Khunte and

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Anil Khanna kidnapped her, and Anil Khanna committed rape upon her. The offence under Sections 363, 366 and 376/34 of the IPC was registered. During the investigation, it was also discovered that the co-accused Rakesh Khunte and Mandanlal Dansena have also committed rape upon her. The victim was sent for her medical examination to the Community Health Centre, Kharsiya, and she was medically examined by Dr. J. Ekka PW-8, who gave her MLC report Ex.P/9. In her medical examination, no external injuries were found on the body of the victim. Statement of the witnesses has been recorded under Section 161 of Cr.P.C. Spot map Ex.P/8 was prepared by the Police. With respect to the age of the victim, the school register Ex.P/16 was also seized from the Govt. Higher Secondary School, Botalda and a certificate from its principal Ex.P/15, was also seized. The vaginal slides of the victim and the underwear of the accused Rakesh Khunte were sent for their chemical examination to FSL, Raipur, and in the FSL report, semen and sperm were found present in both the articles. After completion of the usual investigation charge-sheet was filed against accused Rakesh Khunte showing the two accused persons Anil Khanna and Madanlal Dansena as absconding. The accused Madanlal Dansena was arrested on 17.01.2012 and Anil Kumar Khanna was arrested on 25.03.2012 and two separate supplementary charge-sheet were filed against these accused persons.

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The learned trial Court has framed a charge against the accused Rakesh Khunte for the offence under Section 363/34, 366/34 and 376(1) of IPC. vide order dated 23.11.2011. The charge against the accused Mandalal Dansena under Section 363/34, 366/34 and 376(1) of IPC has been framed on 27.02.2012, and the charge against Anil Kumar Khanna under Section 363/34, 366/34 and 376(1) of IPC has been framed on 23.04.2012. The accused persons denied the charge and claimed trial.

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In order to prove the charge against the accused persons, the prosecution has examined as many as 17 witnesses. Statement under Section 313 of Cr.P.C. of the accused persons have been recorded, in which they have denied the circumstances that appear against them, pleaded innocence and have submitted that they are innocent and have been falsely implicated in the offence.

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After appreciation of oral as well as documentary evidence led by the parties, the learned trial Court has convicted and sentenced the appellants as mentioned in the earlier part of the judgment, hence this appeal.

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Learned counsel appearing for the respective appellants would submit that the prosecution has failed to prove its case beyond a reasonable doubt. There are material omissions and contradictions in the evidence of the prosecution witnesses. There is a material inconsistency in the evidence of the victim herself and the other witnesses. The victim, on her own will, eloped with the accused Rakesh Khunte, who was having love

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affair with her, and it is only to create the offence more serious, the other two accused persons have been implicated. The victim on the instance of her parents, roped the accused persons in a false case of the offence of rape. From 07.04.2011 to 10.04.2011, no report has been lodged against the accused persons. When the victim eloped with the accused Rakesh Khunte, she had not raised any alarm or made any complaint. At the time of the alleged incident, she was competent and capable of giving her consent in physical relation and engaged in making consensual physical relation with the accused Rakesh Khunte. The victim has not been recovered from the possession of the accused person, but has been recovered from her parents’ house. No injuries have been found on the body of the victim at the time of her medical examination, and no sign of any struggle. The statement of the victim was recorded on 14.04.2011, which was recorded after 07 days of the alleged incident. They would further submit that earlier, there was a complaint made by the accused Anil Khanna against the accused Rakesh Khunte that he was being protected by the police personnel in his earlier case. They have also submitted that the accused Anil Khanna has made a complaint against the father of the victim, Rajesh Kumar, that he committed irregularities in running the fair price shop of village Aurda; therefore, there is sufficient material that the accused persons have falsely implicated in the offence, yet the learned trial Court has convicted them. The conduct of the victim as well as her

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parents is suspicious, and the evidence available on record is not sufficient to hold the accused persons guilty, and they are entitled for acquittal.

