Chattisgarh High Court
Bhima Telam vs State Of Chhattisgarh on 29 July, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
Digitally signed by
MOHAMMED
AADIL KHAN
Date: 2026.08.03
19:57:45 +0530
CGHC010087252023 2026:CGHC:32526-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 700 of 2023
1 - Bhima Telam S/o Late Shri Laxmaiya Telam, Aged About 26 Years,
R/o Murdanda (Kamarguda Para), Police Station- Avapalli, District :
Bijapur, Chhattisgarh
... Appellant
versus
1 - State of Chhattisgarh Through Station House Officer, Police of Police
Station Avapalli, Chhattisgarh
... Respondent
(Cause-title taken from Case Information System)
For Appellant : Mr. Vikas A. Shrivastava, Advocate.
For State : Mr. S.S. Baghel, Govt. Advocate.
Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Ravindra Kumar Agrawal, Judge
Order on Board
Per Ramesh Sinha , Chief Justice
29-07-2026
1. The present criminal appeal has been filed by the appellant under
Section 374(2) of the Cr.P.C. against the impugned judgment of
conviction and sentence dated 06.02.2023 passed by the learned
Additional Sessions Judge (F.T.C.), South Bastar Dantewada,
(C.G.), in Special Session (POCSO) Case No. 04/2019, whereby
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the appellant has been convicted and sentenced in the following
manner with a direction to run all the jail sentences concurrently:-
Conviction Sentence
U/s 363 of the IPC R.I. for 03 years with fine of Rs. 500/-, in
default of payment of fine, further R.I. for
1 year,
U/s 366 of the IPC R.I. for 03 years with fine of Rs. 500/-, in
default of payment of fine, further R.I. for
1 year,
U/s 376(3) of the IPC No separate sentence has been
awarded,
Sec. 6 of Protection of Children R.I. for 20 years with fine of Rs. 1000/-,
from Sexual Offences Act, 2012 in default of payment of fine, further R.I.
(in short ‘POCSO Act‘) for 1 year.
2. The prosecution’s case, in brief, is that, the father of the minor
victim, PW-2 lodged a written complaint Ex.-P/12 to the police that
her minor daughter who was studying at Bijapur Kota Cabin came
to the house in the month of December and he sent her back on
15.01.2019 through passenger bus from Usur. His elder daughter
informed him by phone that the victim had gone to the appellant
towards Jayatalur Mela. On 16.01.2019 when his wife came to his
elder daughter, the victim was not found there and when she had
gone to the house of the appellant his daughter ran towards
jungle, which was informed by his wife. On the next day also
when they had gone towards village Murdhonda the appellant ran
towards jungle after seeing them. On 31.01.2019 the victim came
back along with the appellant and after leaving her there he fled
away and then his daughter informed about the incident that the
appellant allured her that he will provide job and also on the
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pretext of marriage he made physical relation with her. Based on
the written complaint one unnumbered FIR Ex.-P/13 was
registered against the appellant for the offence under Section 363,
366 and 376 of the IPC and Section 4 of Protection of Children
from Sexual Offences Act, 2012 (in short ‘POCSO Act‘) at Police
Station Bijapur. The FIR was transferred to jurisdictional police at
Police Station Awapalli where numbered FIR Ex.-P/8 was
registered. The victim was sent for her medical examination to
District Hospital, Bijapur where she was medically examined by a
team of doctors, i.e., Doctor Shilpa Nayak and Doctor Arun
Choudhari, who gave their report Ex.-P/15. While medically
examining the victim no external injuries have been found on
body of the victim. The doctor opined that from the medical
examination of the victim she neither refuted nor supported that
the forceful intercourse has taken place. Patient is to be reviewed
after her periods. She referred for radiologist for her age
confirmation. Two slides of vaginal swab were prepared, sealed
and handed over to police for its chemical examination. With
respect to age and date of birth of the victim, the police has
seized school register vide seizure memo Ex.-P/17 and after
retaining attested true copy of the school register Ex.-P/18C the
original school register was returned to the school. Spot map Ex.-
P/4 was prepared by patwari. The appellant was arrested on
27.02.2019 and he too was sent for his medical examination to
District Hospital Bijapur where he was medically examined by
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PW-5 Doctor Rajendra Rai who gave his report Ex.-P/6.
