[Cites 24, Cited by 0]
Chattisgarh High Court
Balakram Baghel vs State Of Chhattisgarh on 25 February, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:9810-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 938 of 2021
1 - Balakram Baghel S/o Sukulram Baghel Aged About 19 Years, Caste
Mahara, R/o Vill. Munga Kotawarpara, Thana Darbha, Distt. Bastar,
Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh
... Appellant
versus
1 - State of Chhattisgarh Through Aarkshi Kendra - Parpa / AJAK
Jagdalpur, Distt. Bastar, Chhattisgarh., District : Bastar(Jagdalpur),
Chhattisgarh
... Respondent
(Cause-title taken from Case Information System)
For Appellant : Mr. Vikas A. Shrivatava, Advocate.
For State : Mr. Sourabh Sahu, Panel Lawyer.
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
25-02-2026
1. The present appeal under Section 374(2) of the Cr.P.C. has been
filed by the appellant against the judgment of conviction and order
of sentence dated 29-07-2021 passed by the learned Special
Judge under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (in short' the SC/ST Act')/
Special Court (POCSO Act), Bastar place Jagdalpur in Special
Digitally signed by
MOHAMMED
AADIL KHAN
Date: 2026.02.28
15:04:50 +0530
Criminal Case (POCSO) No.19/2019, whereby the appellant has
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been convicted and sentenced in the following manner with a
direction to run all the jail sentences concurrently:-
Conviction Sentence
U/s 376 of the IPC R.I. for 10 years and fine of Rs.2,000/-,
in default of payment of fine additional
R.I. for 4 months.
U/s 3(2)(v) of the Life Imprisonment and fine of
SC/ST Act Rs.2,000/-, in default of payment of fine
additional R.I. for 4 months.
2. Brief facts of the case are that, on 25-10-2019 the mother of the
victim PW-2 lodged a report, Ex.P/1 to police to the effect that on
19-10-2019 when she came back to her house after her work, she
could not find her minor daughter there and then they started
searching her. On 21-10-2019 the friend of her daughter asked
her to talk to the victim in her mobile phone and then she had
contacted with her and she disclosed that she is at village Munga
Tirathgarh and informed that the appellant took her with him on
the pretext of marriage and committed rape upon her. On 22-10-
2019 her daughter came back to her house and informed the
entire incident. The FIR Ex.-P/10 was registered for the offence
under Section 363, 366A and 376 of the IPC and Section 6 of the
POCSO Act. The victim was sent to Maharani Hospital Jagdalpur
where she was initially medically examined by PW-29 Doctor
Manisha Goyal, she gave her report Ex.-P/56. While medically
examining the victim she noticed no injury on her body and opined
that no definite opinion regarding sexual assault cant be given.
Two slides of her vaginal swab were prepared, sealed and
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handed over to police for its chemical examination. Her
underwear has been seized vide seizure memo Ex.-P/4. Spot
map Ex.-P/5 was prepared by Patwari and Ex.-P/11 was prepared
by police. The social status certificate of the victim was also
seized vide seizure memo Ex.-P/12 and the copy of her social
status certificate is Ex.-P/13. With respect to the age and date of
birth of the victim police has seized mark sheet of class 5 of the
victim vide seizure memo Ex.-P/14 and the mark sheet is
Ex.-P/15. As per the mark sheet of class 5, the date of birth of the
victim is 07-06-2003. The school register has also been seized by
police vide seizure memo Ex.-P/30 and attested true copy of the
school register is Ex.-P/31C and Ex.-P/32C. According to the
school register the date of birth of the victim is also 07-06-2003.