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On the other hand, the learned counsel for the state opposes the arguments advanced by the learned counsel for the appellants and submitted that the victim was a minor at the time of the incident, which is proved by the School register Ex.P/16 and Certificate Ex.P/15. Since the victim was a minor, her consent, if any, would not absolve the appellants from their liability. The victim clearly deposed about the act of the appellant that they had committed rape upon the victim, which is duly corroborated by her 161 Cr.P.C. statement. Even if no injuries have been found on the body of the victim, it does not dilute the prosecution’s case and does not make the appellant entitled for acquittal. There is no reason for false implication of the accused persons, and in view of the evidence of the victim and other witnesses, the learned trial Court has rightly convicted and sentenced the appellants/accused persons, which needs no interference.

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We have heard the learned counsel for the parties and perused the record carefully.

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The first and foremost question for consideration would be the age of the victim, as to whether she was minor on the date of incident or not.

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In the missing report lodged by the father of the victim, her age is shown as 16 years. The police has seized the school register

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(exhibit P-16) and a certificate (exhibit P-15) issued by the Principal, Govt. Higher Secondary School, Botalda, in which the date of birth of the victim is recorded as 30.07.1995. The victim/PW-6 has been examined on 10.02.2014 and she stated her age as 19 years. The date of alleged incident was 07.04.2011.

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PW-1 is the father of the victim and he also disclosed that, the date of birth of his daughter is 30.07.1995. In cross-examination he stated that, he disclosed before the police that the date of birth of his daughter is 23.07.1995 and if the date of birth of his daughter is not mentioned in his police statement (exhibit D-1), he did not tell the reason. He denied that he has not given the birth certificate of the victim to the police. He could not tell as to in which year, he got the victim admitted in the school.

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PW-2 is the mother of the victim. She has not disclosed the date of birth of the victim. The prosecution has relied upon the document (exhibit P-16), which is the school register. The said school register sought to be proved by PW-11, who was the Principal of the school. He stated in his evidence that, the police has seized the school register with respect to the date of birth of the victim by seizure memo (exhibit P-13). The school register is exhibit P-16 and after retaining its attested true copy, the original register was returned back. On the basis of school register, he also issued a certificate (exhibit P-15). As per the school register, the date of birth of the victim is 30.07.1995 and she admitted in

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class 9^th . In cross-examination, he admitted that he issued the certificate (exhibit P-15) on the basis of the school register (exhibit P-16). He also admitted that Govt. Higher Secondary School, Botalda is running for class 9^th to 12^th . He also admitted that the date of birth fo the student is firstly recorded in primary school and in the school register (exhibit P-16), on what basis the date of birth of the victim is recorded, it is not mentioned. He also admitted that, there is no birth certificate of the victim and no mention of the name of any person, who got her admitted in the school, in the school register (exhibit P-16). He further admitted that there is no counter sign of the person, who made entry in the school register. He also admitted that, he was not posted in the school at the time of admission of the victim.

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Except these evidence, there is no other evidence either birth certificate, kotwari register or ossification test report of the victim to show that, on the date of incident, she was less than 16 years of age. Further, the school register is of class 9^th and no school record of her initial schooling produced by the prosecution.

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The admissibility and evidentiary value of the school register have been considered by the Hon'ble Supreme Court in the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385 , the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However,

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the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that 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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In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court 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 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 Purohit, 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

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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 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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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 cannot 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. 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

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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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18. 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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33.2.2. 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 subsection (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 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 official document maintained in the discharge of official 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

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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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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. 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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In a recent decision, in Rishipal Singh Solanki vs. Stateof 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

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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 [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 from the 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

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decision, the court indicated the hierarchy of documents that would be accepted in order of preference.”

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The incident is of 07.04.2011 and at that time, a man is said to commit rape, who except in the case excepted, has sexual intercourse with a woman with or without her consent, when she is under 16 years of age. In the present case, the prosecution has failed to prove that the victim was less than 16 years of age at the time of alleged offence by producing cogent and admissible evidence, yet the learned trial Court has held her minor, which in the opinion of the Court is perverse finding.

