Chattisgarh High Court
Umesh Sinha vs State Of Chhattisgarh on 28 April, 2026
Author: Rajani Dubey
Bench: Rajani Dubey
1
2026:CGHC:19498
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AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 08.04.2026
Judgment delivered on : 28.04.2026
CRA No. 994 of 2008
1 - Umesh Sinha, S/o Indal Ram Sinha, Aged about 37 years, R/o
Quarter No.1 B/25, Amrapali Society, Tehsil & District- Raipur (C.G.)
... Appellant
versus
1 - State of Chhattisgarh through P.S. Mahila Thana, District- Raipur
(C.G.)
... Respondent(s)
For Appellant : Ms. Anshu Ratre appears on behalf of
Mr. Maneesh Sharma, Advocate
For Respondent(s)/State : Mr. Kanhaiya Ram Yadav, P.L.
2
Hon’ble Smt. Justice Rajani Dubey
CAV Judgment
1. This appeal preferred under Section 374(2) of the Code of
Criminal Procedure, has been preferred by the appellant
challenging the judgment of conviction and order of sentence
dated 30.09.2008 passed by the learned VII Additional Sessions
Judge, Raipur (C.G.) in Sessions Trial No. 32/2007, whereby the
learned trial Court has convicted and sentenced the appellant as
follows:-
Conviction Sentence
Under Section 376 of IPC R.I. for 7 years and to pay fine
of Rs. 5,000/- and in default of
payment of fine to undergo
additional R.I. for 3 months
2. The prosecution case, in brief, is that the complainant, aged
about 17 years and 1½ months, has allegedly been subjected to
continuous physical abuse for the past 1½ years by one Umesh
Sinha, purportedly with the tacit support and protection of her
mother and her maternal relative. It is alleged that whenever the
complainant raised objections or disclosed such acts to her
mother and said relative, instead of providing protection, they
supported the accused person and dismissed her allegations on
the pretext that he was financially supporting the household,
thereby suppressing her grievances. Being aggrieved and
mentally distressed by such conduct, the complainant was
compelled to leave her parental home and has been residing at
3
the house of an acquaintance for the past one month for her
safety and well-being. It is further alleged that her father has also
supported the actions of the aforesaid persons, thereby subjecting
the complainant to continued harassment and making her life
unbearable. On the basis of the complaint lodged by the
complainant, the Women Police Station, Raipur, registered a
criminal case and upon completion of investigation, filed a First
Information Report before the Court of the learned Judicial
Magistrate First Class, Raipur. Subsequently, the case has been
committed/transferred to this Court for trial in accordance with law.
Learned trial Court framed the charge against the appellant under
Section 376 of IPC, to which appellant abjured his guilt and
claimed to be tried.
3. In order to substantiate the charge levelled against the
accused/appellant, the prosecution examined as many as 10
witnesses. Thereafter, the statement of the accused/appellant was
recorded under Section 313 of the Code of Criminal Procedure,
wherein all incriminating circumstances emerging from the
prosecution evidence were put to him for explanation. The
accused/appellant denied all such circumstances in toto, pleaded
innocence and stated that he has been falsely implicated in the
present case. In support of his defence, the accused/appellant
examined Savitri Verma as D.W.-1, Shivkaran Singh as D.W.-2,
Smt. Droupati Tiwari as D.W.-3, Mona Upadhyay as D.W.-4,
Rajjak Khan as D.W.-5, Santosh Dubey as D.W. -6 and Manju
4
Rathore as D.W.-7.
4. The learned trial Court, upon appreciation of the entire oral as well
as documentary evidence available on record, found the
prosecution case to be credible and trustworthy. Accordingly, vide
judgment dated 30.09.2008, the trial Court convicted and
sentenced the accused/appellant as detailed in para 1 of the said
judgment. Hence, this appeal.