Based on school register a certificate Ex.-P/33 is also obtained
from the Head Master of the school. The accused was arrested on
26-10-2019 and he too was sent for his medical examination to
Medical College Dimrapal where he was medically examined by
PW-17 Doctor Manoj Kumar Chandra who gave his report
Ex.-P/36. While medically examining the appellant no external
injuries were found on his body and it has been opined that there
is no any abnormality which would suggest that he cannot perform
sexual intercourse in ordinary course of nature. The underwear of
the appellant has also been seized by police vide seizure memo
Ex.-P/47. The motorcycle has also been seized vide seizure
memo Ex.-P/49. The underwear of the victim, her vaginal slides
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and underwear of the appellant were sent for its chemical
examination to regional FSL, Jagdalpur, from where report Ex.-
P/52 was received and according to the FSL report in the
underwear of the victim semen and sperm were found, however,
in the vaginal slides and underwear of the appellant no semen
and sperm were found. Statement of witnesses under Section 161
of Cr.P.C. and statement of the victim under Section 164 of Cr.P.C.
were recorded and after completion of usual investigation, charge-
sheet was filed against the appellant before the learned trial Court
for the offence under Section 363, 366A, 376 IPC, Section 6 of
the POCSO Act and Section 3(2)(v) of the SC/ST Act.
3. The learned trial court framed charge against the appellant for the
offence under Section 363, 366A, 376 IPC, Section 6 of the
POCSO Act and Section 3(2)(v) of the SC/ST Act. The appellant
denied the charge and claimed trial.
4. In order to prove the charge against the appellant, the prosecution
has examined as many as 33 witnesses. The statement of the
appellant under Section 313 of CrPC has also been recorded in
which he denied the circumstances that appears against him,
pleaded innocence and has submitted that he has been falsely
implicated in the offence.
5. After appreciation of the oral as well as the documentary evidence
led by the prosecution, the trial court has convicted and
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sentenced the appellant as mentioned in the earlier part of this
judgment. Hence this appeal.
6. Learned counsel for the appellant would submit that the
prosecution has failed to prove its case beyond reasonable doubt.
There are material omissions and contradictions in the evidence
of prosecution witnesses. There is no cogent and legally
admissible evidence available on the record to show that the
victim was minor and less than 18 years of age on the date of the
incident. The school register has not been proved in accordance
with rules. The said school record is of Class-5 whereas there is
no record of initial schooling of victim. Therefore, without there
being any basis on which entries have been made in the said
school record, the same cannot be taken into consideration for
determination of the age of victim. He would further argue that the
victim was having love affair with the appellant and was a
consenting party in making physical relationship with the
appellant. There is no birth certificate seized during the course of
investigation. Therefore, from the evidence it is proved that victim
was not minor, but was a major girl despite that the trial court held
her minor which is contrary to facts available on record. Further,
no injury was found on the body of the victim during her medical
examination and it was opined that no definite opinion can be
given about sexual intercourse. From the evidence of the
witnesses it is clear that the victim was consenting party and
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also that no offence under the SC/ST Act is made out against the
appellant and thus he is entitled for acquittal.
7. On the other hand, learned counsel for the state opposes the
arguments advanced by the learned counsel for the appellant and
submits the the evidence of prosecution witnesses are fully
reliable. The age of victim has been proved from school record
which is proved by PW-16, who is Head Master of the school. The
victim was minor on the date of the incident, and her consent is
immaterial. The evidence of the victim need not be required for
any corroboration and on the sole testimony of the victim, the
conviction can be made. Further, from the evidence of witnesses,
the guilt of appellant has duly been proved. Therefore, the
impugned judgment of conviction and sentence needs no
interference.
8. We have heard learned counsel for the parties and perused the
records carefully.
9. The first and foremost question arises for consideration would be
the age of victim as to whether she was minor on the date of
incident or not?
10. In the present case, the prosecution has mainly relied upon
school register, Ex.-P/31C, Ex.-P/32C, certificate Ex.-P/33 and
also mark sheet of class 5 of the victim Ex.-P/15. The school
register is sought to be proved by PW-16, who is Head Master of
the School. He stated in his evidence that with respect to age and
date of birth of the victim the police has seized the school register
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vide seizure memo Ex.-P/30 and after retaining its attested true
copy, the original register was returned back which he brought
with him. As per the school register, the date of birth is recorded
as 07-06-2003. On the basis of the school register he issued the
certificate Ex.-P/33. In cross examination, he admitted that at the
time when the victim was admitted in the school he was not
posted there. He did not know as to whether at the time of her
admission in the school her birth certificate was demanded or not.
