Dhananjay Barle Vs State of Chhattisgarh

The present appeal has been filed under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 31.03.2008 passed by the learned 11^th Additional Sessions Judge (Fast Track Court), Durg (C.G.) in

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Sessions Trial No. 153/2007, whereby, the learned trial Court has

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convicted the appellant and sentenced him as under:-

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Conviction	Sentence
U/s 376 of IPC	R.I. for 10 years and to pay a fine of Rs.5,000/- , in default of payment of fine, to further undergo R.I. for 1 year
U/s 376 of IPC	R.I. for 10 years and to pay a fine of Rs.5,000/- , in default of payment of fine, to further undergo R.I. for 1 year
U/s 366 of IPC	R.I. for 4 years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 6 months. (All the sentences shall run concurrently)

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The prosecution case, in brief, is that the prosecutrix, a minor aged about 16 years, was employed in a contracting business and used to accompany the accused, who is a mason, for work at Hingna Road. On the date of the incident, i.e. 08.07.2007, at about 8:00 AM, the accused came to the house of the complainant and took the prosecutrix along with him on the pretext of going to work. However, the prosecutrix did not return to her home till 8:00 PM on the same day. Upon making inquiries, the complainant came to know from one Khedva Sahu that the prosecutrix was last seen in the company of the accused, namely Dhananjay.

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Thereafter, the complainant lodged a missing report of his daughter at Police Station Nandini. On the basis of the said report, a case under Sections 363 and 366 of the Indian Penal Code was registered and investigation was commenced. During the course of investigation, the prosecutrix was recovered from the house of the accused’s maternal uncle, namely Sundarlal, situated in village Gadadih and on the basis of information given by the prosecutrix, the accused had committed rape on her. The prosecutrix was thereafter subjected to medical examination with the consent of her father. The accused was apprehended and also medically examined. The clothes worn by the prosecutrix and the accused were seized. During the medical examination of the prosecutrix, vaginal slides were prepared and the same were sent to the Forensic Science Laboratory, Raipur, for chemical examination. Upon completion of investigation, a charge-sheet was filed against the appellant for the offences punishable under Sections 363, 366A, and 376 of the Indian Penal Code before the learned Trial Court. Thereafter, the learned Trial Court framed charges against the appellant under Sections 363, 366, and 376 (on four counts) of the Indian Penal Code. The appellant denied the charges, pleaded not guilty and claimed to be tried in accordance with law.

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In order to establish the guilt of the accused/appellant, the prosecution examined as many as 11 witnesses. The statement of the accused/appellant was also recorded under Section 313 of the

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Code of Criminal Procedure, wherein he denied all the incriminating circumstances put to him and pleaded innocence, alleging false implication in the case. The accused/appellant, however, did not lead any evidence in defence.

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Upon appreciation of the oral as well as documentary evidence available on record, the learned Trial Court, vide judgment dated 31.03.2008, held the prosecution case to be proved and the evidence to be reliable and trustworthy. Consequently, the learned Trial Court convicted the accused/appellant for the offences punishable under Sections 366 and 376 (on two counts) of the Indian Penal Code and sentenced him as specified in paragraph 1 of the impugned judgment. Hence, this appeal.

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Learned counsel for the appellant submits that the impugned judgment of conviction and sentence passed by the learned Trial Court is erroneous, illegal and unsustainable in law as well as on facts. The learned Trial Court has gravely erred in convicting and sentencing the appellant for the alleged offences, as the findings recorded are contrary to the material available on record and settled principles of law. It is further submitted that the First Information Report (FIR), which forms the very basis of the prosecution case, has not been duly exhibited in accordance with law, thereby vitiating the entire trial. The learned Trial Court failed to properly consider that the prosecutrix (P.W.-4) was more than 16 years of age (approximately 16 years and 2 months) at the

