Chattisgarh High Court
Kailash Kumar Bareth vs State Of Chhattisgarh on 14 February, 2025
Author: Rajani Dubey
Bench: Rajani Dubey, Narendra Kumar Vyas
1
2025:CGHC:7983-DB
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 03-01-2025
Judgment delivered on : 14-02-2025
CRA No. 363 of 2020
1 - Rajiv Kumar @ Raju S/o Baratu Ram Yadav Aged About 26 Years R/o
Village- Jongra, Police Station- Sakti, District- Janjgir-Champa, Chhattisgarh,
At Presently Resided At Dindayal Colony Dhimrapur, Raigarh, Chhattisgarh.
2 - Satya Narayan Dewangan @ Satya S/o Vinay Kumar Dewangan Aged
About 30 Years R/o Palace Road Sarangarh, Ward. No. 13, Police Station-
Sarangarh, District- Raigarh, Chhattisgarh.
--- Appellants
versus
State Of Chhattisgarh Through Station House Officer- Chakradhar Nagar,
District- Raigarh, Chhattisgarh.
--- Respondent
CRA No. 404 of 2020
Tej Kumar (Wrongly Mentioned In The Judgment Raju) S/o Chandramani
Nishad Aged About 22 Years R/o Chandrapur Bhaliyapara, Police Station
Chandrapur, District Janjgir Champa Chhattisgarh
---Appellant
Versus
State Of Chhattisgarh Through The Station House Officer, Police Station
Chakradhar Nagar, District Raigarh Chhattisgarh.
- Respondent
2
CRA No. 559 of 2020
Akbar Khan @ Raj S/o Salim Khan Aged About 23 Years R/o Sarangarh,
Dipapara Police Station Sarangarh, District Raigarh Chhattisgarh.
---Appellant
Versus
State Of Chhattisgarh Through Police Station Chakradhar Nagar, District
Raigarh Chhattisgarh.
--- Respondent
CRA No. 79 of 2021
Kailash Kumar Bareth S/o Late Brihaspat Bareth Aged About 24 Years R/o
Chandrapur Yadav Mohalla, Thana Chandrapur, District Janjgir Champa,
Chhattisgarh
--- Appellant
Versus
State Of Chhattisgarh Through The Station House Officer, Police Station
Chakradhar Nagar, District Raigarh, Chhattisgarh.
--- Respondent
For Appellants : Mr. Ishwar Jaiswal, Mr. Anuroop Panda and Mr.
Rahil Arun Kochar, Advocates.
For Respondent : Mr. Akhilesh Kumar, Govt. Adv.
Hon'ble Smt. Justice Rajani Dubey, J
Hon'ble Shri Justice Narendra Kumar Vyas, J
C A V Judgment
Per Rajani Dubey, J
Since all these appeals arise out of judgment of conviction and order of
sentence dated 18.2.2020 passed by Additional Sessions Judge, Fast Track
Court, Raigarh in Special Criminal Case under the POCSO Act No.9/2019,
they are being disposed of by this common judgment. The appellants have
been convicted and sentenced as under:
Conviction Sentence
Appellant No.1 Rajiv Kumar in CRA No. 363/2020
Under Section 354 of Indian Penal RI for two years, fine of Rs.1000/-, in
Code. default to suffer additional RI for
three months.
Under Section 8 of Protection of RI for three years, fine of Rs.2000/-,
Children from Sexual Offences Act, in default to suffer additional RI for
2012. four months.
Appellant No.2 Satya Narayan Dewangan @ Satya in CRA No.363/2020
Under Section 12 of POCSO Act. RI for two years, fine of Rs.1000/-, in
default to suffer additional RI for
three months.
Appellant Tej Kumar in CRA No.404/2020 and appellant Kailash Kumar
Under Section 21 of POCSO Act. RI for six months, fine of Rs.1000/-,
in default to suffer additional RI for
three months.
Under Section 6 read with 17 of RI for twenty years, fine of Rs.5000/-,
POCSO Act. in default to suffer additional RI for
six months.