He further admitted that generally the documents submitted by the
student at the time of their admission it is to be recorded in the
school register and on that basis the date of birth of the students
are recorded in it. He further admitted that with respect to the date
of birth of the victim there is no endorsement or note in the school
register about any document. From the evidence of this witness it
is quite vivid that he is neither author of the school register nor
any document has been annexed with the school register on the
basis of which the date of birth of victim was recorded.
11. The admissibility and evidentiary value of the school register has
been considered by the Hon'ble Supreme Court in the matter of
Alamelu and Another Vs. State, represented by Inspector of
Police, 2011(2) SCC 385 , In paragraphs 40 and 48 of the
judgment in Alamelu (Supra), the Hon'ble Supreme Court has
observed 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
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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 (2006) 5
SCC 584 party to the lis, having regard to the provisions of
Section 35 of the Evidence Act will have to apply the same
standard. No different standard can be applied in case of an
accused as in a case of abduction or rape, or similar offence
where the victim or the prosecutrix although might have
consented with the accused, if on the basis of the entries made in
the register maintained by the school, a judgment of conviction is
recorded, the accused would be deprived of his constitutional
right under Article 21 of the Constitution, as in that case the
accused may unjustly be convicted."
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12. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &
Others, 2022 (8) SCC 602, while considering various judgments,
the Hon'ble Supreme Court has observed in para 33 as under :
"33. What emerges on a cumulative consideration of the aforesaid
catena of judgments is as follows:
33.2.2. If an application is filed before the Court claiming juvenility, the
provision of sub-section (2) of section 94 of the JJ Act, 2015 would
have to be applied or read along with sub-section (2) of section 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 XXX
33.3. That when a claim for juvenility is raised, the burden is on the
person raising the claim to satisfy the Court to discharge the initial
burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii),
and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-
section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima
facie satisfaction of the Court. On the basis of the aforesaid
documents a presumption of juvenility may be raised.
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.
33.5. That the procedure of an inquiry by a Court is not the same thing
as declaring the age of the person as a juvenile sought before the JJ
Board when the case is pending for trial before the concerned criminal
court. In case of an inquiry, the Court records a prima facie conclusion
but when there is a determination of age as per sub-section (2) of
section 94 of 2015 Act, a declaration is made on the basis of evidence.
Also the age recorded by the JJ Board shall be deemed to be the true
age of the person brought before it. Thus, the standard of proof in an
inquiry is different from that required in a proceeding where the
determination and declaration of the age of a person has to be made
on the basis of evidence scrutinised and accepted only if worthy of
such acceptance.
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33.6. That it is neither feasible nor desirable to lay down an abstract
formula to determine the age of a person. It has to be on the basis of
the material on record and on appreciation of evidence adduced by the
parties in each case.
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.
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.
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.
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.
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."
13. In case of P. Yuvaprakash Vs. State represented by Inspector
of Police, reported in 2023 (SCC Online) SC 846, Hon'ble
Supreme Court has held in para 14 to 17 as under :
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"14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of
birth certificate from the school or matriculation or equivalent
certificate by the concerned examination board has to be firstly
preferred in the absence of which the birth certificate issued by the
Corporation or Municipal Authority or Panchayat and it is only
thereafter in the absence of these such documents the age is to be
determined through "an ossification test" or "any other latest medical
age determination test" conducted on the orders of the concerned
authority, i.e. Committee or Board or Court. In the present case,
concededly, only a transfer certificate and not the date of birth
certificate or matriculation or equivalent certificate was considered.
Ex. C1, i.e., the school transfer certificate showed the date of birth of
the victim as 11.07.1997. Significantly, the transfer certificate was
produced not by the prosecution but instead by the court summoned
witness, i.e., CW-1. The burden is always upon the prosecution to
establish what it alleges; therefore, the prosecution could not have
been fallen back upon a document which it had never relied upon.
