[Cites 31, Cited by 0]
Chattisgarh High Court
Raju Kumar Anand vs State Of Chhattisgarh on 25 March, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:14203-DB
NAFR
Digitally
signed by
BABLU
BABLU RAJENDRA
RAJENDRA BHANARKAR
HIGH COURT OF CHHATTISGARH AT BILASPUR
BHANARKAR Date:
2026.03.27
10:12:37
+0530
CRA No. 1252 of 2023
Raju Kumar Anand S/o Late Bihari Anand @ Ramsingh Aged About 21
Years R/o - Rohrakhurd, P.S.- City Kotwali Mungeli, District : Mungeli,
Chhattisgarh
--- Appellant
versus
State Of Chhattisgarh Through- P.S. - City Kotwali Mungeli, District :
Mungeli, Chhattisgarh
--- Respondent
Shyam Sundar @ Tillu Anand S/o Late Bihari Anand @ Ramsingh Aged
About 37 Years R/o Village - Roharakhurd, Police Station - City Kotwali,
Mungeli, Civil And Revenue District - Mungeli, Chhattisgarh.
---Appellant
Versus
State Of Chhattisgarh Through - The Station House Officer, Police
Statiion - City Kotwali, Mungeli, Civil And Revenue, District : Mungeli,
Chhattisgarh
--- Respondent
For Appellant-Raju : Mr.Syed Afaque Husain Rizvi, Advocate in
For Appellant- : Mr.Parasmani Shriwas, Advocate in CRA
Tillu Anand
For Respondent : Mr.S.S.Baghel, Government Advocate
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Per Ramesh Sinha, CJ
25/03/2026
1. Since the aforesaid two criminal appeals have been filed against
the impugned judgment dated 25.05.2023 passed by the Special
Judge (F.T.S.C.) POCSO Act, Mungeli, District Mungeli in
M.CR.C. No.40/2021, they were clubbed and heard together and
being disposed of by this common judgment.
2. Appellant-Raju Kumar Anand has filed Criminal Appeal
No.1252/2023 against the impugned judgment dated 25.05.2023
passed by the Special Judge (F.T.S.C.) POCSO Act, Mungeli,
District Mungeli in M.CR.C. No.40/2021, whereby the trial Court
has convicted him for offence under Sections 363, 366A and
376(2)(n) of the Indian Penal Code (hereinafter called as 'IPC')
and Section 6 of the Protection of Children from Sexual Offences
Act, 2012 (hereinafter called as 'POCSO Act') and sentenced to
undergo RI for three years and fine of Rs.500/-, in default of
payment of fine to further undergo SI for one month, RI for five
years and fine of Rs.500/-, in default of payment of fine to further
undergo SI for one month and RI for twenty years and fine of
Rs.1000/-, in default of payment of fine to further undergo SI for
one month.
3. Appellant-Shyam Sundar @ Tillu Anand has filed Criminal Appeal
No.1169/2023 against the impugned judgment dated 25.05.2023
passed by the Special Judge (F.T.S.C.) POCSO Act, Mungeli,
District Mungeli in M.CR.C. No.40/2021, whereby the trial Court
has convicted him for offence under Section 363/109 of the IPC
and sentenced to undergo RI for three years and fine of Rs.500/-,
in default of payment of fine to further undergo SI for one month.
4. The prosecution story, in brief, is that on 22.07.2021 father of the
victim (PW-4) lodged a missing report at Police Station City
Kotwali Mungeli, District Mungeli stating that his daughter was
missing from 9:30 A.M. on 21.07.2021 where she had left home
for buying a notebook at nearby shop. He apprehended that
appellant Raju Kumar Anand with the help of his family members
has abduced the minor victim on verge of marrying her. On the
said report, an FIR was registered under Section 363 of the IPC
vide Ex.P-10 and investigation was started.
5. On investigation, the victim was recovered from the possession of
appellant Raj Kumar Anand on 23.07.2021 vide Ex.P-5. Upon
recovery of the minor victim, her medical examination was
conducted vide Ex.P-9 in which no injury was found and hymen
was ruptured. Her statement under Section 164 CrPC before the
Magistrate was recorded vide Ex.P-7. Spot map was prepared by
the patwari vide Ex.P-8. The statements of the victim as well as
other witnesses were recorded. The present appellant along with
other co-accused persons were arrested and Sections 366,
376/34 of the IPC and Section 4 & 6 of the POCSO Act were
added, seizures were made, arrest memos were prepared. Dakhil
kharij register was seized vide Ex.P-2. Certified copy of the dakhil
kharij registered was Ex.P-3(c) in which the date of the victim has
been mentioned as 02.07.2007. After following necessary
procedures and upon completion of investigation, the charge-
sheet was presented before the learned jurisdictional criminal
Court.