Appellant Akbar Khan @ Raj in CRA No. 559/2020
Under Section 376(2)(n)/376(3) of RI for twenty years, fine of Rs.5000/-,
IPC. in default to suffer additional RI for
six months.
Under Section 6 of POCSO Act. RI for twenty years, fine of Rs.5000/-,
in default to suffer additional RI for
six months.
All the sentences were directed to run concurrently.
02. Case of the prosecution, in brief, is that on 19.2.2019 father of the
prosecutrix lodged a missing report stating that on 18.2.2019 at around 11
pm her daughter/prosecutrix, aged about 14 years, had gone out of home
without informing anyone and is not traceable. Based on the written
complaint (Ex.P/1), the police registered FIR (Ex.P/2) against unknown
person under Section 363 of IPC. During investigation, she was recovered
on 24.1.2019 from a Rain Basera (Night Shelter/Lodge) at Bus Stand,
Transport Nagar vide recovery panchanama Ex.P/4. It revealed during the
course of investigation that on 18.1.2019 in the night accused Vivek @ Vicky
Yadav and accused Rajeev Kumar Yadav @ Raju offered lift to the
prosecutrix in their van. While she was sitting in the van, accused Rajeev
Yadav kissed her and accused Vivek @ Vicky took her to his home and
committed rape on her. Next day, accused Rajeev Yadav took her from the
house of accused Vivek and dropped her off at Chandrapur.
03. The prosecutrix purchased one used mobile at Chandrapur from one
mobile shop and accused Kailash, who was working in the said mobile shop,
purchased a SIM in his name and gave it to her and made arrangement for
her night stay in the house of his acquaintance Naina Manjhi. Next day
morning, accused Kailash got her dropped at Sarangarh through his friend
accused Tej Kumar Nishad @ Raju. Thereafter, accused Tej Kumar left her at
Sarangarh with accused Satyanarayan @ Satya Dewangan who molested
her. Accused Satyanarayan @ Satya, Tej Kumar and Kailash Bareth took the
prosecutrix to a garden for discussing about making arrangement for her stay
where accused Akbar Khan also came. There accused Kailash Bareth took
back the SIM from the prosecutrix which was given by him to her. Thereafter,
at the instance of accused Satyanarayan and Kailash, the prosecutrix went
to the house of accused Akbar where he made her drink liquor at night and
committed repeated sexual intercourse with her. Next day morning, accused
Satyanarayan and Akbar made her sit in a bus bound for Raigarh. At Raigarh
Bus Stand, she happened to meet accused Amit Singh who got her stay at a
lodge and in the evening took her on a motorcycle on the pretext of roaming
around and committed rape on her.
04. After recovery of the prosecutrix, her statement under Section 164 of
CrPC was recorded vide Ex.P/22. She was produced before the Child
Welfare Committee where her statement Ex.P/25 was recorded. Spot map
was prepared at the instance of prosecutrix vide Ex.P/3. After obtaining
consent of the prosecutrix and her mother, medical examination of the
prosecutrix was got done vide Ex.P/8 by PW-2 Dr. Menka Patel who advised
for her examination by radiologist and dentist for age determination. Vaginal
slides of the prosecutrix were prepared and sent to FSL for examination and
report Ex.P/83 was received from there. The accused persons were also
subjected to medial examination vide Ex.P/10, P/12 and P/14. Dakhil-kharij
register of the school where the prosecutrix was studying and the certificate
given on the basis of entry in the said register, were was seized vide Ex.
P/16 & P/17. After recording statements of witnesses and completing the
necessary formalities of investigation, charge sheet under Sections 363, 354,
354(A-1), 376, 34 of IPC and Sections 4, 6, 7, 8, 11, 12 & 18 of POCSO Act
was filed against the accused persons before the concerned jurisdictional
Magistrate.
