Chattisgarh High Court
Ajay vs State Of Chhattisgarh on 24 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:18873-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 617 of 2022
Ajay S/o Shivprasad Aged About 25 Years R/o Mahganwa, Namad Giri,
Surajpur District Surajpur Chhattisgarh.
... Appellant(s)
versus
State of Chhattisgarh Through Station House Officer, P.S. Chirmiri,
District Koriya Chhattisgarh.
...Respondent(s)
(Cause-title taken from Case Information System)
For Appellant : Mr. Akhtar Hussain, Advocate.
For Respondent/State : Mr. Ntiansh Jaiswal, Deputy Government
Advocate.
Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
24.04.2026
1. Heard Mr. Akhtar Hussain, learned counsel for the appellant. Also
heard Mr. Nitansh Jaiswal, learned Deputy Government Advocate,
Digitally
signed by
BRIJMOHAN
BRIJMOHAN MORLE
MORLE Date:
2026.04.27
18:49:58
+0530appearing for the State/respondent.
2
2. The present criminal appeal, preferred under Section 374(2) of the
Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’), is directed
against the impugned judgment of conviction and order of sentence
dated 01.04.2022 passed by the learned Additional Sessions Judge
F.T.S.C (POCSO), Manendragarh, District Koriya (C.G.) (for short,
‘learned trial Court’) in Special Criminal Case No. 27 of 2019, whereby
the appellant has been convicted and sentenced as follows:
Conviction Sentence
Section 363 of the the Indian Rigorous imprisonment (for short,
Penal Code (for short, ‘IPC‘) ‘R.I.’) for 02 years and fine of
Rs.500/-, in default of payment of
fine, 01 month R.I. more.
Section 366 of the IPC R.I. for 05 years and fine of Rs. 500/-,
in default of payment of fine, 01
month R.I. more.
Section 376(2)(N) of the IPC R.I. for 20 years and fine of Rs.500/-,
in default of payment of fine, 01 year
R.I. more.
All the sentences shall run concurrently.
3. The prosecution case, in brief, is that on the date of the incident,
at around 11:00 p.m., the victim (PW-2) went to the courtyard of her
house to use the bathroom. The appellant, Ajay, was present nearby.
Upon being called by him, the victim went to him, after which he took
her to his maternal uncle’s house at Bagnachha Dafai, Haldibadi. He
kept her there overnight and, on the pretext of marriage, committed
rape upon her. On the following evening, the appellant took the victim
3
by bus to his house in Surajpur, where he again committed rape upon
her during the night.
4. On the basis of a complaint lodged by the victim’s mother (PW-3),
FIR bearing Crime No. 279/2019 (Ex.P/5) was registered at Police
Outpost Chirmiri under Section 363 of the IPC.
5. During investigation, statements of witnesses under Section 161
Cr.P.C. were recorded. Upon completion, a charge-sheet was filed
against the appellant and other accused persons under Sections 363,
366, 376(2)(N), 368, and 34 IPC, along with Section 6 of the POCSO
Act and Sections 19/21 thereof.
6. The learned trial Court framed charges against the appellant
under Sections 363, 366, and 376(2)(N) IPC and Section 6 of the
POCSO Act. Co-accused Sanjay, Shivkumar, and Suhano were
charged under Section 368 read with Section 34 IPC and Section 21 of
the POCSO Act. All accused denied the charges. The prosecution failed
to prove charges against the co-accused beyond reasonable doubt, and
they were acquitted.
7. The prosecution examined 23 witnesses and exhibited 34
documents. The appellant did not lead any defence evidence.
8. In his statement under Section 313 Cr.P.C., the appellant denied
all incriminating circumstances and claimed false implication.
9. Upon appreciation of the evidence, the learned trial Court
convicted the appellant and sentenced him as detailed in paragraph 02
4
of the judgment. Aggrieved, by the same the present appeal has been
filed by the appellant.
10. Learned counsel for the appellant submits that the impugned
judgment of conviction and order of sentence are contrary to law and
evidence on record. It is contended that the learned trial Court has
failed to properly appreciate the material contradictions and omissions
in the prosecution evidence, which go to the root of the case.