6. On the basis of material available on record, charges were
framed against appellants. The appellants abjured their guilt and
pleaded innocence.
7. In order to establish the charge against the appellants, the
prosecution examined 12 witnesses. The statements of the
appellants under Section 313 of the CrPC were also recorded in
which they denied the material appearing against them and
stated that they are innocent and they have been falsely
implicated in the case. After appreciation of evidence available on
record, the learned trial Court has convicted the
accused/appellants and sentenced them as mentioned in paras 2
and 3 of the judgment. Hence, these appeals.
8. Mr.Syed Afaque Husain Rizvi, learned counsel for appellant-Raju
Kumar Anand in CRA No.1252/2023 submits that the prosecution
has failed to prove the case against the appellant beyond
reasonable doubts. There is no legally admissible evidence with
regard to the age of the victim that on the date of incident she
was minor and less than 18 years of age. In absence of
examination of author of the dakhil-kharij register, the same
cannot be taken into consideration for determination of age of the
victim. Dakhil-kharij register is a weak type of evidence. No any
Kotwari register or ossification report are produced by the
prosecution to determine the actual age of the victim that on the
date of incident she was below 18 years of age. It is further
argued by learned counsel for the appellant that the learned trial
Court has failed to appreciate that the victim (PW-2) lived with the
appellant without any protest for two days and looking to her
conduct, it is clearly evident that she has willing and consenting
party, therefore, the impugned conviction of the appellant being
unsustainable in law, deserves to be quashed. The trial Court has
failed to appreciate the evidence of Dr.Nileema Singh (PW-3),
who has specifically stated that on examination of the victim, she
found no injury and hymen was ruptured. He also submits that if
the entire case of the prosecution is taken as it is, then also the
alleged offences are not made out against the appellant and he is
entitled for acquittal.
9. Mr.Parasmani Shriwas, learned counsel for appellant Shyam
Sundar @ Tillu Anand in CRA No.1169/2023 submits that the
impugned judgment of conviction and sentence passed by the
Learned Trial Court is contrary to the facts and circumstances of
the case and the settled principles of law. Learned Trial Court
failed to properly appreciate the evidence on record and has
erroneously convicted the appellant. Hence, the impugned
judgment is liable to be quashed and set aside. As per the
prosecution story, the entire allegation is primarily against the
main accused, namely Raju. The present appellant has been
falsely implicated solely on the ground that he is the step-brother
of the main accused. No specific role or overt act has been
attributed to the appellant. Learned Trial Court failed to consider
this material aspect and wrongly convicted the appellant. He
further submits that the appellant was neither present at the place
of occurrence nor was the victim ever recovered from his
possession. There is no evidence connecting the appellant with
the alleged offence. The Learned Trial Court overlooked this
crucial fact and thus erred in recording the conviction. He also
submits that the prosecution has failed to produce any reliable or
authentic documentary evidence to establish that the victim was a
minor at the relevant time. Learned Trial Court did not properly
examine this deficiency and wrongly concluded against the
appellant. The victim was a major and had voluntarily gone to
meet the brother of the appellant, namely Raju. The alleged
recovery of the victim has been falsely shown by the prosecution
authorities. Upon objection by the family members, the appellant
has also been falsely implicated. This aspect has not been duly
considered by the Learned Trial Court. As such, the appeal so far
as to the present appellant deserves to be allowed and the
impugned judgment deserves to be set aside.
10. On the other hand, learned counsel for the State opposes the
submissions made by learned counsel for the appellants and
submits that the victim was minor and below 18 years of age at
the time of incident, which is proved by the School dakhil-kharij
register Ex.P-3(c) which contains the date of birth of the victim as
02.07.2007. The dakhil-kharij register is admissible piece of
evidence to determine the age of the victim. Therefore there is no
illegality or infirmity in the findings of the learned trial Court. The
victim was abducted by the appellants and kept away from the
lawful guardianship. The appellants kept her in illegal
confinement for a considerable period and appellant Raju Kumar
Anand forcefully committed sexual intercourse with her. As such,
the impugned judgment needs no interference.
11. We have heard the learned counsel for the parties and perused
the record of the trial Court with utmost circumspection.
12. In order to consider the age of the victim, we have examined the
evidence available on record produced by the prosecution. The
prosecution relied upon the School dakhil-kharij register Ex.
P-3(c) which is sought to be proved by PW-1 Chandrabhan
Tiwari, Principal of the Saraswati Shishu Mandir, Mungeli.
Chandrabhan Tiwari (PW-1) has stated in para 3 of his deposition
that he has brought with him today the original dakhil kharij
register. At Serial No. 198, the details of the victim are recorded
as follows: daughter of Chandrabhushan Singh Rajput, caste
Rajput, resident of Roharakhurd. Her date of birth is recorded as
02.07.2007. The date of her admission to the school is
28.06.2017 in Class VI, where she is presently studying. The
same is marked as Exhibit P-3, and its certified copy is marked as
Exhibit P-3C, bearing his signatures at portions marked 'A' to 'A'.