05. Learned trial Court framed charges under Sections 376(2)(n), 376(3) of
IPC and Section 6 of POCSO Act against accused Akbar Khan; under
Section 376(3) of IPC and Section 6 of POCSO Act against accused Amit
Kumar Singh; under Sections 363, 354 of IPC and Section 8 of POCSO Act
against accused Rajeev Kumar @ Raju; under Section 376(3) of IPC and
Section 4 of POCSO against accused Vivek @ Vicky; under Section 354 of
IPC and Sections 8 & 12 of POCSO Act against accused Satyanarayan
Dewangan @ Satya; under Section 21 of POCSO Act against accused Tilak
Ram Sidar; under Sections 21 & 6/17 of POCSO Act against accused
Kailash Kumar Bareth and Tej Kumar Nishad. The accused persons abjured
their guilt and prayed for trial.
06. In order to prove its case the prosecution examined total 15 witnesses.
Statements of the accused persons were recorded under Section 313 of
CrPC in which they denied the incriminating circumstances appearing
against them in the prosecution case, pleaded innocence and false
implication. However, no witness was examined by them in defence.
07. Learned trial court after hearing counsel for the respective parties and
appreciating the oral and documentary evidence on record, convicted and
sentenced the accused/appellants as mentioned in para 1 of this judgment.
Hence these appeals.
08. Learned counsel for the appellants in CRA No. 363/2020 submits that
the impugned judgment is arbitrary, illegal and contrary to the facts and
circumstances of the case. There is no direct evidence to connect the
appellants with the crime in question. There is no allegation of sexual assault
against the appellants by the prosecutrix but ignoring this aspect, learned
trial court has convicted them which is illegal. Even there is no evidence
regarding age of the prosecutrix that she was minor on the date of incident.
There are material contradiction and omission in the statements of the
witnesses which makes the whole prosecution case doubtful.
09. Learned counsel for appellants in CRA No. 404/2020 and CRA No.
79/2021 would submit that the learned trial failed to appreciate para 37 of
cross-examination of the prosecutrix wherein she has stated that accused
Kailash and Tej Kumar have not committed any offence with her. Further,
PW-2 Dr. Menka Patel in para 8 of her cross-examination has clearly stated
that she did not notice any symptom of forcible sexual intercourse on the
body of the prosecutrix. The prosecution has also not proved the fact that the
prosecutrix was minor on the date of incident. There is absolutely no
evidence to prove that the appellants instigated or abetted the other accused
persons to commit the crime. Most importantly, names of appellants Tej
Kumar and Kailash are neither mentioned in the FIR nor in the statements
under Sections 161 & 164 of CrPC of the prosecutrix. Therefore, conviction
of these appellants is liable to be set aside.
10. Learned counsel for appellant in CRA No. 559/2020 would submit that
conviction of appellant Akbar Khan is bad in law as there is no positive and
legally admissible evidence to establish the offence of rape against him.
Statements of all the prosecution witnesses are full of contradiction, omission
and improvement, hence not reliable. Looking to the conduct of the
prosecutrix and the manner in which the incident is said to have taken place,
it prima facie appears to be a false and concocted case and as such, the
solitary testimony of the prosecutrix cannot be made the basis of conviction
of the appellant. Even medical evidence also lends no support to the
prosecution case regarding rape. No cogent and reliable evidence as to age
of the prosecutrix is there on record. The person who made entry in the
Dakhil-kharij register regarding date of birth of the prosecutrix has not been
examined. The FIR was lodged on 19.1.2019 and there has is no conclusive
proof as to on which date the accused made physical relation with her. No
explanation has been given by the prosecution for this delay. He further
submitted that there is no proof of compliance of Section 157 of CRPC and
there are circumstances which indicate that the report was not even lodged
on the same day but it was written on the next day mentioning ante-date and
time. He submits that even as per prosecution case itself the prosecutrix had
ample opportunities to raise hue and cry to escape from the clutches of the
accused persons but she didn't do so. As per statement of the prosecutrix, no
offence of rape was committed by the appellant Akbar Khan.