11. It is further submitted by the learned counsel, appearing for the
appellant that the prosecution has failed to conclusively establish that
the victim was a minor at the time of the alleged incident. The reliance
placed on the Admission-Discharge Register (Ex.P/16C) is misplaced,
as the Headmaster (PW-12), in his cross-examination, admitted that
there was no supporting document available regarding the date of birth
of the victim at the time of her admission, nor was the source of such
entry disclosed. In absence of cogent documentary evidence or medical
determination of age, the applicability of the provisions of the POCSO
Act becomes doubtful.
12. Learned counsel for the appellant further contends that the
evidence on record indicates that the victim had accompanied the
appellant voluntarily and there existed a relationship between them. It is
urged that the conduct of the victim, including not raising any alarm or
complaint during the period she remained with the appellant, creates a
serious doubt regarding the allegation of force or absence of consent.
The learned trial Court failed to consider this aspect in its proper
5
perspective. He also submitted that the medical and forensic evidence
does not support the prosecution case. As per the MLC report
(Ex.P/12), no external or internal injuries were found on the person of
the victim. In absence of medical corroboration and in light of
inconsistencies in the testimony of the prosecution witnesses, the
conviction under Section 376(2)(N) IPC is unsustainable. The appellant
is, therefore, entitled to benefit of doubt.
13. Learned counsel for the State supported the impugned judgment,
submitting that the trial Court has rightly appreciated the evidence. It is
contended that the testimony of the victim is reliable and sufficient to
sustain conviction even without corroboration. No perversity or illegality
is shown in the impugned judgment.
14. We have heard learned counsel for the parties and perused the
record.
15. The primary question for consideration is whether the victim was a
minor on the date of the incident.
16. In this regard, the prosecution relied on the Admission-Discharge
Register (Ex.P/16C), which records her date of birth as 01.08.2005.
17. The Headmaster (PW-12) stated that the entry was made in the
register at the time of admission; however, he admitted that he could not
specify the basis or document for recording the date of birth, reducing
its evidentiary value.
18. On cumulative assessment, the prosecution has failed to produce
6
reliable and admissible evidence to conclusively establish that the victim
was below 18 years of age. Mere reliance on the school register,
without proof of its basis, is insufficient.
19. The oral evidence regarding age is inconsistent and unreliable.
Accordingly, the benefit of doubt must go to the appellant.
20. 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.”
21. The Hon’ble Supreme Court in paragraphs 40, 42, 43, 44 and 48
of its judgment in Alamelu and Another Vs. State, represented by
Inspector of Police, reported in (2011) 2 SCC 385, 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
7certificate, 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. The date of birth mentioned in the
transfer certificate would have no evidentiary value
unless the person, who made the entry or who gave
the date of birth is examined.
42. Considering the manner in which the facts
recorded in a document may be proved, this Court in
the case of Birad Mal Singhvi Vs. Anand Purohit1,
observed as follows:-
“The date of birth mentioned in the scholars’
register has no evidentiary value unless the
person who made the entry or who gave the
date of birth is examined….Merely because
the documents Exs. 8, 9, 10, 11, and 12
were proved, it does not mean that the
contents of documents were also proved.
Mere proof of the documents Exs. 8, 9, 10,
11 and 12 would not tantamount to proof of
all the contents or the correctness of date of
birth stated in the documents. Since the
truth of the fact, namely, the date of birth of
Hukmi Chand and Suraj Prakash Joshi was
in issue, mere proof of the documents as
produced by the aforesaid two witnesses
does not furnish evidence of the truth of the
facts or contents of the documents. The
truth or otherwise of the facts in issue,
namely, the date of birth of the two
candidates as mentioned in the documents
could be proved by admissible evidence i.e.
by the evidence of those persons who could
vouchsafe for the truth of the facts in issue.
No evidence of any such kind was produced
8by the respondent to prove the truth of the
facts, namely, the date of birth of Hukmi
Chand and of Suraj Prakash Joshi. In the
circumstances the dates of birth as
mentioned in the aforesaid documents 1988
(Supp) SCC 604 have no probative value
and the dates of birth as mentioned therein
could not be accepted.”
43. The same proposition of law is reiterated by this
Court in the case of Narbada Devi Gupta Vs.
