Vishnu Prasad Dhidhi Vs State of Chhattisgarh

1. Heard Mr. Ravindra Sharma, learned counsel for the appellant. Also heard Mr. Sourabh Sahu, learned Panel Lawyer, appearing for the State/respondent.

¶18

Digitally signed by BRIJMOHAN BRIJMOHAN MORLE MORLE Date: 2026.04.23 10:24:50 +0530

¶19

2

¶20

2. Though the matter is listed today for hearing on I.A. No. 1 of 2024 (application for suspension of sentence and grant of bail), however, considering that the appellant has been in custody since 02.09.2021, and with the consent of learned counsel for the parties, the appeal is taken up for final hearing.

¶21

3. Learned State counsel submits that notice issued to the father (PW-2) of the victim has been duly served; however, no one has appeared on behalf of the victim to contest the present appeal.

¶22

4. The present criminal appeal, preferred under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), is directed against the impugned judgment of conviction and order of sentence dated 05.07.2024 passed by the learned Additional Sessions Judge First Fast Track Special Court (POCSO Act), Raipur, District Raipur (C.G.) (for short, ‘learned trial Court’) in Special Session (POCSO) Case No. 203 of 2021, whereby the appellant has been convicted and sentenced as follows:

¶23

Conviction		Sentence
Section 363 of the the Indian	Rigorous	imprisonment (for short,
Penal Code (for short, ‘IPC’)	‘R.I.’) for	07 years and fine of
	Rs.500/-,	in default of payment of
	fine, 02 m	onths R.I. more.
Section 366 of the IPC	R.I. for 07	years and fine of Rs. 500/-,
	in default	of payment of fine, 02
	months R.	I. more.
Section 5(l)/6 of the Protection	R.I. for	20years and fine of

¶24

3

¶25

of Children from Sexual Rs.2000/-, in default of payment of Offences Act, 2012 (for short, fine, 04 months R.I. more. ‘ POCSO Act ’)

¶26

All the sentences shall run concurrently.

¶27

5. The prosecution case, in brief, is that on 31.08.2021, at Police Station Kharora, District Raipur, the father (PW-2) of the victim lodged a report stating that his younger daughter, the victim (PW-1), whose date of birth is recorded as 28.05.2005 and whose age was approximately 16 years, 03 months, and 03 days, had left the house on 30.08.2021 at about 12:00 midnight without informing any family member and had not returned thereafter. Despite making earnest efforts to trace her at the houses of relatives and acquaintances, her whereabouts could not be ascertained. The complainant expressed suspicion that some unknown person had enticed and abducted his minor daughter. On the basis of the said report, a missing person report was registered at Police Station Kharora, District Raipur, and subsequently, FIR No. 357/2021 was registered under Section 363 of the IPC, and investigation was set into motion.

¶28

6. During the course of investigation, a spot map of the place of occurrence was prepared. A requisition was forwarded to the Tahsildar concerned for preparation of a site plan. The father of the victim produced the Class V progress report card of the victim, which was seized in the presence of independent witnesses. Upon requisition, the Headmaster of the victim’s school (PW-4) produced the admissiondischarge register, which was also seized in accordance with law. A

¶29

4

¶30

certified copy of the relevant entry was prepared after due comparison with the original record and was taken on record, while the original register was returned to the concerned authority on Supurdnama.

¶31

7. The victim was subsequently recovered in the presence of witnesses, and a recovery panchnama (Ex.P/1) was prepared. Her statement under Section 161 of the Cr.P.C. was recorded, and her statement under Section 164 of the Cr.P.C. was also recorded before the learned Magistrate (Ex.P/5). The victim was produced before the Child Welfare Committee, where her counselling was conducted, and thereafter she was handed over to her father. Statements of other prosecution witnesses were recorded during investigation. Upon obtaining due consent from the victim and her father (Exs.P/3 & P/13), the victim was subjected to medical examination, and necessary seizure proceedings were carried out. During investigation, it was alleged that the accused/appellant had kidnapped the minor victim from lawful guardianship for the purpose of illicit intercourse and had committed repeated sexual assault upon her, thereby attracting the offence of aggravated penetrative sexual assault. The accused/appellant was arrested, and intimation of arrest was duly given to his family members (Ex.P/25). His medical examination was conducted, and his memorandum statement was recorded (Ex.P/17). The motorcycle bearing registration No. HERO HF DELUXE CG-04-NL-4838, allegedly used in the commission of the offence, was seized. The seized articles, including the underwear, pad cloth, and slides of the victim, as well as the underwear and slides of the accused, were sent to the State

¶32

5

¶33

Forensic Science Laboratory for chemical examination, and the report received therefrom was taken on record.