Reliance has been placed on the decisions in the matters of Alamelu
and others Vs. State represented by Inspect of Police and others, (2011)
2 SCC 385, Sanjay Kumar Nayak Vs. State of CG, AIR 2006 SC 2157 and
order dated 3.10.2024 of this Court in CRA No.154/2023, Shatruhan
Nirmalkar Vs. State of CG and other connected appeals.
11. On the other hand, learned counsel for the State opposing the
contention of the appellants would submit that the learned trial Court after
due appreciation of oral and documentary evidence on record has rightly
convicted and sentenced the appellants by the impugned judgment which
calls for no interference by this Court. Therefore, all these appeals being
devoid of any substance are liable to be dismissed.
12. Heard learned counsel for the respective parties and perused the
material available on record.
13. It is clear from the record of learned trial Court that the accused Akbar
Khan was charged under Sections 376(2)(n), 376(3) of IPC and Section 6 of
POCSO Act; accused Amit Kumar Singh was charged under Section 376(3)
of IPC and Section 6 of POCSO Act; accused Rajeev Kumar @ Raju was
charged under Sections 363, 354 of IPC and Section 8 of POCSO Act;
accused Vivek @ Vicky under Section 376(3) of IPC and Section 4 of
POCSO; accused Satyanarayan Dewangan @ Satya under Section 354 of
IPC and Sections 8 & 12 of POCSO Act; accused Tilak Ram Sidar under
Section 21 of POCSO Act and accused Kailash Kumar Bareth and Tej Kumar
Nishad under Sections 21 & 6/17 of POCSO Act. After appreciation of oral
and documentary evidence, the learned trial Court acquitted accused Amit
Kumar Singh of charge under Section 376(3) of IPC and Section 6 of
POCSO Act; accused Rajeev Kumar @ Raju of the charge u/s 363 of IPC;
accused Vivek @ Vicky of the charge u/s 363, 376(3) of IPC and Section 4 of
POCSO Act; accused Satyanarayan @ Satya of the charge u/s 354 of IPC
and Section 8 of POCSO Act and acquitted accused Tilakram Sidar of the
charge u/s 21 of POCSO Act.
14. As per prosecution case, on the date of incident the prosecutrix was
below 18 years of age. Learned trial Court relying upon the entry regarding
date of birth of the prosecutrix made in Dakhil-Kharij register and certificate
of the Principal (Ex.P/17) came to the conclusion that on the date of incident
she was below 16 years of age.
15. PW-1 prosecutrix states that her age is 14 years and her date of birth
is 6.9.2004. However, she then volunteers that actually she is 17 years and
her birth year is 2002. In cross-examination she admits that as per school
register, her date of birth is 6.9.2005.
16. PW-10 mother of the prosecutrix states that date of birth of her
daughter/prosecutrix is 6.9.2005. She admits in cross-examination that she
does not remember as to after how many years of her marriage, the
prosecutrix was born. She volunteers that the prosecutrix is getting 14 years.
She also admits that no birth certificate of the prosecutrix was given to the
police.
17. PW-13 father of the prosecutrix also states that date of birth of the
prosecutrix is 6.9.2005. He also admits that birth of the prosecutrix took
place at their home in Bihar and he did not get birth certificate of the
prosecutrix prepared. He states that copy of the birth certificate given to them
by the Sarpanch was submitted in the school and neither original nor copy
thereof was given to the police.
18. PW-3 Ignasiyus Kerketta, Teacher, states that due to preoccupation of
the Principal, he has appeared with her authorization letter for recording of
evidence. He has proved seizure of Dakhil-Kharij register from the Principal
by the police vide Ex.P/37. He states that this register records date of birth
of the prosecutrix as 6.9.2005. He has proved signature of the Principal on
the said register. In cross-examination he states that it is true that they admit
children in their school after seeing their birth certificate. However, he admits
that there is no birth certificate of the prosecutrix annexed with the Dakhil-
Kharij register. He also admits that it is not mentioned in this register that
date of birth of the prosecutrix is recorded on the basis of her birth certificate.
19. PW-2 Dr. Menka Patel medically examined the prosecutrix and
advised for examination of the prosecutrix by a radiologist and dentist for age
determination vide her report Ex.P/8. She admits that no such examination of
the prosecutrix for age determination was got done.