Furthermore, DW-3, the concerned Revenue Official (Deputy
Tahsildar) had stated on oath that the records for the year 1997 in
respect to the births and deaths were missing. Since it did not answer
to the description of any class of documents mentioned in Section
94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have
been relied upon to hold that M was below 18 years at the time of
commission of the offence.
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:
"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
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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."
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:
"Clause (i) of Section 94 (2) places the date of birth certificate
from the school and the matriculation or equivalent certificate
from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned
examination board in the same category (namely (i) above). In
the absence thereof category (ii) provides for obtaining the birth
certificate of the corporation, municipal authority or panchayat.
It is only in the absence of (i) and (ii) that age determination by
means of medical analysis is provided. Section 94(2)(a)(i)
indicates a significant change over the provisions which were
contained in Rule 12(3)(a) of the Rules of 2007 made under the
Act of 2000. Under Rule 12(3)(a)(i) the matriculation or
equivalent certificate was given precedence and it was only in
the event of the certificate not being available that the date of
birth certificate from the school first attended, could be
obtained. In Section 94(2)(i) both the date of birth certificate
from the school as well as the matriculation or equivalent
certificate are placed in the same category.
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."
14. Reverting to the facts of the present case, PW-1 the victim did not
disclose her date of birth, but has stated that she is aged about 16
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years. In cross-examination she stated that she has got admitted
in the school by her elder sister and whatever information was
recorded in the school register was disclosed by her elder sister.
She did not know as to whether her birth certificate was deposited
at the time of her admission in the school or not. She further
admitted that she acquainted her date of birth on the basis of her
school record.
15. PW-2, mother of the victim has also did not disclose her date of
birth, but has stated that her daughter is about 16 years of age. In
cross-examination she stated that she did not know as to who has
taken her to the school for her admission. She further admitted
that they have not got prepared her birth certificate.
16. PW-4 is father of the victim. He too has not disclosed any date of
birth, but has stated that the age of the victim is about 16 years. In
cross-examination he stated that the victim was taken to the
school by his elder daughter and she disclosed her date of birth.
He did no know the date of birth of the victim and has not
prepared her birth certificate.
17. Except the aforesaid evidence with respect to age and date of
birth of the victim, no other evidence is available on record. Even
there is no birth certificate, Kotwari register or ossification test
report of the victim to determine her age. When the author of the
school register has not been examined the basis on which the
entries have been made in the school register is not produced by
the prosecution and there is no other documentary evidence with
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respect to her date of birth, it cannot be said that the prosecution
has proved the age of the victim that she was minor on the date of
incident, rather in absence of any cogent evidence, the victim
cannot be considered to be minor on the date of incident as has
been held by the Hon'ble Supreme Court in the aforesaid
judgments. The parents of the victim who could be the best
witness to disclose her date of birth, also did not disclose her date
of birth. Therefore, the finding recorded by the learned trial Court
that the victim was minor on the date of incident appears to be
perverse and is not sustainable.
18. So far as offence of kidnapping and rape is concerned, we again
examine the evidence available on record.
19. The victim PW-1, has stated in her evidence that on 19-10-2019
she received telephonic call of the appellant and he proposed her
for friendship. On the next day he came to her house and asked
her to go to visit places and after visiting Jagdalpur market he
took her to village Bilori. At village Bilori in the night he made
physical relation with her. On the next morning when she was
about to proceed to her house the appellant further dragged her to
the same house and thereafter they had their meals. The
appellant took her to village Tirathgarh where she met with two
male and two female persons who too have stated the appellant
that he must leave her to her house. At that time the appellant
refused to leave her and in the same night he again made
physical relation with her. On the next morning she asked a
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shopkeeper to drop her to her house and made a complaint that
the appellant did not permit her to go to her house and when they
were proceeded, his motorcycle has got break down and then she
boarded in a bus. He provided her fare charges and in the bus
she borrowed mobile phone from co-passenger and made a
telephonic call to her brother-in-law and asked him to come near
Krishna Petrol Pump and on the same day her brother-in-law left
her to her parents house. Thereafter, she disclosed about the
incident to them and lodged the report. At this stage the victim
was declared hostile and when she was cross-examined by the
prosecution she stated that the appellant made physical relation
with her on the pretext of marriage. In cross-examination she
stated that at the time when she came out from her house it was
about 4:00 p.m. and just a day before elopement with the
appellant she talked with him. She admitted that the appellant
came to her house by motorcycle and then she went along with
him. She admitted that she visited the market and there was
crowed in the market. She did not make any complaint to anyone
in the market that the appellant is kidnapping her. She was sitting
behind the appellant in the motorcycle. Even when she had gone
to village Bilori she did not disclose to anyone that the appellant
has kidnapped her. She further admitted that at the time when the
appellant was making physical relation with her she could not
receive any injuries neither on her body nor on her private part.