5. Learned counsel for the appellant submits that the impugned
judgment is contrary to law, facts and the circumstances of the
case and is therefore unsustainable. It is contended that the
learned Trial Court failed to appreciate that the prosecution case
is inherently improbable, unreliable and unsupported by any
cogent and admissible evidence. The testimony of the prosecutrix
is not corroborated by any independent witness and is riddled with
material contradictions, rendering it unsafe to rely upon for
conviction. The conviction has been recorded on the basis of
conjectures, surmises, and inadmissible evidence. Even the
medical evidence does not support the prosecution case as the
doctor (PW-4) has clearly opined that there were no signs of
forceful intercourse. Further, the prosecution has failed to
conclusively prove the age of the prosecutrix. It is further
submitted that the appellant has been falsely implicated due to
extraneous reasons, which is supported by the defence evidence
on record. The prosecution has failed to establish the charge
5
under Section 376 IPC beyond reasonable doubt. The findings
recorded by the learned Trial Court are perverse, contrary to
settled principles of law and suffer from material illegality, and
thus, the impugned judgment deserves to be set aside.
Reliance has been placed on the judgment of the Hon’ble
Supreme Court in Manak Chand @ Mani vs. State of Haryana,
reported in AIR 2023 SC 5600 as well as on the judgment dated
20.02.2025 passed by this Hon’ble Court in CRA No. 2364 of
2023 and other connected matters in Chiranjeet Dholai vs.
State of Chhattisgarh.
6. On the other hand, learned State counsel submits that the
impugned judgment is well-reasoned, based on proper
appreciation of evidence and in accordance with law. The
testimony of the prosecutrix is cogent, credible and sufficient to
sustain conviction and has been duly supported by the
surrounding circumstances on record. The Trial Court has rightly
appreciated both oral and medical evidence and recorded a
finding of guilt. The prosecution has successfully proved the
charge under Section 376 IPC beyond reasonable doubt and the
conviction warrants no interference by this Court.
7. Heard counsel for the parties and perused the material available
on record.
8. A perusal of the record of the learned Trial Court reveals that
charge was framed against the appellant, Umesh Sinha, under
6
Section 376 of the Indian Penal Code, while the co-accused
persons were charged under Section 109 of the Indian Penal
Code. Upon appreciation of the oral as well as documentary
evidence adduced during trial, the learned Trial Court acquitted
the co-accused persons of the charges levelled against them but
found the appellant guilty of the offence punishable under Section
376 IPC. The conviction of the appellant was primarily based on
the finding that although the prosecutrix was a consenting party,
she was below 16 years of age at the time of the incident,
rendering her consent legally immaterial.
9. As per the prosecution case, the prosecutrix was approximately
15 years of age at the time of the alleged incident. It is further
evident from the First Information Report (Ex.P/15) that the
incident is stated to have occurred about one and a half years
prior to the date of lodging of the FIR, i.e. on 18.08.2006.
10. Kishore Kumar Choudhary (P.W.-5), Assistant Grade-I, deposed
that he had produced the tabulation chart of the Chhattisgarh
Board of Secondary Education, Raipur before the Court. He
further stated that the said tabulation record was seized by the
police in accordance with the seizure memo (Ex.P/4). He also
deposed that as per the tabulation chart, the date of birth of the
prosecutrix was recorded as 22.07.1989.
11. Kunj Bihari Yadav (P.W.-6), Peon of the Municipal Corporation,
Raipur, deposed that he had produced the birth register
7
maintained by the Municipal Corporation before the Court. He
further stated that the said register was seized by the police in
accordance with the seizure memo (Ex.P/7) and the same was
exhibited as Article ‘C’.
In his cross-examination, he admitted that he had not made
the relevant entry in the birth register. He further stated that, as
per the record, the name of the child was mentioned merely as
“Soni” at page 28, Serial No. 425.
12. Sunita Kanwar (P.W.-7), Head Constable, deposed that she had
seized the marksheet of the prosecutrix vide seizure memo
(Ex.P/9).
13. In the case of Chiranjeet Dholai (supra), this Hon’ble Court has
observed and held in paras 21 to 24 as follows:-
21. 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
835 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.”
22. 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
9age 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
10accused, 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.”
23. 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 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
11sub-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
12person. 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,
13could 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.”
24. Recently, in the matter of P. Yuvaprakash Vs. State
represented by Inspector of Police, 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
14concerned 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, ie, 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:
15
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 (ii) 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
16equivalent 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.”