20. The Hon'ble Apex Court in the matter of Alamelu and another Vs.
State, represented by Inspector of Police, (2011) 2 SCC 385 observed in
paras 40 & 48 of its judgment as under:
"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.
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:-
"The age of a person as recorded in the school register or
otherwise may be used for various purposes, namely, for
obtaining admission; for obtaining an appointment; for
contesting election; registration of marriage; obtaining a
separate unit under the ceiling laws; and even for the purpose
of litigating before a civil forum e.g. necessity of being
represented in a court of law by a guardian or where a suit is
filed on the ground that the plaintiff being a minor he was not
appropriately represented therein or any transaction made on
his behalf was void as he was a minor. A court of law for the
purpose of determining the age of a 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."
21. The Supreme Court in the matter of Manak Chand alias Mani vs.
State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid
down by it in the matter of Birad Mal Singhvi vs. Anand Purohit, 1988
(Supl.) SCC 604 and observed that the date of birth in the register of the
school would not have any evidentiary value without the testimony of the
person making the entry or the person who gave the date of birth. It was
further reiterated that if the date of birth is disclosed by the parents, it would
have some evidentiary value but in absence the same cannot be relied upon.
For sake of brevity para No. 14 & 15 of the judgment are reproduced
hereunder:-
"14 This Court in Birad Mal Singhvi v. Anand Purohit (1988)
Supp SCC 604 had observed that the date of birth in the register of
a school would not have any evidentiary value without the
testimony of the person making the entry or the person who gave
the date of birth.
"14.... The date of birth mentioned in the scholar's register
has no evidentiary value unless the person who made the
entry or who gave the date of birth is examined. The entry
contained in the admission form or in the scholar's register
must be shown to be made on the basis of information given
by the parents or a person having special knowledge about
the date of birth of the person concerned. If the entry in the
scholar's register regarding date of birth is made on the basis
of information given by parents, the entry would have
evidentiary value but if it is given by a stranger or by someone
else who had no special means of knowledge of the date of
birth such an entry will have no evidentiary value."
15. In our opinion, the proof submitted by the prosecution with
regard to the age of the prosecutrix in the form of the school
register was not sufficient to arrive at a finding that the prosecutrix
was less than sixteen years of age, especially when there were
contradictory evidences before the Trial Court as to the age of the
prosecutrix. It was neither safe nor fair to convict the accused,
particularly when the age of the prosecutrix was such a crucial
factor in the case."
22. In light of aforesaid decisions of the Hon'ble Supreme Court, we find
that in the present case, there is no such clinching and legally admissible
evidence brought on record by the prosecution to prove the fact that the
prosecutrix was minor on the date of incident. Though Dakhil-Kharij
registered has been produced by the prosecution but author of the entry
made in the said register regarding date of birth of the prosecutrix has not
been examined. There is no evidence to show as to on what basis the said
date of birth was entered in this register. Despite being advised by PW-2 Dr.
Menka Patel, no medical examination of the prosecutrix was got done by the
prosecution for determining her age. Thus, it is clear that the prosecution has
failed to prove the fact that at the time of incident the prosecutrix was minor.
23. PW-1 prosecutrix states that she did not like her parents and not want
to live with them, so she went out of the house at 11 pm all alone and called
her friend Nihal Sharma on mobile. She had already eloped with him earlier.