According to the MLC report of the appellant, the appellant was
found capable to do sexual intercourse. The statement of the
victim under Section 164 of Cr.P.C. and the statement of other
witnesses under Section 161 of Cr.P.C. have been recorded and
after completion of usual investigation, charge sheet was filed
against the appellant for the offence under Section 363, 366,
376(3) of the IPC and Section 4, 5(l)/6 of POCSO Act before the
learned trial Court.
3. The learned trial court has framed the charge under Sections 363,
366, 366A and 376(3) of the IPC and Section 5(l), 6 of the
POCSO Act. The appellant denied the charge and claimed trial.
4. In order to bring home the charge, the prosecution has examined
as many as 11 witnesses. The statement under section 313 of
CrPC of the appellant was also recorded in which he denied the
material appears against him, pleaded innocence and has
submitted that he has been falsely implicated in the offence. He
has further submitted that the brother of the victim had committed
marpeet with him which he has not reported to police, but her
family members have prepared a false case of rape and got him
implicated in the said offence.
5. After appreciation of the oral as well as documentary evidence led
by the prosecution, the learned trial court has convicted the
appellant and sentenced the appellant as mentioned in the earlier
para of this judgment. Hence this appeal.
5
6. Learned counsel for the appellant would argue that the appellant
is innocent and has been falsely implicated in the offence. No
offence is made out against the appellant as alleged. The
prosecution has failed to prove its case beyond reasonable doubt.
There are material omissions and contradictions in the evidence
of prosecution witnesses. The victim has deposed against the
appellant because of pressure of her parents. He would also
submit that no injuries have been found on the body of the victim
and the FSL report is also negative which further supports the
defence. There is no cogent and clinching evidence with respect
to age of the victim that she was minor on the date of incident.
The school register produced by the prosecution has not been
proved in accordance with law and there is no other evidence
available in the record which proves that the victim was minor on
the date of incident. There is no birth certificate or ossification test
report of the victim produced by the prosecution and in absence of
any cogent and clinching evidence her age cannot be determined
that she was minor on the date of incident. He would further
submit that the victim was having love affair with the appellant and
she herself has made physical relation with him on her own will
without raising any objection. She engaged in making consensual
physical relation with the appellant and has not made any
complaint to anyone and when their relation came into knowledge
of her parents they lodged the report by pressurizing the victim for
the same. She being major girl having engaged in making
6
consensual physical relation no offence of rape is made out
against the appellant and he is entitled for acquittal.
7. On the other hand, learned counsel for the State opposes the
submissions advanced by the learned counsel for the appellant
and has submitted that the the prosecution has proved its case
beyond reasonable doubt. There are sufficient evidence against
the appellant in the case to convict him for the alleged offence.
The victim was found to be minor on the date of incident and the
school record has been proved by PW-10 who is Superintendent
of the school/Ashram where the victim was studying. The minor
victim was subjected to sexual intercourse by the appellant. The
victim being minor was not competent to give her consent and
therefore, making physical relation with a minor girl itself amounts
to offence of rape for which the learned trial Court has rightly
considered the evidence of the victim as well as other evidences
and convicted him for the alleged offence. He would further
submit that even if no injuries have been found on the body of the
victim it does not makes the prosecution case doubtful as injury in
every case is not required to be found on body of the victim and it
depends upon the facts of each case. In the present case there
are overwhelming evidence against the appellant and his appeal
is liable to be dismissed.
8. We have heard the learned counsel for the parties and perused
the record of the trial Court carefully.
7
9. The first and foremost question arose for consideration would be
age of the victim as to whether on the date of incident she was
minor and less than 18 years of age or not.