17
14. In light of the foregoing, it is evident that the prosecution relied
upon the tabulation chart of the Chhattisgarh Board of Secondary
Education, the birth register of the Municipal Corporation and the
marksheet of the prosecutrix to establish her age. However, the
witnesses have admitted that the admission register of Class I
was not produced by the prosecution. It has further come on
record that the name of the prosecutrix was not duly entered in
the birth register of the Municipal Corporation. In such
circumstances, it was incumbent upon the prosecution to
establish, beyond reasonable doubt that the name reflected in the
relevant entry was subsequently identified with and pertained to
the prosecutrix. Therefore, it is clear that no clinching and legally
admissible evidence has been brought on record by the
prosecution to prove that the victim was a minor on the date of the
incident. Yet, the learned Trial Court, in the impugned judgment,
has held her to be a minor. Hence, the findings recorded by the
learned Trial Court regarding the age of the prosecutrix are not
sustainable.
15. The defence placed on record various documents and the
prosecutrix also admitted Ex. D/1 and D/2 which indicate that she
was in a love affair with another person namely Rajendra Sahu.
16. The prosecutrix (P.W.-8) deposed in her examination-in-chief
that the accused had committed forcible sexual intercourse with
her.
18
In her cross-examination, particularly in paras 12 and 13,
she admitted the letter (Ex.D/2) and acknowledged that the same
was in her handwriting; however, she stated that the said letter
was written by her in a joking manner. She denied the suggestion
that on 13.07.2006 she had informed her mother about her
intention to leave the house on 14.07.2006 along with Rajendra
Sahu.
She admitted the suggestion that her mother had lodged a
report against her at the concerned police station, pursuant to
which an investigation was carried out. However, she expressed
lack of knowledge as to whether Constable Rajendra Sahu was
examined in connection with the said investigation.
She also admitted that she had resided in Nari Niketan.
However, she denied the suggestion that she had left Nari Niketan
and gone to the house of Suresh Tiwari. She further denied the
suggestion that she, in connivance with Constable Rekhlal
Meshram and Rajendra Sahu, had prepared a forged marksheet
showing that she had passed Class 10th.
17. In her examination-in-chief, she, on several occasions, stated
that the contents attributed to her in her police statement (Ex.D/3)
were not recorded as per what she had actually stated.
In para 44, she stated that, ” यह सही है कि मेरी माँ ने इस रिपोर्ट के
पहले मेरे विरुद्ध शिकायत की था । यह भी सही है कि उस शिकायत पर मुझे महिला
थाने में बुलाया गया था। यह सही है कि वहाँ पर मैंने कहा कि मैं अपने मां-बाप के साथ
19
नहीं रहना चाहती अलग रहना चाहती हूँ। सही है कि तब मुझे महिला थाना वालों ने
कहा कि मैं उन्हें लिखकर दूँ कि मैं अपने घरवालों से वास्ता तोडती हूं और अपने
घरवालों के साथा नहीं रहना चाहती यह सही है कि तब मैंने ऐसा लिखकर दिया था।
सही है कि महिलाथाने में लिखकर देने के बाद मैं मनोज साहू के मकान में जाकर रहने
लगी ।”
In para 48 of her testimony, she stated that her parents had
not refused to keep her with them; rather, it was she who declined
to reside with them.
Further, she denied the suggestion that she was having a love
affair with Rajendra Sahu. Upon being confronted with the note “I
Love You” written in the register (Ex.D/1), she stated that the said
writing had been made under force. She also denied the
suggestion that Constable Rajendra Sahu and Constable Rakhlal
had used her as a pawn and concocted the entire story with the
intention of falsely implicating the accused.
18. Dr. Supriti Sharma (P.W.-4), who medically examined the
prosecutrix, did not find any external or internal injuries on her
body. The doctor further opined that the prosecutrix appeared to
be habituated to sexual intercourse; hence, no definite opinion
could be given regarding the occurrence of recent sexual
intercourse. She gave her report vide Ex.P/3 in this regard.
19. Inspector Sandhya Dwivedi (P.W.-10), in her cross-examination,
admitted that the prosecutrix, Sonia, had initially refused to
undergo medical examination. She further stated that she
20
subsequently took her personally for medical examination on
20.08.2006.