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time of the alleged incident. The surrounding circumstances, her conduct and the overall facts of the case clearly indicate that she had voluntarily consented to accompany the appellant and engage in the alleged act. In such circumstances, the conviction of the appellant under Section 376 of the Indian Penal Code is wholly unwarranted. Moreover, as per the statements of P.W.5 (Mother) and P.W.6 (Father), the prosecutrix was about 20 years of age at the time of the incident. This material contradiction regarding age has not been properly appreciated by the learned Trial Court. If the prosecutrix was major, no offence under Sections 366A and 376 IPC is made out. It is also submitted that the prosecutrix had voluntarily accompanied the appellant from her place of work, out of her own free will and without any inducement, coercion, or threat. Hence, the essential ingredients of the alleged offences of abduction and rape are not established. In view of the aforesaid facts and circumstances, it is submitted that the findings, reasoning, conviction and sentence recorded by the learned Trial Court are perverse, bad in law and liable to be set aside.

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Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Keshav and another Vs. State of Maharashtra reported in 2025 SCC OnLine SC 989.

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On the other hand, learned State counsel submits that the impugned judgment of conviction and sentence passed by the

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learned Trial Court is well-reasoned, lawful and based on proper appreciation of evidence on record. The prosecution has successfully proved its case beyond reasonable doubt. Minor discrepancies regarding age or procedural aspects like exhibition of FIR do not affect the core of the prosecution case. The testimony of the prosecutrix is reliable and sufficient to sustain conviction. The plea of consent is untenable in the facts and circumstances of the case. Hence, no interference is called for and the appeal deserves to be dismissed.

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Heard counsel for the parties and perused the material available on record.

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It is evident from the record of the learned Trial Court that charges were framed against the appellant under Sections 363, 366 and 376 (on four counts) of the Indian Penal Code. Upon appreciation of the oral and documentary evidence adduced on record, the learned Trial Court convicted the appellant under Sections 376 (on two counts) and 366 of the IPC and sentenced him accordingly.

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As per the prosecution case, on the date of the alleged incident, the prosecutrix was below 18 years of age. The prosecutrix (P.W.4), in her testimony, has stated that she was approximately 16 years of age at the relevant time.

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The mother of the prosecutrix (P.W.-5), in her deposition, stated that her eldest son was about 24 years of age and the next younger son was about 22 years old. She further deposed that

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thereafter another son was born, followed by the prosecutrix, each at an interval of approximately two years. She also stated that at the time of her deposition, her eldest son was about 26 years of age.

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The father of the prosecutrix (P.W.-6), in his deposition, stated that the year of birth of the prosecutrix is 1992. He denied the suggestion put to him that her year of birth is 1989 and asserted that he had duly got her date of birth registered. He further admitted that his eldest son is about 26 years of age and deposed that he has five children, each born at an interval of approximately two years.

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Khedvaram Sahu (P.W.-7) deposed that the prosecutrix was engaged in road construction work on a contractual basis.

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Nandkumar Verma (P.W.-3), a school teacher, stated that he produced the school discharge register (Ex.P/4). As per the said register, the name of the prosecutrix is entered at Serial No. 77/3181, showing her date of admission as 11.07.2001 and her date of birth as 08.05.1991. He further proved the marksheet of the prosecutrix (Ex.P/5) and identified his signature thereon marked from ‘A’ to ‘A’..

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In his cross-examination, he admitted that he had not made the entry regarding the admission of the prosecutrix and had not obtained any certificate concerning her date of birth at the time of such entry. He further deposed that he was not aware of the basis

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on which the date of birth of the prosecutrix was recorded in the school register.

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The Hon'ble Apex Court in the matter of Alamelu and another

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Vs. State, represented by Inspector of Police, (2011) 2 SCC 385

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observed in paras 40 & 48 of its judgment 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.

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

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"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting

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election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a 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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16. In light of the aforesaid decision of the Hon’ble Supreme Court, this Court finds that in the present case, no cogent and legally admissible evidence has been brought on record by the prosecution to establish that the prosecutrix was a minor on the date of the incident. Despite this, the learned Trial Court recorded a finding in the impugned judgment that she was a minor. Accordingly, the said finding is set aside, and this Court holds that the prosecution has failed to prove that

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the prosecutrix was a minor at the relevant time.