Birendra Kumar Jaiswal2, where this Court observed
as follows:-
“The legal position is not in dispute that
mere production and marking of a
document as exhibit by the court cannot be
held to be a due proof of its contents. Its
execution has to be proved by admissible
evidence, that is, by the “evidence of those
persons who can vouchsafe for the truth of
the facts in issue.”
44. In our opinion, the aforesaid burden of proof has
not been discharged by the prosecution. The father
says nothing about the transfer certificate in his
evidence. The Headmaster has not been examined
at all. Therefore, the entry in the transfer certificate
can not be relied upon to definitely fix the age of the
girl.
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
9marriage; 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.”
22. 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. 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.
10
XXXX
XXXX
XXXX
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 scrutinized and accepted
only if worthy of such acceptance.
33.6. That it is neither feasible nor
desirable to lay down an abstract formula
11
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
12
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.”
23. Recently, in case of P. Yuvaprakash Vs. State represented by
Inspector of Police, 2023 (SCC Online) SC 846, Hon’ble Supreme
Court has held in paras 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
thedescription 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
13
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:
14
“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 fromthe 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.”
24. Upon appreciation of the evidence on record, it emerges that the
victim (PW-2) has stated that she was below 18 years of age at the
relevant time. PW-1 and PW-3, the father and mother of the victim, also
deposed that her date of birth is 01.08.2005. PW-12, the Headmaster of
the victim’s school, relied upon the Admission-Discharge Register
15
(Ex.P/16C), wherein the same date of birth is recorded. However, in his
cross-examination, PW-12 candidly admitted that he could not state the
basis or the document on which the said date of birth had been
recorded.
25. In view of the aforesaid evidence, this Court is of the considered
opinion that the prosecution has failed to produce reliable, cogent, and
legally admissible evidence to conclusively establish the age of the
victim. The age of the victim has, therefore, not been proved in
accordance with law, giving rise to a serious doubt on this crucial
aspect.
26. Apart from the aforesaid material, no primary or foundational
document, such as a birth certificate or any contemporaneous public
record (for instance, entries in a Kotwari Register), has been produced
by the prosecution to establish that the victim was below 18 years of
age on the date of the incident. The oral testimonies of PW-2 (victim),
PW-1 (father), and PW-3 (mother), coupled with the school record
(Ex.P/16C), do not inspire confidence in the absence of proof regarding
the source or basis of the recorded date of birth.
27. In the absence of foundational evidence, it cannot be ruled out
that the date of birth recorded in the school register was based on
approximation or assumption. The prosecution has also failed to
produce the underlying documents on the basis of which such entry was
made. Consequently, the evidence relating to the age of the victim falls
short of the standard required to conclusively establish her minority. The
16
finding of the learned trial Court holding the victim to be a minor,
therefore, cannot be sustained.
28. The next question that arises for consideration is whether the
appellant committed rape upon the victim, particularly in light of the
evidence on record and the defence of consent raised on behalf of the
appellant.
29. The victim (PW-2) deposed that she knew the appellant, Ajay, who
used to pass by her house. On the night of the incident, when she had
gone to the courtyard to use the bathroom, the appellant came in front
of her and caught hold of her. Thereafter, he took her on foot to
Bagnachha Dafai, Haldibadi, to his maternal uncle’s house, where she
was kept overnight and subjected to sexual intercourse. She further
stated that on the next day, the appellant took her by bus to Surajpur,
where she was kept at his father’s house and again subjected to sexual
intercourse. On the following day, she was taken to Madanpur, where
her parents arrived and she returned home with them, and thereafter a
report was lodged at Police Station Chirmiri.
30. She stated that she narrated the incident to the police, whereupon
her medical examination was conducted after obtaining her consent
(Ex.P/2). She also stated that the police prepared the site map and
obtained her signatures thereon, though she clarified that it was not
prepared in her presence. She further stated that her statement was
recorded before the learned trial Court and that she was not aware
whether the house at Madanpur belonged to the maternal uncle of the
17
accused. In her cross-examination, the victim denied the suggestions
that she was 18 years of age, that she had accompanied the appellant
voluntarily, or that no wrongful act was committed with her. She also
denied that the accused had informed her family members that she had
gone with him of her own free will.