10. The prosecution has mainly relied upon school register Ex.-P/18C
which is sought to be proved by PW-10, who is Superintendent of
the school/Ashram where the victim was studying. He stated in his
evidence that the police has seized school register vide seizure
memo Ex.-P/17 and after retaining attested true copy Ex.-P/18C
the original register was returned to the school. He brought the
original school register with him which is Ex.-P/18. As per the
entry made in the school register, the date of birth of the victim is
25-03-2005. In cross-examination he admitted that who has
recorded the date of birth of the victim in the school register Ex.-
P/18C he did not know. He admitted that the entries in the school
register have not been made by him. He also admitted that in the
year 2007 when the victim was said to have admitted in the
school he was not posted there. He further admitted that the
parents of the victim have not provided any document to him with
respect to her date of birth. Admittedly, this witness is neither the
author of the school register nor the basis on which the entries
have been made in the school register have been produced by
the prosecution.
11. The admissibility and evidentiary value of the school register is
considered by the Hon’ble Supreme Court in the case of Alamelu
and Another Vs. State, represented by Inspector of Police,
8
reported in 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 victim in the absence of
any material on the basis of which the age was recorded.
12. In paragraphs 40, and 48 of its judgment in Alamelu (Supra), the
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
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. [(2006) 5 SCC 584] 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
9represented 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.”
13. 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.
10
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.
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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.”
14. 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 :
“”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
12certificate, 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. [2022 (8) SCC 602] 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 [2019] 9 SCR 735]
that:
“Clause (i) of Section 94 (2) places the date of birth certificate
from the school and the matriculation or equivalent certificate
from the 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
13Rules 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
[(2012) 9 SCR 224], 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.”
15. Reverting to the facts of the present case, the victim PW-1 has
disclosed in her evidence that her date of birth is 10.12.2005. Her
father PW-2 did not know the date of birth of the victim and has
stated that she is presently about 13 years of age and he had
gone to her school for her admission. In cross-examination he
admitted that he did not know the date of birth of the victim. PW-6,
mother of the victim also did not disclose the date of birth of the
victim in the evidence. PW-4, is elder sister of the victim she too
has not disclosed the date of birth of the victim and stated that the
victim is presently aged about 13 years. Except the oral evidence
that the victim is presently aged about 13 years there is no
sufficient evidence available on record to determine the age of the
victim that she is minor and less than 18 years of age. When the
parents of the victim themselves did not disclose the date of her
birth, there is material difference in the evidence of the victim that
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her date of birth is 10.12.2005, whereas, the school record Ex.-
P/18 which has been relied by the prosecution discloses the date
of birth of the victim as 25.03.2005 cast serious doubt upon the
evidence produced by the prosecution about the age of the victim.
The prosecution could not produce cogent evidence that the
victim was minor on the date of incident and less than 18 years of
age and the school register Ex.-P/18C is not sufficient to prove
the age of the victim and therefore, we are of the considered
opinion that the prosecution has failed to prove that the victim was
minor on the date of incident, yet the learned trial Court has held
her minor.
16. So far as the offence of kidnapping and rape is concerned, we
again examine the evidence of the victim, PW-1. She has stated
in her evidence that after winter vacation of December, 2018
when she was returning to her school by passenger bus from
Usur the appellant was also a passenger in the said bus. He took
her to his house on the pretext that threshing work of paddy is
going on and she too would be engaged in the said work. On the
same day he took her to a Mela at Bijapur, thereafter, he took her
to her sister’s house at Bijapur and again took her back to his own
house at Kamarguda. In his house on the pretext of marriage he
made sexual intercourse with her for about 11 times. She stayed
in the house of the appellant uptil 31 st and thereafter, the appellant
left her to her house at Usur and then she disclosed the incident
15
to her parents. She was medically examined by the doctor and the
appellant was arrested. In cross-examination she admitted that
she knew the appellant from the time when a marriage function
had in the village. She admitted that she has not disclosed to
mother and sister and brother of the appellant that the appellant
kidnapped her. The mother, brother and sister of the appellant
were also residing in the same house where the appellant took
her with him. She also admitted that she too was resided with
them. She further admitted that she has not disclosed about the
sexual intercourse by the appellant with her to her family
members. Even she has not disclosed about the incident to any of
the neighbour who were residing at adjoining houses of the house
of the appellant. She also admitted that she has not made any
complaint to any family member of the appellant. She further
admitted that the appellant has not forcibly took her to Mela. It is
also admitted by her that when the appellant took her to meet her
sister PW-4 she has not disclosed any incident to her. Even she
has not made any telephonic call to her parents in between that
period. She knew that the appellant was already married. Since
she was residing with the appellant for a considerable period, her
sister and parents were annoyed and therefore, they lodged the
report and she deposed on the instance of her parents.