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The prosecutrix (P.W.-4), in her deposition, stated that on the date of the incident, the accused came to her house and asked her to accompany him for work, whereupon she went with him. Thereafter, the accused took her to his sister’s house in village Khapri and subsequently to the house of his maternal uncle in village Bori. She further stated that while they were in village Bori, police personnel arrived in search of her, and thereafter both of them were taken to Ahiwara along with the police.

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In her cross-examination, the prosecutrix stated that had the police not arrived, she would not have returned and could have continued to stay with the accused at village Bori. She further admitted that while leaving with the accused, she did not inform anyone nor did she raise any alarm or disclose to any person during the journey that the accused had taken her forcibly.

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18. Dr. Smt. Mamta Pandey (P.W.-10), who medically examined the prosecutrix, deposed that no external or internal injuries were found on her body. She further stated that no definite opinion could be given regarding the commission of recent sexual intercourse. In this regard, she submitted her medical report, which is exhibited as Ex.P/12. 19. In the matter of Keshav (supra), the Hon’ble Apex Court held in paras 9 and 10 as under:-

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“9. State of Punjab v. Gurmit Singh 1 , held that even without any corroboration, if the evidence of the prosecutrix inspires

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confidence, it can be relied on and can also be the sole ground for conviction. However, if it is difficult to place implicit reliance on the testimony of the prosecutrix, then the Court has to look for evidence to lend assurance to her testimony which would be short of corroboration required in the case. The testimony of the prosecutrix must be appreciated in the background of the entire case, was the finding. Raju v State of M.P. 2 , while reiterating the above principle also cautioned that while rape causes the greatest distress and humiliation, a false allegation of rape also can cause equal distress, humiliation and damage to the accused as well. The Court should be equally careful in protecting the accused from a false implication. While applying the broad principle that an injured witness, whose presence cannot be doubted, as she would ordinarily not lie, still there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishments.

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10. Looking at the totality of the circumstances and the entire story as narrated by the victims, PW 2 and PW 3, we find difficulty in accepting their testimony to be one having sterling quality. We cannot also say that the story as narrated by the victims inspires confidence. Looking for assurance, we find the entire narration to be unbelievable and not substantiated on its finer details. As we noticed, nobody is examined from the matrimonial house to speak

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on the victims having left their residence without Informing their in-laws or their husbands. PW 4, as we noticed only speaks of having seen the victims along with the child travelling in a tempo, but he does not speak of the accused travelling along with them. Neither did he identify the accused in the dock nor was an attempt made by the prosecution to carry out such an identification, in Court. PWs 2 and 3 identified the accused and there was also a test identification parade carried out. However, their story of having been taken past Kurla and the rape in the deserted field does not inspire confidence. Likewise, the subsequent stay in Parbhani, that too for 15 days, is full of inconsistencies and police also did not carry out any investigation as to the place at which the victims stayed along with the child of two years.”

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Upon a close scrutiny and appreciation of the entire evidence on record, it becomes evident that the prosecutrix was a consenting party to the alleged act of the appellant. The material on record indicates that she voluntarily accompanied the appellant and stayed with him of her own free will. Further, in view of the finding already recorded by this Court that the prosecution has failed to establish that the prosecutrix was a minor on the date of the incident and considering the overall facts and circumstances of the case, no offence is made out against the appellant.

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21. In the result, the appeal is allowed. The impugned judgment dated

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31.03.2008 passed by the learned Trial Court is hereby set aside. The appellant is acquitted of the charges under Sections 366 and 376 (on two counts) of the Indian Penal Code.

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The accused/appellant is reported to be on bail, therefore, keeping in view the provisions of Section 437-A of CrPC (481 of the B.N.S.S.), appellant is directed to furnish a personal bond in terms of form No.45 prescribed in the Code of Criminal Procedure for a sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith 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 thereon shall appear before the Hon'ble Supreme Court.

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

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Sd/-

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(Rajani Dubey) JUDGE

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Ruchi Digitally signed by RUCHIYADAV

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RUCHI YADAV

Dhananjay Barle v. State of Chhattisgarh

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Dhananjay Barle v. State of Chhattisgarh

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