¶34

8. Statements of the witnesses under Section 161 of the Cr.P.C. were duly recorded by the Investigating Officer. Upon completion of the investigation, a charge-sheet was filed before the learned trial Court against the appellant for offences punishable under Sections 363, 366, and 376(2)(n) of the IPC, as well as under Section 6 of the POCSO Act.

¶35

9. The learned trial Court, upon consideration of the material on record, framed charges against the appellant under Sections 363, 366, and 376(2)(n) of the IPC and under Section 5(l)/6 of the POCSO Act. The charges were read over and explained to the appellant, who abjured guilt and claimed to be tried.

¶36

10. In order to bring home the charges, the prosecution examined 07 witnesses and exhibited 30 documents. The appellant, however, did not examine any witness in his defence nor did he produce any documentary evidence.

¶37

11. The statement of the appellant was recorded under Section 313 of the Cr.P.C., wherein he denied all the incriminating circumstances appearing against him in the prosecution evidence and asserted that he was innocent and had been falsely implicated in the case.

¶38

12. Upon appreciation of the oral and documentary evidence adduced by the prosecution, the learned trial Court convicted the appellant and sentenced him in the manner detailed in paragraph 04 of this judgment.

¶39

6

¶40

Aggrieved thereby, the appellant has preferred the present appeal.

¶41

13. Learned counsel for the appellant vehemently submits that the appellant has been falsely implicated and that the prosecution has utterly failed to establish his guilt beyond reasonable doubt. It is contended that the prosecution case is fraught with material contradictions, omissions, and inherent inconsistencies, which strike at the very root of the case and render it wholly unreliable. It is further urged that the learned trial Court has committed a grave error in convicting the appellant under the provisions of the POCSO Act, as the prosecution has failed to conclusively prove that the victim was a minor at the time of the alleged incident. The reliance placed on the Admission-Discharge Register (Ex.P/10C), wherein the age of the victim is recorded as 16 years and 03 months, is wholly misplaced. The Headmaster (PW-4), in his cross-examination, has categorically admitted that he is neither the author of the said entry nor in a position to testify for its correctness or authenticity.

¶42

14. It is further significant that the father of the victim (PW-2), in his deposition before the learned trial Court, has categorically stated that he is not aware of the actual date of birth of the victim. He has further deposed that the victim was enrolled in school by her mother and that he does not know on what basis the date of birth was recorded in the school records. Notably, the mother of the victim, who would have been the most competent witness to depose regarding the age of the victim, has not been examined by the prosecution. In the absence of cogent,

¶43

7

¶44

reliable, and admissible documentary evidence regarding the age of the victim, it was incumbent upon the prosecution to conduct a radiological examination for determination of age. The failure to do so creates a serious lacuna in the prosecution case and renders the applicability of the provisions of the POCSO Act highly doubtful.

¶45

15. Learned counsel for the appellant further contends that the statement of the victim recorded under Section 164 of the Cr.P.C. clearly reflects that she had accompanied the appellant of her own choice. In her said statement, the victim has categorically stated that she was in regular telephonic contact with the appellant, that she herself called him and asked him to take her along, and despite being told that she was a minor, she insisted on accompanying him. She further stated that she stayed with the appellant at his residence and thereafter at his relatives’ place, and that they solemnized marriage in a temple. Importantly, she has explicitly stated that the appellant did not subject her to any force or coercion and that she went with him willingly. However, in her deposition before the learned trial Court, she has materially deviated from her earlier version and narrated an altogether different story. Such material improvements and contradictions severely affect the credibility of the prosecution case. It is also submitted that, as per the prosecution itself, the victim remained with the appellant during the intervening period of 31.08.2021 to 01.09.2021, yet she neither raised any alarm nor informed any person that she was being taken against her will or subjected to any forcible act. This unnatural conduct further weakens the prosecution case.