The acknowledgment of return (supurdnama) of the original
dakhil kharij register is marked as Exhibit P-4, which also bears
his signatures at portions marked 'A' to 'A'. In para 4 of his cross-
examination, she has admitted that today he has brought the
dakhil kharij register of the Higher Secondary School relating to
the date of birth of the victim. The victim took admission in their
school in Class VI. In para 5 of his cross-examination, he has
also admitted that he has not brought any document regarding
the school where the victim studied from Class I to V, nor is any
such detail recorded in the dakhil kharij register. In para 6 of his
cross-examination, he has also admitted that the
parents/guardians of the victim did not provide him with any
document regarding her age. He also admitted that the entries in
the dakhil kharij register were not made by him; voluntarily stated
that the entries were made by the previous Principal.
13. At the time of admission of the victim in the school, the birth
certificate or Kotwari Panji have not been produced by her father
and on the oral information given by father of the victim the entry
was made in the School dakhil kharij register. No other evidence
of birth certificate or Kotwari register or ossification report are
produced by the prosecution to prove the actual age of the victim.
14.After considering the entire facts and circumstances of the case
and evidence available on record, it emerges that the prosecution
could not produce the clinching and legally admissible evidence
with respect to the date of birth or age of the victim so as to hold
that on the date of incident she was minor and below 18 years of
age. Only on the basis of school dakhil-kharij register it would not
be safe to hold that the victim was minor on the date of incident.
The statement of the victim, as also the statement of PW-1
Chandrabhan Tiwari, Principal of the Saraswati Shishu Mandir,
Mungeli are contradictory to each other and does not inspire
confidence upon this Court to hold that the date of birth of the
prosecutrix is 02.07.2007.
15. In the matter of Ravinder Singh Gorkhi Vs. State of UP, (2006)
5 SCC 584, relying upon its earlier judgment in case of Birad Mal
Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon'ble
Supreme Court has held as under :
"26. To render a document admissible under Section 35,
three conditions must be satisfied, firstly, entry that is
relied on must be one in a public or other official book,
register or record; secondly, it must be an entry stating a
fact in issue or relevant fact; and thirdly, it must be made
by a public servant in discharge of his official duty, or
any other person in performance of a duty specially
enjoined by law. An entry relating to date of birth made
in the school register is relevant and admissible under
Section 35 of the Act but the entry regarding the age of
a person in a school register is of not much evidentiary
value to prove the age of the person in the absence of
the material on which the age was recorded."
16. In the matter of Alamelu and Another Vs. State, represented
by Inspector of Police, (2011) 2 SCC 385, the Hon'ble Supreme
Court has held that the transfer certificate which is issued by
government school and is duly signed by the Headmaster would
be admissible in evidence under Section 35 of the Evidence Act
1872. However, the admissibility of such a document would be of
not much evidentiary value to prove the age of the prosecutrix in
the absence of any material on the basis of which the age was
recorded. It was 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 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."
17. In the matter 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.
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."
18. Recently, in the matter of P. Yuvaprakash Vs. State represented
by Inspector of Police, 2023 SCC Online SC 846, the Hon'ble
Supreme Court has held in para 14 to 17 as under :
"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 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."
19. Reverting to the facts of the present case and due consideration
of the prosecution evidence, we find that no any clinching and
legally admissible evidence have been brought by the
prosecution to prove the fact that the victim was minor on the
date of incident, yet the trial Court in the impugned judgment has
held her minor, hence, we set aside the finding given by the trail
Court that on the date of incident the victim was minor.
20. So far as the issue of forceful sexual intercourse by appellant
Raju Kumar Anand upon the victim is concerned, we have
carefully perused the statement of the victim recorded under
Section 164 CrPC (Ex.P-7). In her 164 CrPC statement (Ex.P-7),
the victim has stated that she study in Class 10 at Saraswati
Shishu Mandir. A year ago, she met Raju Satnami while she was
going to school. The incident occurred on 21st July 2021. She
was at home preparing for an online class scheduled for 10:00
A.M. When she received a call from Raju Satnami at 9:00 A.M.,
he called her to Rohra Khurd society. Anil Satnami, a resident of
Dhangaon, arrived on a motorcycle and threatened to kill her,
asking her to get on the motorcycle. She panicked and got on the
motorcycle. Raju Satnami and Anil Satnami took her on the
motorcycle to the bus stand. There, she met Raju's stepbrother,
Tillu. He told Raju Satnami to go and he would follow him on the
bus. Anil Satnami then dropped her off near Banjari Temple in
Raipur. From there, Raju Satnami took her to Telibandha in
Raipur, where he met his stepbrother, Tillu. They took her to a
rented house that Tillu had rented. Raju Satnami's younger sister,
his mother, Rukmani, and his brother, Nancha, were also present.