On being called, Nihal Sharma came with his two friends at the indicated
place but she refused to go with them. Then Nihal Sharma called his brother
Abhishek Sharma who scolded them and told that he would drop them at
their house, on which she declined. However, as there she had some dispute
with Nihal, she started going all alone from there but Nihal was making her
phone calls repeatedly, so she threw the SIM after breaking it. Thereafter,
accused Rajeev and Vivek met her near bypass who were in a van. Rajeev
asked her as to where she was going, on which she replied that they have
nothing to do with it. Rajeev insisted for giving her lift and Vivek also tried to
convince her. Thereafter, she sat in their van and they took her towards
bypass. Rajeev told that they cannot leave her at night, so she should go to
the house of Vivek. Thereafter, Rajeev went back to his house in van and
she went with Vivek on his motorcycle to his house at Beladula where one
friend of Vivek was there who was in an inebriated condition. There Vivek
asked her to leave her at her house. She further states that as she had
talked with one person from the mobile of Rajeev, so her father was
repeatedly calling Rajeev on his mobile. Hence Rajeev came to the house of
Vivek and took her to Chandrapur and at that time also Vivek asked for
dropping her at her house but she declined. Thereafter, they left her at
Chandrapur and moved away. There she purchased a mobile in exchange of
her chain and narrated the whole incident to the shopkeeper. Accused
Kailash who was working in the said shop, called his friend. His friend then
took her to her house where she stayed the whole night. Next morning, she
along with Kailash and his friend went towards Chandrapur Mandir where
Kailash called Raju and asked him to leave her at Sarangarh. Thereafter,
Raju left her at Saragarh on his motorcycle and asked as to where she would
stay, on which she requested him to make her arrangement in any lodge as
she has run away from home. Raju asked her to wait near Prince Lodge
where his friend is coming. When she asked the staff member of Prince
Lodge for staying there, he replied that if she pleased the customers, she
would be allowed to stay there. She informed about it to Raju over phone but
he went away from there saying that he is getting a call from his home.
24. The prosecutrix states that thereafter she went to Sarangarh bus stand
and after charging her mobile again called Raju who asked her to come near
Prince Lodge and go with the boy standing there with a scooty. Accused
Satya was also there with that boy. She went with that boy on his scooty to
an outer area and accused Satya was also with them on his motorcycle.
However, on the way that boy misbehaved with her, on which she scolded
him and informed accused Satya about it. Satya said to her that Raju told
them to make arrangement for her but when she asked Raju over phone, he
denied to have said so, rather he told that she is not that kind of girl. After her
refusal to go with that boy, Satya asked her to come to his home, then she
went to his home at Sarangarh where his wife was there. However, he
forbade her from telling anything to his wife and told that Raju and Kailash
would come in the evening, then they will plan further. In the evening, Raju
and Kailash came to his house and then she along with Satya, Kailash and
Raju went to a garden at Sarangarh for discussion where accused Akbar
arrived. They asked her to drop her at her house but she declined. At that
point of time, Kailash informed that police came in search of you
(prosecutrix) at Chandrapur and then broke the SIM given to her by him.
Thereafter, Raju left her at the house of Akbar where mother and brother of
Akbar were there. She stayed there at night. However, after leaving her there
Akbar went to his friends and returned at night. She states that she had
another SIM, she talked with Nihal Sharma who told her that he is coming to
take her back but she refused because police were searching her and asked
her to be in contact.
She further states that Akbar came at night and asked her if she
consumes liquor and she told him that she does occasionally. Thereafter,
Akbar brought liquor and made her drink liquor. After that she fell asleep and
and has no knowledge what happened thereafter. At around 1 am she heard
that Akbar's mother was shouting at him; Akbar told her that she is
responsible for this quarrel and she should have stayed in a lodge.
Thereafter, she along with Akbar went into another room and Akbar moved
away from there. Then she called Nihal and informed him about the whole
incident, on which he told her as to why she consumed liquor, if anything
would have been done to her, she could not remember and told her to ask
Akbar about it and don't disconnect the call. When she asked Akbar as to
what had happened at night, he said that nothing such happened and started
laughing. Thereafter, Akbar slept in the room and she was also there in that
room surfing her mobile. She states that next day at 3 am she along with
Akbar left the home and met accused Satya at 5 am at bypass road.