¶46

8

¶47

16. It is further contended that the medical evidence does not bring any support to the prosecution version. As per the MLC report (Ex.P/19), no external or internal injuries were found on the private part of the victim. Moreover, the FSL report (Ex.P/30) is negative and does not corroborate the allegations. The absence of any medical or forensic corroboration, when read in conjunction with the material inconsistencies in the prosecution evidence, creates a serious doubt regarding the veracity of the allegations. In such circumstances, the appellant is clearly entitled to the benefit of doubt. Accordingly, it is prayed that the present appeal be allowed and the appellant be acquitted of all the charges.

¶48

17. Per contra , learned counsel for the State has opposed the aforesaid submissions and supported the impugned judgment. It is submitted that the offences alleged are grave and heinous in nature, and that the learned trial Court has rightly recorded the conviction after a thorough and proper appreciation of the evidence on record.

¶49

18. It is further contended that the testimony of the victim is cogent, consistent, and inspires confidence. It is a settled principle of law that conviction can be based solely on the testimony of the victim, if it is found to be reliable and trustworthy, even in the absence of corroboration. It is also submitted that the learned trial Court has duly considered all the contentions raised on behalf of the appellant and has recorded findings based on sound reasoning and evidence. Therefore, it is urged that no illegality, perversity, or infirmity is discernible in the

¶50

9

¶51

impugned judgment of conviction and order of sentence, warranting interference by this Court. The appeal, being devoid of merit, deserves to be dismissed.

¶52

19. We have heard learned counsel for the parties at length and have perused the entire record of the learned trial Court with due care and circumspection.

¶53

20. The foremost question that arises for consideration in the present appeal is whether the victim was a minor, i.e., below 18 years of age, on the date of the alleged incident.

¶54

21. For the purpose of determination of the age of the victim, this Court has carefully scrutinized the evidence available on record. The prosecution has primarily relied upon the entry in the Admission– Discharge Register (Ex.P/10C), the progress report of the victim (Article ‘A-1’), and the testimony of the victim (PW-1). As per the Admission– Discharge Register and the progress report (Article ‘A-1’), the date of birth of the victim is recorded as 28.05.2005.

¶55

22. In her deposition before the Court, the victim (PW-1) stated her date of birth to be 28.05.2005. However, the father of the victim (PW-2), in his testimony, deposed that the victim was about 16 years of age and that her year of birth was 2005, without specifying the exact date of birth. He further admitted that he is illiterate and unaware of the precise date of birth of the victim.

¶56

23. The Headmaster (PW-4) of the victim’s school deposed that the

¶57

10

¶58

particulars of the victim were entered at Serial No. 1055 in the Admission–Discharge Register (Ex.P/10C), and that the victim was admitted to Class I on 11.07.2011. As per the said register, the date of birth of the victim is recorded as 28.05.2005. However, in his crossexamination, he candidly admitted that the said entries were not made by him and that he could not state the basis or the document on which the date of birth of the victim had been recorded. This admission substantially diminishes the evidentiary value and reliability of the said document.

¶59

24. Upon an overall and cumulative consideration of the facts and circumstances of the case, as well as the evidence on record, it becomes apparent that the prosecution has failed to produce cogent, reliable, and legally admissible evidence to conclusively establish the date of birth or age of the victim so as to prove that she was below 18 years of age at the time of the alleged incident. Mere reliance on the school Admission–Discharge Register (Ex.P/10C) and the progress report (Article ‘A-1’), in the absence of any foundational evidence regarding their authenticity or the source of the recorded date of birth, is insufficient to safely conclude that the victim was a minor.

¶60

25. Furthermore, the oral testimonies of the prosecution witnesses on the aspect of age are neither consistent nor definite and do not inspire confidence. In such circumstances, this Court is not persuaded to accept the prosecution’s assertion that the victim’s date of birth was 28.05.2005 or that she was a minor at the relevant point of time. The

¶61

11

¶62

benefit of doubt, therefore, must necessarily enure to the appellant.

¶63

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

¶64

“ 26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. "

¶65

27. The Hon’ble Supreme Court in paragraphs 40, 42, 43, 44 and 48

¶66

of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, reported in (2011) 2 SCC 385 , has observed as under:

¶67

“ 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

¶68

12

¶69

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.

¶70

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

¶71

"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."

¶72

13

¶73

43. 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:-

¶74

"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."

¶75

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

¶76

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

¶77

"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

¶78

14

¶79

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. ”

¶80

28. 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:-

¶81

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

¶82

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

XXXX

XXXX

XXXX

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)

¶87

15

¶88

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.

¶89

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.