She further admitted that when she was at village Munga
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Tirathgarh she had a telephonic call with her friend and her friend
informed her parents, but despite that her parents had not come
there to bring her back.
20. From the evidence of the victim, the allegation of kidnapping and
rape are shaky. When she had gone along with the appellant, they
visited market and thereafter the appellant took her to village Bilori
upltil that time she had not made any complaint to anyone that the
appellant has kidnapped her, it cannot be said that the appellant
has kidnapped her and kept her away from her lawful
guardianship. The offence of kidnapping and eloping with accused
have been considered by the Hon'ble Supreme Court in the case
of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, where
the Hon'ble Supreme Court has considered the taking and
allowing a minor to accompany a person and has held in Para 9
and Para 10 of its judgment that:-
"9. It must, however, be borne in mind that there is a distinction
between "taking" and allowing a minor to accompany a person. The
two expressions are not synonymous though we would like to guard
ourselves from laying down that in no conceivable circumstance can
the two be regarded as meaning the same thing for the purposes of of
the Indian Penal Code. We would limit ourselves to a case like the
present where the minor alleged to have been taken by the accused
person left her father's protection knowing and having capacity to
know the full import of what she was doing voluntarily joins the
accused person. In such a case we do not think that the accused can
be said to have taken her away from the keeping of her lawful
guardian. Something more has to be shown in a case of this kind and
that is some kind of inducement held out by the accused person or an
active participation by him in the formation of the intention of the minor
to leave the house of the guardian.
10. It would, however, be sufficient if the prosecution establishes that
though immediately prior to the minor leaving the father's protection
no active part was played by the accused, he had at some earlier
stage solicited or persuaded the minor to do so. In our, opinion if
evidence to establish one of those things is lacking it would not be
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legitimate to infer that the accused is guilty of taking the minor out of
the keeping of the lawful guardian merely because after she has
actually left her guardian's house or a house where her guardian had
kept her, joined the accused and the accused helped her in her design
not to return to her guardian's house by taking her along with him from
place to place. No doubt, the part played by the accused could be
regarded as facilitating the fulfillment of the intention of the girl. That
part, in our opinion, falls short of an inducement to the minor to slip
out of the keeping of her lawful guardian and is, therefore, not
tantamount to "taking".
21. When the appellant made physical relation with the victim, she
had not received any external injuries on her body, even there is
no evidence that she tried to give teeth bite or nail scratch mark
on the body of the appellant. While medically examining by doctor
there was no injury found on the body of the victim and no definite
opinion was given by the doctor regarding forceful sexual
intercourse with the victim. Even there is no evidence by the
victim that after alleged offence of forceful physical relation by the
appellant at village Bilori she informed about the incident to any
other person to whom she met after that time.
22. From perusal of the entire evidence of the victim she cannot be
placed as sterling witness as there are various circumstances
which make her allegation doubtful about kidnapping and forceful
sexual intercourse, rather she appears to be a consenting party in
eloping with the appellant and making physical relation with him.