31. At the same time, she admitted that her police statement was not
read over to her and that she had become frightened when her father
woke up. She further admitted that she did not inform any person at
Bagnachha, Haldibadi, Madanpur, or Surajpur about the alleged acts,
nor did she raise any alarm or seek assistance, and that the disclosure
was made subsequently. She also admitted that her mother was upset
with her and the appellant, but denied that she was falsely implicating
him.
32. The father (PW-1) and mother (PW-3) of the victim corroborated
the statements made by the victim, affirming the accuracy and
consistency of her account.
33. The medical examination of the victim was conducted on
08.08.2019 by Dr. Kalawati Patel (PW-11). In her deposition, with
reference to the medical report (Ex.P/12), she stated that the victim was
brought for examination by Woman Constable No. 25 Rukmani Banjare
from Police Station Chirmiri.
34. On examination, the victim’s breasts were not fully developed. No
external injuries were observed on her body or private parts. The hymen
was found to be recently torn, accompanied by slight bleeding and
18
tenderness on touch. A vaginal slide was prepared and sent for
chemical examination. The victim’s undergarment (panty), which was
coffee-coloured and stained with blood, was seized, marked, and
forwarded for chemical examination. She was also referred to Medical
College, Ambikapur for determination of her age. The witness opined
that recent sexual intercourse had taken place and that the victim was
not habitual to sexual intercourse.
35. Dr. Sharda Prasad Sahu (PW-22), who examined the appellant,
stated in his deposition, with reference to the medical report (Ex.P/26),
that the appellant was brought for examination by Constable Harish
Sharma from Police Station Chirmiri.
36. On examination, the appellant was found to be physically and
mentally sound, with no external injuries on his body. The axillary and
pubic hair were fully developed, and the genital organs were normal and
fully developed, with testes present in the scrotum. Necessary tests,
including HIV, VDRL, HBsAg, and HCV, were advised.
37. Two semen slides were prepared, sealed, and forwarded for
chemical examination. A black undergarment with a pink stripe and
three white stains on the front side was also seized, marked, sealed,
and sent for chemical examination. The witness opined that the
appellant was capable of performing sexual intercourse.
38. As per the report of the State Forensic Science Laboratory
(Ex.P/34), which was produced during the course of evidence, semen
stains and human spermatozoa were detected on the vaginal slide of
19
the victim as well as on her undergarment.
39. It is a settled principle of criminal jurisprudence that the
prosecution must prove its case beyond reasonable doubt by leading
cogent, reliable, and unimpeachable evidence. Suspicion, however
strong, cannot take the place of proof. It is equally well settled that a
conviction in cases of sexual assault can be based solely on the
testimony of the victim, provided that such testimony is found to be
wholly reliable and inspires confidence.
40. Further, in Alamelu (supra), where the facts and circumstances
were similar to that of the present case, the Hon’ble Supreme Court
observed as under:
“51. This Court in Rameshwar v. State of Rajasthan
{AIR 1952 SC 54} declared that corroboration is not
the sine qua non for a conviction in a rape case. In
the aforesaid case, Vivian Bose, J. speaking for the
Court observed as follows:-
“The rule, which according to the cases
has hardened into one of law, is not that
corroboration is essential before there
can be a conviction but that the necessity
of corroboration, as a matter of prudence,
except where the circumstances make it
safe to dispense with it, must be present
to the mind of the judge, … The only rule
of law is that this rule of prudence must
be present to the mind of the judge or the
jury as the case may be and be
understood and appreciated by him or
them. There is no rule of practice that
there must, in every case, be
corroboration before a conviction can be
allowed to stand.”
20
52. The aforesaid proposition of law has been
reiterated by this Court in numerous judgments
subsequently. These observations leave no manner
of doubt that a conviction can be recorded on the
sole, uncorroborated testimony of a victim provided
it does not suffer from any basic infirmities or
improbabilities which render it unworthy of
credence.
xxx xxx xxx
54. Even PW5, Thiru Thirunavukarasu stated that
Sekar (A1) had brought the girl with him to his
house and told him that he had married her. They
had come to see Trichy and requested a house to
stay. This witness categorically stated that he
thought that they were newly married couple. He
had made them stay in Door No. 86 of the Police
Colony, which was under his responsibility. On 10th
August, 1993, the police inspector, who arrived
there at 10.00 p.m. told this witness that Sekar (A1)
had married the girl by threatening her and “spoiled
her”. The girl, according to the prosecution, was
recovered from the aforesaid premises. Therefore,
for six days, this girl was staying with Sekar (A1).