Thereafter, Akbar leaving her with Satya went away saying that he would
come back after getting fuel refilled in the vehicle. When she was with Satya,
he told her that he felt like kissing her, on which she warned him to stay away
from her. When Akbar came back, she asked him to make a phone call to
Raju and Kailash and then she talked to them over phone. They told her to
go back home. She states that when she informed Akbar about the conduct
of Satya, he said to her "he (Satya) is only saying, everything happened
between you and me at night". When she asked as to what happened, he
replied that only kissing. Thereafter, Akbar and Satya left her at Baramkela
where Nihal Sharma came to meet her as she had already told him to come
there and asked her to leave for Raigarh but when she refused, he made her
sit in a bus with his friend Ashutosh for going to Raigarh. At Sarangarh bus
stand she called Abhishek, brother of Nihal and on his arrival, she narrated
the whole incident to him and went to the house of Ashutosh where she
informed about the entire incident to his uncle who is in police department.
Though his uncle insisted for lodging report, however, on their request not to
lodge report or else she would be defamed in the society, he did not lodge
any report.
25. She further states that she went to Rain Basera with accused Amit
where accused Tilak was there and she stayed there for 3-4 days. On the
same day accused Amit came to her at Rain Basera and insisted for going
out to roam around, so she went with him on his bike towards city. However,
while returning she asked as to why he to going back by a different route, on
which he replied that it is a shortcut and asked her for sexual favour, to which
she scolded him. Thereafter, accused Amit stopped the bike and tried to
touch her. At that time, one car was coming from opposite direction, she told
him that she is going to stop it, on which he got afraid and left her at Rain
Basera. Thereafter, she made a call to her friend Kailash who informed her
that Rajeev, Akbar, Vivek, Kailash, Raju and Satya have been apprehended
by the police and asked her to talk to Nihal. At that time, she received a call
from Nihal. Next day, the police reached Rain Basera and took her to police
station.
26. She was declared hostile by the prosecution and cross-examined
where she admitted that she left her home with her clothes and Rs.5,000/-
without informing her mother and father. In her statement under Section 164
of CrPC, the prosecutrix states that accused Akbar forcibly made her drink
liquor and thereafter made forcible indecent advancement to her and that
she was not aware of all this and Akbar told her about this in the morning.
However, when prosecution after declaring her hostile cross-examined her
she states that Akbar forcibly made her drink liquor and then committed rape
on her whereas accused Satya and Amit molested her. She denied the
suggestion that accused Amit committed forcible sexual intercourse with her.
27. In para 36 she states that after consuming liquor at the house of Akbar
she slept there and next day Akbar told her that he had kissed her. She
further admits that Akbar told her that he did nothing to her. She then
volunteers that it was told in presence of Satya. In para 37 she admits that
accused Kailash and Tejkumar did not do anything wrong to her and she did
not lodge any report against them with the police. In para 35 she admits that
she went with Raju and Vivek at the behest of Deepak of her own. In para 31
she admits that Vicky @ Vivek did not misbehave with her in any manner, he
wanted to drop her at her house and that she went to Chandrapur of her own
will.
28. PW-4 Renu Mandavi registered FIR (Ex.P/2) on the basis of written
complaint Ex.P/1 of the complainant and admitted that the complainant told
her that she had scolded the prosecutrix regarding studies, therefore, she
went away without telling anyone.
29. PW-5 Naina Mali, PW-6 Sitaram Patel and PW-9 Sameer Pandey have
not supported the prosecution case. The prosecution declared them hostile
and cross-examined where they denied all the suggestions of prosecution.
30. PW-8 Pawan Parmanik states that the prosecutrix was recovered from
a Rain Basera at new bus stand as per recovery memo Ex.P/4 which bears
his signature from B to B part. In cross-examination he admits that he signed
this document at the behest of police. In para 23 he states that accused Tilak
was with the prosecutrix at the Rain Basera when she was recovered from
there. He also admits that in the recovery memo it is not mentioned that the
prosecutrix was recovered from the possession of any particular person.
31. PW-10 mother of the prosecutrix and PW-13 father of the prosecutrix
state that the prosecutrix left the home of her own and they searched for her
and when she was found nowhere, a missing report was lodged with the
police. They denied the suggestion that they had scolded the prosecutrix in
connection with her studies, therefore, she left home.