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So far as the offence of rape is concerned, we again examined the evidence of the victim/PW-6. She stated in her evidence that, on 07.04.2011, at about 1:30 AM, she heard the noise of knocking the door and when she came out from her house, she found Anil Khanna and Rakesh there. They asked about their uncle. They put clothes on her head and took her towards canal, from where they took her to the house of Madan Dansena, at village Jamjhore. They kept her there for about three days. In the intervening night of 9^th and 10^th , the accused Rakesh committed rape upon her. On 10^th Anil Khanna sent the accused Rakesh Khunte to village Okaripani and Madan Dansena came. Madan Dansena and Anil Khanna also committed rape upon her and threatened that if she disclose the incident to anyone, they would kill her. She too has asked them that, if they will commit any wrong, she would commit suicide. She was being kept along with the wife of Madan and thereafter they left her to the house of

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maternal uncle of Rakesh at village Kabaripali, who informed her parents and then they took her back. Kharsia police was being informed and lodged the report. In cross-examination, she stated that she has not disclosed in her police statement (exhibit D-3) that she was having love affair with Rakesh Khunte since one year and it was written by the police on her own. The Anil and Rakesh kidnapped her and took her towards canal, was also disclosed to the police and if it is not there in her police statement, she could not tell the reason. She also disclosed that on 09.04.2011, Rakesh committed rape upon her, but she could not say, as to why the police has not written it. At the time when the door of her house was knocked, her other family members were sleeping and she had not called them. She was being taken by motorcycle, which was driven by Anil Khanna and Rakesh sat behind her. She was in middle of both of them in the motorcycle. She admitted that, adjoining to her house, the houses of others are also there. She has not shouted at that time. After leaving her at village Kabaripali, Rakesh and Madan went away.

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She further stated that, she has not called her parents, when the door was knocked in the night. There is no reason for not informing them about knocking of the door. From 7^th to 10^th , she was outside of her house and on 11^th , her father took her back. She disclosed in her subsequent police statement that, Anil Khanna came to the house of Madan Dansena on 10.04.2011. She admitted that, she had gone to the house of Madan Dansena

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first time along with the police. She denied that, she disclosed to the police that when she was with the accused Rakesh, they were passing time by enjoying foods. She has not disclosed that they were sleeping together and had physical relation. There were adjoining houses, but she has not raised any alarm and has not shouted for help, even she has not disclosed about the incident to anyone, even to the wife of the accused Madan Dansena.

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She denied the suggestion given by the defence that, her father was running fair price shop and on the complaint of Madan Dansena and Anil Khanna, her father was removed from fair price shop. She also denied that there was allegation of misappropriation of fund. She also denied that in the dispute between her brother and the persons of brick kiln, the accused Anil Khanna was the witness. From her 161 CRPC statement (exhibit D-3), it transpires that the victim was having love affair with accused Rakesh Khunte since one year and she had gone with him without raising any objection or protest. While staying in the house of Madanlal Dansena, they frequently made physical relation consensually. From her statement, it comes that the wife of the accused Madan was also there, but she has not informed any incident to her and the police have also not produced her as the witness. From the document (exhibit D-4), which is the copy of complaint lodged by the accused Anil Khanna against the brother of the victim with respect to possession of firearm and

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hurling threats in the village, exhibit D-5 which is the complaint made to SDO Kharsia and other authorities against the father of the victim against his illegal act in fair price shop, also disclosed that the father of the victim had strange relation with the

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accused persons. There appears to be vital contradictions and exaggeration in the evidence of the victim with that of her 161 CRPC statement.

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It is well settled principle of law that, conviction can be sustained on the sole testimony of the victim, if it inspires confidence and there is no rule of law that the evidence of the victim cannot be relied upon without corroboration, as has been laid down by various judgments of the Hon'ble Supreme Court that corroboration is not a sine qua non, for conviction in a rape case. The evidence of the victim requires examination with great caution and the Court has to see that the evidence of the victim inspires confidence, is of high quality and on the face value acceptable and cannot create a doubt from any angle. The evidence should pass the test of “sterling witness” as has been held in the case of “ Santosh Prasad @ Santosh Kumar v. State of Bihar ” 2020 (3) SCC 443.

¶117

From the evidence of the victim/PW-6, it reveals that on the date of incident, at about 1:30 in the night, without informing to her family members, she on her own will eloped with accused Rakesh and stayed along with him in the house of Madan Dansena and engaged in making consensual physical relation for

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about three days. In between that, she has not made any complaint to anyone and has not raised any alarm, even she has not disclosed about any incident to the wife of accused Madan, who was also present there. It is difficult to believe that, the victim was kept in confinement for about three days in room without providing any opportunity to ease. From the statement of the victim, it does not appear that she made any kind of resistance. Therefore, looking to the testimony of victim in its entirety, she failed to pass the test of sterling witness. The manner in which, the occurrence is stated to have occurred, is not believable in practical situation. Therefore, in the facts and circumstances of the case, this Court finds, it is difficult to believe the solitary testimony of the victim/PW-6.