23. PW-2 is mother of the victim and PW-4 is father of the victim. PW-
2 has stated in her her evidence that when she came back from
her work she could not find the victim in the house and they
started searching her. After about two days she received a
telephonic call through the friend of the victim and then she had
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conversation with her. At that time the accused scolded the victim
as to why she is talking with her parents and she too have
scolded the appellant. Thereafter, her brother-in-law took her
back. This witness too has been declared hostile and cross-
examined by the prosecution and she disclosed that the victim
informed about the incident. In cross-examination she admitted
that on the instance of village Sarpanch they have lodged the
report. She further admitted that when she had telephonic call
with the victim she came to know that she was at village Munga
Tirathgarh along with the appellant, but they had not gone to
village Tirathgarh to bring her back and also has not lodged any
report to police.
24. PW-4 is also a witness to the same fact which PW-2 has stated.
He too has disclosed on the basis of the information given by the
victim.
25. PW-6 is the friend of the victim. She stated in her evidence that
she and the victim were working together at Jagdalpur. At the time
of incident the victim made a telephonic call to her and asked to
communicate her mother and then she went to her parents house
and then her mother had a conversation with her. In cross-
examination she stated that she did not know what were the
conversation between the victim and her mother.
It is notable here that when the victim has suffered the
incident when she made telephonic call to her friend she did not
disclose about the incident to her.
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After declaring her hostile, though she disclosed about the
incident, but in the cross-examination by the prosecution she
resiled from her earlier cross-examination by the prosecution and
shown her ignorance about the incident, which makes her
evidence doubtful and shaky.
26. PW-7 is the witness who stated that it is the victim who called the
appellant at Tirathgarh. They had dinner in the house of the
appellant at village Tirathgarh and went for sleep. In the next
morning the victim asked them to go back to her house, but the
appellant took her to his own house.
27. PW-10 is ex-sarpanch of the village who stated in her evidence
that at the time of the incident she was informed by the parents of
the victim that the appellant kidnapped their minor daughter and
committed rape upon her. She asked to bring the victim before her
and then the victim came to her and informed about the incident.
She accompanied the parents of the victim for lodging of the
report. At this stage, she too has been declared hostile and
denied her police statement Ex.-P/25.
28. PW-18 is counselor at Child Welfare Committee, Jagdalpur who
conducted the counseling of the victim. She stated in her
evidence that during counseling the victim disclosed about the
incident which she suffered. However, in cross-examination she
admitted that at the time of counseling her parents were also
there. The victim has not disclosed that two persons came in car,
asked water from her and then she was kidnapped by them. She
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also did not disclose about her friend. The victim disclosed that
she visited various places at Jagdalpur throughout the day along
with the appellant.
29. PW-29 Doctor Manisha Goyal medically examined the victim and
found no any external and internal injury on the body of the victim
and she opined that no definite opinion can be given regarding
recent sexual intercourse.
30. From all these evidence it is quite vivid that there is no sufficient,
cogent and clinching evidence against the appellant that he
kidnapped the victim on the alleged date and time and committed
rape upon her, rather it appears that the victim was a consenting
party, she herself eloped with him and engaged in making
consensual physical relation.
31. So far as offence under Section 3(2)(v) of the SC/ST Act is
concerned, if the accused is not convicted and is not found guilty
for the offence under the IPC, he cannot be convicted under
Section 3(2)(v) of the SC/ST Act. Section 3(2)(v) of the SC/ST Act
provides definition as under:-
"3. Punishment for offences of atrocities. - (1)
Whoever, not being a member of a Scheduled Caste
or a Scheduled Tribe.
xxx xxx xxx
(2) Whoever, not being a member of a Scheduled
Caste or a Scheduled Tribes.
xxx xxx xxx
(v) commits any offence under the Indian Penal Code
21
(45 of 1860) punishable with imprisonment for a term
of ten years or more against a person or property
[knowing that such person is a member of a
Scheduled Caste or a Scheduled Tribe or such
property belongs to such member], shall be
punishable with imprisonment for life and with fine;"
32. With regard to Section 3(2)(v) and 3(2)(v)(a) SC/ST Act, in the
matter of Shaju Thomas v. Sub Inspector of Police reported in
2019 SCC OnLine Ker 23039 the High Court of Kerala held that :
".... Accordingly it is only to be held that since the sexual
incidents have happened only on the basis of voluntary and
consensual sexual relationship between the petitioner and
the 2 respondent, none of the vital ingredients of the offence
of rape as per Section 375 of IPC are made out in this case.