20. A close scrutiny of the statements of the prosecutrix and other
witnesses clearly reveals that the conduct and testimony of the
prosecutrix are highly doubtful. In this context, the Hon’ble
Supreme Court, in the case of Manak Chand alias Mani (supra),
has held in paras 5, 6, 7, and 8 as under:-
“5. The evidence of a prosecutrix in a case of rape is of the
same value as that of an injured witness. It is again true
that conviction can be made on the basis of the sole
testimony of the prosecutrix. All the same, when a
conviction can be based on the sole testimony of the
prosecutrix, the courts also have to be extremely careful
while examining this sole testimony as cautioned in State of
Punjab v. Gurmit Singh, (1996) 2 SCC 384: (AIR 1996 SC
1393):
“If evidence of the prosecutrix inspires confidence, it
must be relied upon without seeking corroboration of
her statement in material particulars. If for some reason
the court finds it difficult to place implicit reliance on her
testimony, it may look for evidence which may lend
assurance to her testimony, short of corroboration
required in the case of an accomplice. The testimony of
the prosecutrix must be appreciated in the background
of the entire case and the trial court must be alive to its
responsibility and be sensitive while dealing with cases
21involving sexual molestations.”
This was reiterated by this Court in Sadashiv Ramrao
Hadbe v. State of Maharashtra and Another (2006) 10
SCC 92: (AIROnline 2006 SC 679):
“It is true that in a rape case the accused could be
convicted on the sole testimony of the prosecutrix, if it is
capable of inspiring confidence in the mind of the court.
If the version given by the prosecutrix is unsupported by
any medical evidence or the whole surrounding
circumstances are highly improbable and belie the case
set up by the prosecutrix, the court shall not act on the
solitary evidence of the prosecutrix.”
Both the prosecutrix as well as the accused have a right
for a fair trial, and therefore when the statement of the
prosecutrix does not inspire confidence and creates a
doubt, the court must look for corroborative evidence.
Relying upon the case of Gurmit Singh (supra) this court
in Raju and others v. State of Madhya Pradesh (2008)
15 SCC 133 : (AIR 2009 SC 858) held as under:
“10. The aforesaid judgments lay down the basie
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,
22no 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.”
6. Does the testimony of the prosecutrix in the present case
inspire confidence? We are afraid it does not. Let us
appreciate the facts once again. Although, the first incident
of rape is alleged to be of 12.09.2000, the prosecutrix does
not disclose this to anyone immediately She then alleges
23
rape again on two or three different occasions later, though
no date and time are disclosed. She only discloses it to her
mother after one and half months. It has then come in the
evidence led by none other but the prosecution (in the
school register submitted in the court by PW-2 i.e Ram
Sahay), that the prosecutrix had attended her classes in the
school on 12.09.2000 at Dabwali, where she resides with
her parents. We must note that she has alleged tape on the
same day at village Sanwat Khera, where she was staying
at the relevant time with her sister in her matrimonial house.
This seems improbable, if not impossible. The other aspect
is the admitted position of the prosecution itself that the FIR
was ultimately filed as the initial proposal of marriage was
then turned down. All these facts do cast a doubt on the
story of the prosecution.
7. The prosecution then has also relied upon the medical
report of the prosecutrix given by Dr. Kulwinder Kaur as
PW-1 which states that the hymen of the prosecutrix was
ruptured, and therefore she was raped. To the contrary
when we examine the same medical report in detail an
entirely different picture emerges. The Trial Court, however
relied upon the evidence placed by the prosecution
regarding the date of birth of the prosecutrix, which was
recorded in the school register as 04.04.1987 and therefore
at the time of the alleged offence she was only thirteen and
24
half years of age and thus the finding of the Trial Court is
that, even if it is assumed for the sake of argument that the
prosecutrix was a consenting party to the sexual
intercourse, her consent would be immaterial since she was
less than sixteen years of age and therefore the offence of
rape stands proved. The High Court in the appeal, however,
even discards the presumption of the prosecutrix being a
consenting party and has completely relied upon the
testimony of the prosecutrix regarding rape and has
dismissed the appeal.
The evidence, as to the age or even rape has not been
examined properly by the Trial Court as well as the High
Court Courts must examine each evidence with open mind
dispassionately as an accused is to be presumed innocent
till proved guilty. In our adversarial system of criminal
jurisprudence, the guiding principle shall always be the
Blackstone ratio which holds that it is better that sen guilty
persons escape than one innocent be punished.