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Further, as per the evidence of the victim, her father took her back on 11.04.2011, whereas her father has not informed the police about the fact that, he took the victim back despite lodging of her missing report on 10.04.2011. The police has recovered the victim on 14.04.2011 from her own house and recovery panchnama (exhibit P-1) was prepared. There is no explanation for not informing the police for about three days about the commission of offence by the accused persons. Had the victim suffered from any offence of rape, she or her parents would immediately inform the police about the incident, particularly when the missing report has already been lodged.

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PW-1, who is the father of the victim has stated in his evidence that his daughter was missing from 07.04.2011 and when her whereabouts could not be traced out, he lodged missing report to the police. His daughter was found in the house of her maternal uncle at village Kabaripali after 3-4 days. Her daughter has informed him about the incident. In his cross-examination, he stated that the fact of knocking the door and kidnapping of his daughter by the accused persons, have been disclosed in his police statement, and if it is not there, he did not tell the reason. He did not disclose in his police statement that, they searched her for 3-4 days. He did not know about love affair between his daughter and accused Rakesh. He came into knowledge in the night of 07.04.2011 itself about missing of his daughter, but he lodged missing report on 10.04.2011. He stated further that, on 11^th and 14^th he took his daughter to the police station on being called by the police.

¶123

PW-2, mother of the victim has also stated in her evidence that, on the date of incident all the accused persons kidnapped her daughter and left her at her maternal uncle’s house. When they received information, they took her back and on the way, her daughter informed them about the incident of rape. Thereafter, they immediately rushed to the police station. She denied by giving statement to the police that, her daughter was having love affair with accused Rakesh. She disclosed that, she is making statement on the basis of the incident disclosed by her daughter.

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PW-8, Dr. J. Ekka, who medically examined the victim on 14.04.2011, has not found any external or internal injuries on her body. She proved her MLC report (exhibit P-9). There is no sign of any resistance on the body of the victim found by the doctor while examining the victim. Though she opined that the victim underwent the sexual intercourse, but she could not opine about forceful sexual intercourse.

¶126

In the case of Dola alias Dolagobinda Pradhan and Another vs. State of Odisha , 2018(18) SCC 695, the Hon’ble Surpeme Court has held in para 9 as under:-

¶127

“9 . However, as is also evident from the observations above, such reliance may be placed only if the testimony of the prosecutrix appears to be worthy of credence. In this regard, it is also relevant to note the following observations of this Court in Raju v. State of M.PA, which read thus: (SCC p. 141. paras 10-11)

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"10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.

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It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."

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Having due regard in our mind to the abovementioned settled position in law, we have assessed the entire material on record meticulously.”

¶132

The version of the prosecutrix commands great respect and acceptability, but if there are some circumstances which cost some doubt in the mind of the Court on the veracity of the prosecutrix evidence, then it will not be safe to rely on the said version of the prosecutrix. There is contradiction and omission in the statement of the prosecutrix and other witnesses. The law is well-settled that in a case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to being home the charges levelled against the appellants beyond reasonable doubt, which the prosecution has failed to do in the instant case.

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Considering the entire evidence available on record, age and conduct of the victim, this Court is of the opinion that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. Yet the learned trial Court has convicted and sentenced the appellants for the alleged offences, which is liable to be interfered with and accordingly the impugned judgment of conviction and sentence dated 28.11.2016 is set

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aside . The appellants are acquitted from all the alleged offences by giving them benefit of doubt. Both these appeals are allowed .

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The appellants are reported to be on bail. Their bail bond shall continue for the further period of 6 months as provided under Section 481 of BNSS, 2023.

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

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Sd/- Sd/-

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(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

Ved/Alok

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Head Note

The corroboration of the evidence of the victim, though is not a sine qua none for conviction in a rape case but the accused must also be protected against the possibility of false implication.

Anil Khanna v. State Of Chhattisgarh

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Anil Khanna v. State Of Chhattisgarh

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