Since that is the position, the offence as per Section 3(2) (v)
of SC/ST (POA) Act, which is not an independent
substantive offence will also crumble to the ground. The
offence as per Section 3(2)(v) of the SC/ST (POA) Act is
relating to commission of an offence as per the IPC, which is
included in the schedule to the SC/ST (POA) Act, 1989.
Section 3(2)(v) of the SC/ST (POA) Act, 1989 stipulates that
whoever not being a member of SC/ST, commits any offence
under the IPC punishable with imprisonment for a term of ten
years or more against a person or property knowing that
such person is a member of SC/ST or such property belongs
to such member shall be punishable with imprisonment for
life and with fine etc. So in the instant case, the gravamen of
the allegation in relation to the offence as per Section 3(2)(v)
of the said Act is that as the petitioner has committed the
offence of rape as per Section 375 of IPC and that he has
also incidentally committed the offence as per Section 3(2)
(v) of the above said Act, as R-2 (alleged victim) belongs to
SC community. Since the prosecution for the offence of rape
has no legs to stand, it goes without saying that equally the
offence as per Section 3(2)(v) of the said Act would also fall
to the ground....."
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33. In the matter of Narain Trivedi and others v. State of UP
reported in 2009 SCC OnLine All 30, the Allahabad High Court in
para-9 held as under:-
"9. As would appear from the language used by
the Legislature in section 3(2)(v) SC/ST Act, it is
clear that this section does not constitute any
substantive offence and if any person not being
a member of a Scheduled Caste or a
Scheduled Tribe commits any offence under the
Penal Code, 1860 punishable with
imprisonment for a term of ten years or more
against a person or property on the ground that
such person is a member of Scheduled Caste
or Scheduled Tribe or such property belongs to
such member, then enhanced punishment of
life imprisonment would be awarded in such
case, meaning thereby that conviction and
sentence under section 3(2)(v) SC/ST, Act
simplicitor is not permissible and in cases
where an offence under the Penal Code, 1860
punishable with imprisonment for a term of ten
years or more is committed against a person or
property on the ground that such person is a
member of a Scheduled Caste or a Scheduled
Tribe or such property belongs to such member,
then in such case the accused will be convicted
and sentenced for the offence under Penal
Code, 1860 read with Section 3(2)(v) SC/ST
Act with imprisonment for life and also with fine.
Therefore, in the present case, the appellants
could not be convicted and sentenced under
section 3(2)(v) SC/ST Act simplicitor."
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34. In light of the aforesaid judgments, since no offence under Section
376 of the IPC is made out against the appellant, offence under
Section 3(2)(v) of the SC/ST Act is also not made out against the
appellant.
35. The version of the victim commands great respect and
acceptability, but if there are some circumstances which cast
some doubt in the mind of the court on the veracity of the victim's
evidence, then it will not be safe to rely on the said version of the
victim. There may be some contradictions and omissions in the
statement of the victim and her parents. The law is well settled
that in the case of rape, conviction can be maintained even on the
basis of the sole testimony of the victim. However, there is an
important caveat which is that the testimony of the victim must
inspire confidence. Even though the testimony of the victim is not
required to be corroborated, if her statement is not believable,
then the accused cannot be convicted. The prosecution has to
bring home the charges levelled against the appellant beyond any
reasonable doubt, in which the prosecution has succeeded in
doing in the instant case.
36. For the forgoing reasons, we are of the considered opinion that
there is no sufficient material to uphold the conviction and
sentence of the appellant for the alleged offences.
37. Consequently, the appeal is allowed. The impugned judgment of
conviction and order of sentence is hereby set aside. The
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appellant is acquitted from all the charges. He is reported to be
on bail. His bail bonds shall continue to a further period of six
months as provided under Section 481 of BNSS, 2023.
38. The trial court record be sent back to the concerned the trial court.
.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Aadil