¶90

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 scrutinized and accepted only if worthy of such acceptance.

¶91

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.

¶92

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.

¶93

16

¶94

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.

¶95

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.

¶96

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.

¶97

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. ”

¶98

29. Recently, in case of P. Yuvaprakash Vs. State represented by

¶99

Inspector of Police, 2023 (SCC Online) SC 846 , Hon'ble Supreme

¶100

17

¶101

Court has held in paras 14 to 17 as under :

¶102

“ 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 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.

¶103

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

¶104

18

¶105

"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."

¶106

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

¶107

"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)

¶108

19

¶109

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.

¶110

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

¶111

30. Upon an appreciation of the evidence on record, it emerges that the victim (PW-1) has stated her date of birth as 28.05.2005. PW-2, the father of the victim, in his testimony, deposed that the victim was about 16 years of age and that her year of birth was 2005, without specifying the exact date of birth. He further admitted that he is illiterate and unaware of the precise date of birth of the victim. PW-4, the Headmaster of the victim’s school, referred to the Admission–Discharge Register (Ex.P/10C), wherein the date of birth of the victim is recorded as 28.05.2005. However, in his cross-examination, PW-4 candidly admitted that the relevant entries were not made by him and that he could not state the basis or the document on which the said date of birth

¶112

20

¶113

had been recorded.

¶114

31. In view of the aforesaid evidence, this Court is of the considered opinion that the prosecution has failed to produce reliable, cogent, and legally admissible evidence to conclusively establish the age of the victim. The age of the victim has, therefore, not been proved in accordance with law, giving rise to a serious doubt in the prosecution case on this crucial aspect.

¶115

32. Apart from the aforesaid evidence, no primary or foundational document, such as a birth certificate or any contemporaneous public record (for instance, entries in a Kotwari Register), has been produced by the prosecution to establish that the victim was below 18 years of age on the date of the incident. The oral testimonies of PW-1 (victim) and PW-2 (father of the victim), coupled with the school records, including the Admission–Discharge Register (Ex.P/10C) and the progress report of the victim (Article ‘A-1’), do not inspire confidence in the absence of proof regarding the source or basis of the recorded date of birth.

¶116

33. In the absence of any foundational evidence, it cannot be ruled out that the date of birth recorded in the school documents was based on approximation or assumption. The prosecution has also failed to produce the underlying documents on the basis of which such entries were originally made in the school records. Consequently, the evidence relating to the age of the victim falls short of the standard required to conclusively establish her minority. Despite these deficiencies, the

¶117

21

¶118

learned trial Court proceeded to hold the victim to be a minor, which, in the considered opinion of this Court, is unsustainable in law.

¶119

34. The next question that arises for consideration is whether the appellant has committed rape upon the victim.

¶120

35. The victim (PW-1), in her deposition, stated that she knows and identifies the accused, Vishnu Prasad Dhidhi, as he had earlier visited her house and, since then, she has been acquainted with him. She stated that her date of birth is 28.05.2005. According to her, about one year prior to the incident, the accused had come to her house and is a distant relative of her mother. He gave her his mobile number and expressed his desire to speak with her. Thereafter, he spoke to her two to three times over the phone and conveyed his intention to marry her. She stated that she told the accused that he was like her brother, but he insisted that he still wished to marry her. She further deposed that when she asked the accused to come to her house, he did not do so. Instead, one night, the accused called her and informed her that he was standing near her house and asked her to come to him. On his asking, she went to meet him, whereafter he took her to his house at Murritih, where they stayed for one day. She further stated that when her parents called the accused on his mobile phone, he told them that she had not come to his house. Thereafter, the accused took her to Gariyaband to the house of his uncle and aunt. She stated that the accused took her to a Shankar Temple, where he married her, and thereafter took her to his house at Gariyaband. She further stated that the accused established

¶121

22

¶122

physical relations with her two to three times. After one day, the accused took her back to his house at Murritih. In the evening, at about 7–8 p.m., two police personnel arrived and took both her and the accused to Police Station Kharora.

¶123

36. She further stated that she was recovered from the custody of the accused and that a recovery panchnama (Ex.P/1) was prepared. Upon her production, her underwear, containing her used sanitary pad/cloth, was seized by the police vide seizure memo (Ex.P/2). She further deposed that prior to her medical examination, her consent was obtained (Ex.P/3). She was also produced before the Child Welfare Committee, Raipur, where her statement was recorded and counselling was conducted, the report of which is Ex.P/4. Her statement was also recorded before the Court of the Judicial Magistrate First Class under Section 164 of the Cr.P.C. (Ex.P/5), and the order-sheet is Ex.P/6. The Patwari map (Ex.P/7) was also prepared during the investigation.