After that, Tillu left. A short time later, Tillu returned. He broke a
mirror, held it to her neck, and threatened to kill me if I screamed.
Raju Satnami then applied vermilion to her forehead. For two
days, Raju Satnami forcibly raped her. Raju Satnami's
stepbrother, Tillu, also tried to force himself on her and beat her
severely. When she went to the bathroom, Raju Satnami's
younger sister Chhoti would accompany her, and his mother
Rukmani would lock the bathroom door from outside. They did
not give her anything to eat or drink for two days, and Tillu would
threaten her a lot, saying, "Can your father give me Rs.
5,00,000/-" If not, he would kill her or sell her. Tillu tortured her a
lot, shouted slogans, intimidated her and threatened her. Then
her father came with Mungeli police and brought her back to
Mungeli.
21. In para 1 of her evidence, the victim (PW-2) has stated that she
study at Saraswati Shishu Nadir Mungeli. She was in Class 10 at
the time of the incident. She was scheduled to have an online
class at 10:00 A.M. When she received a call from the accused,
Raju, at 9:00 A.M., calling her to Rohrakhurd society. When she
arrived to discuss the exam, Anil Satnami, a resident of
Dhangaon, was there on his motorcycle and Raju, Satnami and
Anil Satnami threatened her and threatened to kill her, so she sat
on the accused's motorcycle. After that, while they were taking
her on the motorcycle, she met Raju's step brother Tillu near the
Mungeli bus stand and he said that they all go ahead, he will
follow them. In para 3 of her deposition, she has stated that
accused Raju and Anil took her on a motorcycle to Banjari Mata
Temple in Raipur, where Anil left her and accused Raju. Accused
Raju then took her in an auto-rickshaw to Telibandha, Raipur,
where he met Tillu, who was living in a rented house. In para 4 of
her deposition, she has stated that accused Raju's mother
Rukhmani, his sister Chhoti and his younger brother Nancha
were in the said rented house, where Tillu left saying that
accused Raju and she have to stay there. After some time Tillu
again came to that rented house, then accused Raju filled
vermilion in her parting saying that he will keep her as his wife
and accused Raju kept raping her forcefully for two days.
Accused Tillu said whether her father can give five lakh rupees or
not and threatened her and beat her. In para 5 of her deposition,
she has stated that accused Raju's mother, Rukmani, and his
sister, Chhoti, would lock the door whenever she went to the
bathroom. Raju's stepbrother, Tillu, also attempted to force
himself on her. They would not allow her to leave the rented
house. In para 20 of her cross-examination, she has admitted
that other people and her relatives have houses around her
house. She has also admitted that she did not tell the people
around that the accused was calling her to the society. She has
also admitted that when accused Raju and Anil threatened her
and took her away on a motorcycle, she did not scream for help.
22.The law is well settled that in case of rape, conviction can be
maintained even on the basis of 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 reasonable doubt, which the prosecution has
failed to do in the instant case.
23. Considering the entire evidence available on record and the
conduct of the victim, we are of the opinion that the victim was
more than 18 years of age at the time of incident, further she was
a consenting party with appellant Raju Kumar Anand. Therefore,
in the above facts and circumstances of the case, offence under
Sections 363 & 366A of the IPC and Section 6 of the POCSO Act
would not be made out against appellant Raju Kumar Anand and
offence under Section 363/109 of the IPC would not be made out
against appellant Shyam Sundar @ Tillu Anand.
24. For the foregoing reasons, Criminal Appeal No.1252/2023 filed on
behalf of appellant Raju Kumar Anand and Criminal Appeal
No.1169/2023 filed on behalf of appellant Shyam Sundar @
Tillu Anand are allowed and the impugned judgment and
conviction and order of sentence dated 25.05.2023 is set aside.
The appellants stand acquitted from all the charges. Appellant
Raju Kumar Anand is in jail. He be released forthwith if not
required in any other case. Appellant Shyam Sundar @ Tillu
Anand is on bail. He is not required to surrender. His bail bonds
are cancelled and sureties stands discharged.
25. Keeping in view of the provisions of Section 437-A CrPC (Now
Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023), the
appellants are directed to furnish a personal bonds in terms of
from No.45 prescribed in the Code of Criminal Procedure of sum
of Rs.25000/- with 2 reliable sureties each 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 appellants on receipt of notice thereon
shall appear before the Hon'ble Supreme Court.
26. The Trial Court record alongwith the copy of this judgment be
sent back immediately to the trial Court concerned for compliance
and necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Bablu