She did not raise any protest. She did not even
complain to this witness or any other residents in
the locality. Her behavior of not complaining to
anybody at any of the stages after being allegedly
abducted would be wholly unnatural.
55. Earlier also, she had many opportunities to
complain or to run away, but she made no such
effort. It is noteworthy that she made no protest on
seeing some known persons near the car, after her
alleged abduction. She did not make any complaint
at the residence of Selvi, sister of Sekar (A1) at
Pudupatti. Again, there was no complaint on seeing
her relatives allegedly assembled at the temple.
Her relatives apparently took no steps at the time
when mangalsutra was forcibly tied around her
neck by Sekar (A1). No one sent for police help
even though a car was available. She made no
complaint when she was taken to the house of
PW5, Thiru Thirunavukarasu and stayed at his
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place. Again, there was no protest when Sekar (A1)
took her to the police station on 5th day of the
alleged abduction and told at the Tiruchi Police
Station that they had already been married. The
above behaviour would not be natural for a girl who
had been compelled to marry and subjected to illicit
sexual intercourse.
56. In view of the aforesaid, we are of the
considered opinion that the prosecution has failed
to prove beyond reasonable doubt any of the
offences with which the appellants had been
charged. It appears that the entire prosecution
story has been concocted for reasons best known
to the prosecution.”
41. In the light of the aforesaid settled principles, the evidence on
record has been carefully evaluated. The testimony of the victim (PW-
2), though central to the prosecution case, is required to be assessed in
its entirety. From the record, it emerges that despite travelling through
different places and staying at more than one location, the victim did not
disclose the alleged incident to any person, did not raise any alarm, and
did not seek assistance, even when such opportunities were available.
She has also admitted that the disclosure was made subsequently.
These aspects, when considered along with the attendant
circumstances, introduce an element of doubt which bears upon the
overall reliability of the prosecution version.
42. The medical evidence, as deposed by Dr. Kalawati Patel (PW-11),
indicates that the hymen was found to be recently torn with slight
bleeding and tenderness. However, no external or internal injuries
suggestive of use of force were noticed on the body or private part of
the victim. The medical opinion records that recent sexual intercourse
22
had taken place, but does not conclusively indicate that the same was
forcible in nature. In such circumstances, the medical evidence, while
supporting the occurrence of sexual intercourse, does not, in itself,
establish absence of consent.
43. The forensic evidence also requires careful scrutiny. As per the
report of the State Forensic Science Laboratory (Ex.P/34), semen stains
and human spermatozoa were detected on the vaginal slide and the
undergarment of the victim. While this finding indicates that sexual
intercourse had taken place, it does not, by itself, establish that the
same was non-consensual or attributable to the appellant. In the
absence of any conclusive linkage through serological or DNA
evidence, and when considered in conjunction with the inconsistencies
in the testimony of the victim and her admitted conduct, the forensic
evidence does not conclusively support the prosecution case.
44. In view of the aforesaid, the testimony of the victim, which forms
the foundation of the prosecution case, does not inspire the confidence
necessary for sustaining a conviction. The inconsistencies in her
version, coupled with the absence of conclusive medical evidence,
render it unsafe to rely solely upon her testimony.
45. Consequently, this Court is of the considered opinion that the
prosecution has failed to prove its case beyond reasonable doubt. The
appellant is, therefore, entitled to the benefit of doubt.
46. Accordingly, the appeal is allowed. The impugned judgment of
conviction and order of sentence dated 01.04.2022 are set aside. The
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appellant is acquitted of all the charges levelled against him. He is
reported to be in custody and shall be released forthwith, if not required
in any other case.
47. Keeping in view the provisions of Section 437-A of the CrPC (now
Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the
appellant is directed to forthwith furnish a personal bond in terms of
Form No. 45 prescribed in the Code of Criminal Procedure of 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.
48. The learned trial Court record along with 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
Brijmohan