¶124

37. It has further come on record that although in her statement under Section 164 of the Cr.P.C. (Ex.P/5), the victim stated that the accused had not used any force against her, in her statement under Section 161 of the Cr.P.C., she stated that the accused had established physical relations with her. Similarly, in her counselling report (Ex.P/4), she stated that the accused had established physical relations with her twice, and she has reiterated the same version in her deposition before the learned trial Court.

¶125

38. The father of the victim (PW-2) corroborated the statements made

¶126

23

¶127

by the victim, affirming the accuracy and consistency of her account.

¶128

39. The medical examination of the victim was conducted on 01.09.2021 by Dr. Nandini Soni (PW-5), and her reports are on record as Exs.P/19 and P/20. The Doctor deposed that the secondary sexual characteristics of the victim were fully developed and that, on examination, her hymen was found to be ruptured with irregular margins. The underwear of the victim, produced for examination, was found to have red and brown stains, and the sanitary pad was also stained with blood; the said articles were thereafter resealed and handed over to the concerned constable. However, the Doctor did not opine that the rupture of the hymen was recent or necessarily the result of forcible sexual intercourse; rather, she stated that such rupture could be caused by a hard and blunt object, thereby rendering the finding inconclusive. She further deposed that, for determination of the age of the victim, radiological (X-ray) examination was advised and a urine pregnancy test (UPT) was also recommended; however, no conclusive material in this regard has been brought on record.

¶129

40. Dr. S.R. Baghel (PW-6), who examined the appellant, deposed that he conducted the medical examination on 02.09.2021, and his reports are exhibited as Exs.P/21 and P/22. On examination, he found that smegma was absent and opined that the accused was capable of performing sexual intercourse. He further stated that the underwear of the accused was duly sealed and handed over to the concerned constable for chemical examination. However, the Doctor did not render

¶130

24

¶131

any opinion linking the appellant with the alleged act, nor do the findings indicate the time or occurrence of any sexual activity. It is well settled that the mere absence of smegma or a general opinion regarding potency is not conclusive proof of commission of rape, and in the absence of any corroborative forensic evidence, such medical findings do not materially advance the prosecution case.

¶132

41. As per the report of the State Forensic Science Laboratory (Ex.P/30), the underwear and slides of the accused, as well as the underwear, pad cloth, and slides of the victim, were subjected to chemical examination. The said report does not detect the presence of semen stains or human spermatozoa on the underwear, pad cloth, or slides of the victim, thereby providing no forensic corroboration to support the prosecution case.

¶133

42. It is a settled principle of criminal jurisprudence that the prosecution must prove its case beyond reasonable doubt by leading cogent, reliable, and unimpeachable evidence. Suspicion, however strong, cannot take the place of proof. It is equally well settled that a conviction in cases of sexual assault can be based solely on the testimony of the victim, provided that such testimony is found to be wholly reliable and inspires confidence.

¶134

43. Further, in Alamelu (supra) , where the facts and circumstances were similar to that of the present case, the Hon’ble Supreme Court observed as under:

¶135

25

¶136

“ 51. This Court in Rameshwar v. State of Rajasthan {AIR 1952 SC 54} declared that corroboration is not the sine qua non for a conviction in a rape case. In the aforesaid case, Vivian Bose, J. speaking for the Court observed as follows:-

¶137

"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, ... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."

¶138

52. The aforesaid proposition of law has been reiterated by this Court in numerous judgments subsequently. These observations leave no manner of doubt that a conviction can be recorded on the sole, uncorroborated testimony of a victim provided it does not suffer from any basic infirmities or improbabilities which render it unworthy of credence.

¶139

xxx xxx xxx

¶140

54. Even PW5, Thiru Thirunavukarasu stated that Sekar (A1) had brought the girl with him to his house and told him that he had married her. They had come to see Trichy and requested a house to stay. This witness categorically stated that he thought that they were newly married couple. He had made them stay in Door No. 86 of the Police Colony, which was under his responsibility. On 10th August, 1993, the police inspector, who arrived there at 10.00 p.m. told this witness that Sekar (A1) had married the girl by threatening her and "spoiled her". The girl, according to the prosecution, was

¶141

26

¶142

recovered from the aforesaid premises. Therefore, for six days, this girl was staying with Sekar (A1). She did not raise any protest. She did not even complain to this witness or any other residents in the locality. Her behavior of not complaining to anybody at any of the stages after being allegedly abducted would be wholly unnatural.