17. From the evidence of the victim PW-1 it transpires that when she
was going to her school by bus, she was accompanied with the
16
appellant upto his house without raising any alarm or without
making any complaint to anyone. Even the family members of the
appellant were residing in the same house where the victim was
kept by the appellant, but she has not made any complaint to any
of the family members and also not to any neighbours. The
conduct of the victim clearly reveals about her consent and
willingly accompanying with the appellant on her own will.
18. 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.
17
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
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”.
19. Recently in the matter of Tilaku alias Tilak Singh Vs. the State
of Uttrakhand, the judgment passed in the matter of S.
Varadarajan (supra) has been relied upon by the Hon’ble
Supreme Court in CRA No.183 of 2014 decided on 06.02.2025.
20. From the evidence of PW-1 it does not disclose that at the time
when the appellant made physical relation with her she protested
or tried to came out from the clutches of the appellant. There is no
sign of any protest found on the body of the victim or the
appellant. It is the evidence of the victim that the appellant made
sexual intercourse with her repeatedly, but in none of time she
raised any objection even she has not made any complaint about
any forceful sexual intercourse by the appellant upon her to his
family members with whom the victim was resided in between that
period. The conduct of the victim clearly shows that she was a
18
consenting party in making physical relation with the appellant
and has engaged in consensual physical relation.
21. PW-2, father of the victim and PW-6 mother of the victim are the
witnesses to whom the victim disclosed about the incident. When
the evidence of the victim was not found credible, the evidence of
these two witnesses do not have much significance in the
allegation of kidnapping and rape against the appellant.
22. PW-4, sister of the victim stated that when the victim could not
reach the hostel she enquired from her parents about her and in
the same evening the appellant made a telephonic call to her and
informed that the victim is with him and after two days he will
leave her at Bijapur and the said information was forwarded by
her to her parents. She too has not disclosed that the victim
informed her about any incident of kidnapping or rape.
23. PW-11, Doctor Shilpa Nayak who examined the victim has proved
the MLC report Ex.-P/15 and deposed that she has not noticed
any external injuries on the body of the victim at the time of her
medical examination. She prepared two slides and referred her for
radiologist for age determination. There is no FSL report produced
by the prosecution to confirm the presence of semen and sperms
in vaginal slides of the victim. In absence of any corroborative or
cogent evidence, the appellant cannot be convicted for the
alleged offence as the evidence produced by the prosecution
does not inspire confidence of the Court that the victim was
19
subjected to kidnapping and rape by the appellant rather from the
evidence it is quite vivid that the victim herself eloped with the
appellant and made consensual physical relation with him which
does not come under the definition of either kidnapping or rape.
The evidence of victim does not qualify the test of sterling witness
as has been observed by the Hon’ble Supreme Court in the case
of in the matter of Santosh Prasad @ Santosh Kumar Vs.