8. There are two aspects which ought to have been
considered by the Trial Court and the High Court in greater
detail than what has been done. The first is the age of the
prosecutrix. The age of the prosecutrix has an extremely
crucial bearing in the case. The only evidence relied by the
court for holding the prosecutrix as a minor (less than
25
sixteen years of age), is the school register of Government
Girls High School, which was placed in the Court by the
clerk of the school, Ram Sahay (PW-2). Undoubtedly, the
date of birth in the school register is 04.04.1987 which
makes the prosecutrix less than sixteen years of age at the
time of the incident. But it has also come in the evidence of
Ram Sahay (PW-2) that this date of birth was recorded not
on the statement of the parents of the prosecutrix, but by
some other person and more importantly, it was based on
the transfer certificate of Government Primary School
where the date of birth was recorded as 04.04.1987. All the
same, this transfer certificate, on the basis of which the
date of birth was recorded, was never produced in the
Court. Yet, both the Trial Court and the High Court have
relied upon the veracity of the school register. It is the same
school register which marks the presence of the prosecutrix
on 12.09.2000 in the school. This is also the date when the
prosecutrix was allegedly raped for the first time, in the
house of the appellant in village Sanwat Khera, whereas
the school is at another place called Dabwali Mandi. The
Trial Court discards the evidence in the same school
register, as not being authentic, when the defence had
raised the apparent contradictions on the prosecutrix being
in school and at the Sanwat Khera village at the same time.
This is not a fair appreciation of evidence, to say the least,
26
as same school register is the only basis for the
determination of the age of the prosecutrix!”
21. In light of above, in the present case, it is evident that the
conviction recorded by the learned Trial Court rests primarily on
the assumption that the prosecutrix was below 16 years of age at
the time of the alleged incident, thereby rendering her consent
immaterial. However, as discussed hereinabove, the prosecution
has failed to produce any cogent, reliable and legally admissible
evidence to conclusively establish the age of the prosecutrix. The
documentary evidence relied upon suffers from material
inconsistencies and lacks proper proof in accordance with law.
Consequently, the finding of the Trial Court holding the prosecutrix
to be a minor is unsustainable.
22. Further, the testimony of the prosecutrix does not inspire
confidence so as to form the sole basis of conviction. Her
evidence is riddled with material contradictions and
improvements, and she has resiled from significant portions of her
earlier statement. Her admissions regarding prior disputes with
her family, her independent conduct in leaving the parental home,
and the defence evidence indicating her relationship with another
person create serious doubt about the prosecution story. The
medical evidence also does not support the case of forcible
sexual intercourse. The doctor has categorically stated that no
external or internal injuries were found on the body of the
27prosecutrix and that she was habituated to sexual intercourse. No
definite opinion regarding recent sexual assault has been given.
This further weakens the prosecution case. It is also noteworthy
that there was a delay of approximately one and a half years in
lodging the FIR, for which no satisfactory explanation has been
offered by the prosecution. Such unexplained delay casts a
serious shadow on the veracity of the allegations. In criminal
jurisprudence, it is a settled principle that suspicion, however
strong, cannot take the place of proof. The prosecution is required
to prove its case beyond reasonable doubt, and the benefit of
doubt must necessarily go to the accused.
23. In the present case, the combined effect of failure to prove the
prosecutrix’s minority, her unreliable testimony, absence of
medical corroboration and the defence evidence gives rise to
reasonable doubt in the prosecution case.
24. Accordingly, this Court is of the considered opinion that the
conviction of the appellant under Section 376 of the Indian Penal
Code is not sustainable in the eyes of law.
25. In the result, the appeal is allowed. The impugned judgment
dated 30.09.2008 passed by the learned Trial Court is hereby set
aside. The appellant is acquitted of the charge under Section 376
of the Indian Penal Code.
26. The accused/appellant is reported to be on bail, therefore,
keeping in view the provisions of Section 437-A of CrPC (481 of
28the B.N.S.S.), appellant is directed to furnish a personal bond in
terms of form No.45 prescribed in the Code of Criminal Procedure
for a sum of Rs.25,000/- with one reliable surety 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 appellant on receipt of notice thereon shall
appear before the Hon’ble Supreme Court.
27. The trial Court record along with a copy of this judgment be sent
back immediately to the trial Court concerned for compliance and
necessary action .
Sd/-
(Rajani Dubey)
JUDGE
Ruchi
Digitally signed by
RUCHI YADAV RUCHI YADAV