¶143

55. Earlier also, she had many opportunities to complain or to run away, but she made no such effort. It is noteworthy that she made no protest on seeing some known persons near the car, after her alleged abduction. She did not make any complaint at the residence of Selvi, sister of Sekar (A1) at Pudupatti. Again, there was no complaint on seeing her relatives allegedly assembled at the temple. Her relatives apparently took no steps at the time when mangalsutra was forcibly tied around her neck by Sekar (A1). No one sent for police help even though a car was available. She made no complaint when she was taken to the house of PW5, Thiru Thirunavukarasu and stayed at his place. Again, there was no protest when Sekar (A1) took her to the police station on 5th day of the alleged abduction and told at the Tiruchi Police Station that they had already been married. The above behaviour would not be natural for a girl who had been compelled to marry and subjected to illicit sexual intercourse.

¶144

56. In view of the aforesaid, we are of the considered opinion that the prosecution has failed to prove beyond reasonable doubt any of the offences with which the appellants had been charged. It appears that the entire prosecution story has been concocted for reasons best known to the prosecution. ”

¶145

44. In the light of the aforesaid settled principles, the evidence on record in the present case has been carefully evaluated. Upon an overall and cumulative assessment, this Court finds that the prosecution case is fraught with material inconsistencies and inherent

¶146

27

¶147

improbabilities. Though the victim (PW-1) has alleged sexual intercourse, her conduct, as elicited from the record, appears unnatural and does not inspire confidence. Despite having travelled through several places and having had opportunities to raise alarm or seek help, she did not disclose the alleged incident to any person. Even during her stay at the house of the appellant, where other family members were present, she neither raised any objection nor made any attempt to escape. Such conduct materially affects the credibility of the prosecution version.

¶148

45. The medical evidence also does not lend support to the prosecution case. The testimony of Dr. Nandini Soni (PW-5) indicates that although the hymen of the victim was found ruptured, no definite opinion was given that the same was the result of forcible sexual intercourse. No external or internal injuries suggestive of force were found. The medical findings, therefore, remain inconclusive and do not corroborate the allegations.

¶149

46. The forensic evidence further weakens the prosecution case. As per the report of the State Forensic Science Laboratory (Ex.P/30), no semen stains or human spermatozoa were detected on the slides, underwear, or other articles of the victim. In a case alleging repeated sexual intercourse, the absence of any forensic trace assumes significance and creates a serious doubt regarding the prosecution version.

¶150

47. In view of the aforesaid deficiencies, the testimony of the victim,

¶151

28

¶152

which is the foundation of the prosecution case, does not inspire the confidence required for sustaining a conviction. The material inconsistencies, coupled with the absence of medical and forensic corroboration, render it unsafe to rely solely upon her testimony.

¶153

48. Consequently, this Court is of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt. The appellant is, therefore, entitled to the benefit of doubt.

¶154

49. Accordingly, the appeal is allowed . The impugned judgment of conviction and order of sentence dated 05.07.2024 are hereby set aside. The appellant is acquitted of all the charges levelled against him. He is reported to be in custody and shall be released forthwith, if not required in any other case.

¶155

50. In view of the final disposal of the appeal, I.A. No. 1 of 2024 (application for suspension of sentence and grant of bail) does not survive for consideration and is accordingly disposed of .

¶156

51. Keeping in view the provisions of Section 437-A of the CrPC (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble

¶157

29

¶158

Supreme Court.

¶159

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

¶160

Sd/Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

¶161

Amit/Brijmohan

Vishnu Prasad Dhidhi v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Vishnu Prasad Dhidhi v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Divisional Secretary, Bhartiya Postal Employees Association (Group -C) Durg Division Vs Union of India

Smt. Anita Sinha Vs Johar Tekam

Aman Sahu Vs State of Chhattisgarh

Priya Mishra Vs University Grant Commission

Mangal Ram Usendi Vs State of Chhattisgarh

Hasdeo Aranya Bachao Sangharsh Samiti Vs Union of India