State of Bihar, 2020 (3) SSC 443, in which it was observed as
under:
“5.4.2 In the case of Rai Sandeep alias Deepu [Rai Sandeep alias
Deepu v. State (NCT of Delhi), (2012) 8 SCC 21], this Court had an
occasion to consider who can be said to be a “sterling witness”. In
paragraph 22, it is observed and held as under:
“22 In our considered opinion, the “sterling witness” should be
of a very high quality and calibre whose version should,
therefore, be unassailable. The court considering the version of
such witness should be in a position to accept it for its face
value without any hesitation. To test the quality of such a
witness, the status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement made by
such a witness. What would be more relevant would be the
consistency of the statement right from the starting point till the
end, namely, at the time when the witness makes the initial
statement and ultimately before the court. It should be natural
and consistent with the case of the prosecution qua the
accused. There should not be any prevarication in the version
of such a witness. The witness should be in a position to
withstand the cross-examination of any length and howsoever
20strenuous it may be and under no circumstance should give
room for any doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of it. Such a version
should have co-relation with each and every one of other
supporting material such as the recoveries made, the weapons
used, the manner of offence committed, the scientific evidence
and the expert opinion. The said version should consistently
match with the version of every other witness. It can even be
stated that it should be akin to the test applied in the case of
circumstantial evidence where there should not be any missing
link in the chain of circumstances to hold the accused guilty of
the offence alleged against him. Only if the version of such a
witness qualifies the above test as well as all other such similar
tests to be applied, can it be held that such a witness can be
called as a “sterling witness” whose version can be accepted by
the court without any corroboration and based on which the
guilty can be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said
version in material particulars in order to enable the court trying
the offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty of the charge
alleged.”
24. In Dola @ Dolagobinda Pradhan & Another Vs. State of
Odisha, 2018 (18) SCC 695, in paragraph 9 it was observed by
Hon’ble Supreme Court as under :
21
“9. However, as is also evident from the observations above, such
reliance may be placed only if the testimony of the prosecutrix
appears to be worthy of credence. In this regard, it is also relevant to
note the following observations of this Court in Raju v. State of M.P
[(2008) 15 SCC 133] which read thus: (SCC p. 141. paras 10-11)
“10. The aforesaid judgments lay down the basic principle that
ordinarily the evidence of a 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 the evidence is reliable, no corroboration is necessary.
Undoubtedly, the aforesaid observations must carry the
greatest weight and we respectfully agree with them, but at
the same time they cannot be universally and mechanically
applied to the facts of every case of sexual assault which
comes before the court.
11. It cannot be lost sight of that rape causes the greatest
distress and humiliation to the victim but at the same time a
false allegation of rape can cause equal distress, humiliation
and damage to the accused as well. The accused must also
be protected against the possibility of false implication,
particularly where a large number of accused are involved. It
must, further, be borne in mind that the broad principle is that
an injured witness was present at the time when the incident
happened and that ordinarily such a witness would not tell a
lie as to the actual assailants, but there is no presumption or
any basis for assuming that the statement of such a witness is
always correct or without any embellishment or exaggeration.”
25. Considering the totality of evidence available on record, we are of
22
considered opinion that the prosecution has failed to prove its
case beyond reasonable doubt against the appellant that he
kidnapped the victim and committed rape upon her. Therefore,
conviction and sentence of the appellan cannot be sustained.
Accordingly, the appeal filed by the appellant is allowed. The
impugned judgment of conviction and sentences are hereby set
aside. The appellant is acquitted from all the alleged offences. The
appellant is reported to be in jail since 27.02.2019. He be released
forthwith if not required in any other case.
26. Keeping in view the provisions of Section 481 of the Bharatiya
Nagarik Suraksha Sanhita, 2023, the appellant- Bhima Telam is
directed to furnish a personal bond for a sum of Rs. 25,000/- with
one surety in the like amount before the Court concerned which
shall be effective for a period of six months along with an
undertaking that in the event of filing of Special Leave Petition
against the instant judgment or for grant of leave, the aforesaid
appellant, on receipt of notice thereof, shall appear before the
Hon’ble Supreme Court.
27. The trial Court record along with a copy of this judgment be sent
back to the trial Court concerned for compliance and necessary
action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Aadil