32. PW-2 Dr. Menka Patel examined the prosecutrix on 25.1.2019 and did
not find any external or internal injury on her body. In her opinion, the
prosecutrix was habitual to sexual intercourse. Her report is Ex.P/8. In cross-
examination she admits that during medical examination of the prosecutrix
she did not find any symptom of forcible sexual intercourse on her body.
33. As already discussed above, based on the oral and documentary
evidence adduced by the prosecution it has failed to prove that the
prosecutrix was below 18 years of age on the date of incident. A bare
perusal of the evidence of the prosecutrix shows that her conduct during the
alleged incident is very suspicious. She admits that she left her home as she
does not like her parents and thereafter met the accused persons. However,
her parents have stated that they never scolded her for studies and that on
the night when she left her home also they did not rebuke her. This apart, the
prosecutrix alleges that accused Akbar committed rape upon her after
making her drink liquor. However, she also admits that after consuming
liquor, she slept and did not know what happened thereafter. Further, she
states that it is accused Akbar who told her later that he committed rape on
her after making her drink liquor. From her evidence it is clear that she had
ample opportunities to go back to her home or inform the police about the
alleged act of the accused persons but she deliberately did not do so and
continued to roam around with the accused persons from one place to
another till she was recovered by the police from the Rain Basera. She
herself states that on many occasions the accused persons asked her for
dropping her at her home but she refused.
34. It is a trite law that to hold an accused guilty for commission of an
offence of rape or sexual assault, the solitary evidence of prosecutrix is
sufficient provided the same inspires confidence and appears to be
absolutely trustworthy, unblemished and should be of sterling quality.
Ordinarily the evidence of the 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 her evidence is reliable, no
corroboration is necessary. While rape causes the greatest distress and
humiliation to the victim, a false allegation of rape causes equal distress,
humiliation and damage to the accused as well. The accused must also be
protected against the possibility of false implication. Indisputably, in a case of
sexual assault, the evidence of the prosecutrix must be given predominant
consideration, but to hold that this evidence has to be accepted even if the
story is improbable and belies logic, would be doing violence to the very
principles which govern the appreciation of evidence in a criminal matter.
35. Keeping in view the aforesaid settled legal principles, if we examine
the evidence of the prosecutrix, her conduct during the alleged incident and
subsequent thereto, it transpires that she was a consenting party to the act of
the accused/appellants. Her evidence is neither corroborated by any oral or
medical evidence at all. Thus, in the given facts and circumstances of the
case and the evidence adduced by the prosecution, we have no hesitation in
holding that the prosecution has miserably failed to prove its case against the
appellants beyond reasonable doubt and as such, learned trial Court was not
justified in holding them guilty of the offence under Sections 6, 6/17, 8, 12, 21
of the Act of 2012 and Section 376(2)(n)/376(3) of IPC.
36. In the result, all the criminal appeals are allowed. The impugned
judgment of the learned trial Court is hereby set aside and consequently, the
appellants are acquitted of the charges leveled against them by extending
them benefit of doubt. Appellants Tej Kumar, Kailash Kumar Bareth, Rajeev
Kumar @ Raju and Satyanarayan Dewangan @ Satya are reported to be on
bail, therefore, their bail bonds shall remain in operation for a period of six
months from today in view of provisions of Section 481 of Bharatiya Nagarik
Suraksha Sanhita, 2023.
Appellant Akbar Khan is reported to be in jail, therefore, he be set free
forthwith if not required in connection with any other offence. However, as
per provisions of Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023,
he shall execute a bail bond for a sum of Rs.25,000/- to the satisfaction of
the trial Court for his appearance before the higher Court as and when such
Court issues notice in respect of any appeal or petition filed against this
judgment and such bond shall be in force for a period of six months.
Let a copy of this judgment along with the original record be
transmitted to the trial Court concerned for necessary information and
compliance.
Sd/ Sd/
(Rajani Dubey) (Narendra Kumar Vyas)
Judge Judge
Digitally
MOHD signed by
AKHTAR MOHD
KHAN AKHTAR
KHAN
Khan
