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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
ARVIND KUMAR VERMA, J.
Dhanjuram Tandan S/o Late Budharu Tandan - Appellant
Versus
State of Chhattisgarh – Respondent
CRA No. 291 of 2019
Decided on : 05-08-2024
(A) Indian Penal Code, 1860 – Sections 363, 366, 506 – Protection of Children from Sexual Offences Act, 2012 – Section 6 – Conviction and sentence for abduction and rape – The trial court convicted the appellant based on the prosecutrix's alleged minor status and her testimony; however, the appellate court found insufficient evidence to prove her age and consent, leading to the acquittal of the appellant. (Paras 1, 14, 18)
(B) Evidence – Burden of proof – The prosecution failed to provide conclusive evidence regarding the age of the prosecutrix, relying solely on school records without corroborating testimony, which is insufficient for conviction. (Paras 10, 12, 14)
(C) Consent – The court noted that the prosecutrix's own testimony indicated a consensual relationship, undermining the prosecution's claims of abduction and rape. (Paras 15, 16)
Facts of the case: The appellant was convicted for abducting and raping a minor girl, but the prosecution could not conclusively prove her age or that the act was non-consensual. The prosecutrix had left with the appellant willingly and lived with him for two months.
Findings of Court: The appellate court found that the prosecution failed to prove the prosecutrix's minor status and that she had consented to the relationship, leading to the acquittal of the appellant.
Issues: The main issues were whether the prosecutrix was a minor at the time of the incident and whether the appellant had abducted her or committed rape.
Ratio Decidendi: The court ruled that the prosecution's evidence regarding the prosecutrix's age was insufficient, and her own testimony indicated consent, thus no offence was made out against the appellant.
Result: The appeal is allowed, and the appellant is acquitted.
Certainly. Based on the provided legal document, here are the key points:
The prosecution must establish conclusive evidence regarding the victim's age and the absence of consent in cases of sexual assault. Insufficient evidence in these areas can lead to acquittal (!) (!) .
The court emphasized that reliance solely on school records, such as the Dakhil Kharij register, without corroborating testimony from the author of the record or other reliable evidence, is inadequate to prove the victim's age (!) (!) .
Medical evidence, including ossification tests, cannot be the sole basis for determining age, and such tests are only useful as guiding factors in the absence of documentary proof (!) .
The burden of proof lies with the prosecution to conclusively establish that the victim was a minor at the time of the incident. In this case, the prosecution failed to produce legally admissible and conclusive evidence of the victim's minor status (!) (!) .
The court noted that the victim's own testimony indicated a consensual relationship, and she was not subjected to forcible sexual acts. The medical examination did not reveal signs of forcible intercourse (!) (!) .
Since the evidence did not conclusively prove that the prosecutrix was a minor, the charges under laws pertaining to sexual assault and abduction could not be sustained, leading to the acquittal of the appellant (!) (!) .
The appellate court set aside the conviction and ordered the appellant's release, emphasizing that the standard of proof for establishing age is high and requires credible, admissible evidence (!) .
The court also directed the appellant to furnish a personal bond and surety, in accordance with procedural provisions, for a specified period (!) .
The record and the judgment are to be sent back to the trial court for compliance and further necessary action (!) .
These points highlight the importance of reliable evidence in establishing critical facts such as age and consent in cases of sexual offences, and the necessity for the prosecution to meet the burden of proof with credible documentation.
ORDER :
1. This criminal appeal has been preferred by appellant against the judgment of conviction and order of sentence dated 18.01.2019, passed by learned 7th Additional Sessions Judge, Raipur, (CG) in Special Cr. Case No.186/2016, whereby the appellant stands convicted and sentence as under:
Conviction Sentence
U/s 363 of IPC Rigorous imprisonment for 02 years & fine of Rs.500/-, in default of payment of fine 1 month additional RI.
U/s 366 of IPC RI for 03 years & fine of Rs.1,000/-, in default of payment of fine 02 months additional RI.
U/s 506 of IPC RI for 02 years & fine of Rs.500/-, in default of payment of fine 1 month additional RI.
U/s 6 of POCSO Act Rigorous imprisonment for 10 years & fine of Rs.5,000/-, in default of payment of fine 03 months additional RI.
All the sentences directed to run concurrently
2. The prosecution case, in brief, is this that complainant (father of victim) lodged missing report to the concerned Police Station mentioning therein that on 19.12.2015 at morning her minor daughter went out from the house without intimating anything to her family members and did not return back. Based upon report, initially the Police registered FIR for offence under Section 363 of IPC against known person. Thereafter, on the basis of statement of victim/prosecutrix recorded under Section 161 of Cr.P.C, offence under Sections 366, 376 of IPC and Section 4, 6 & 8 of the POCSO Act were also added.
3. On completion of investigation, final report/charge sheet was filed against the appellant for the offence under Sections 363, 366, 376, 506 of IPC and Section 4, 6 & 8 of the POCSO Act.
4. Prosecution in order to prove its case examined total 27 witnesses. Statement of appellant (accused) was also recorded under Section 313 of CrPC in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. However, no evidence was adduced by him in his defence.
5. After hearing learned counsel for the parties and appreciating the evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellant in the manner as described in Para-1 of this judgment. Hence this appeal.
6. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the evidence available on record. As per case of prosecution, age of the prosecutrix was about 16 years at the time of alleged incident, but no authentic documentary proof was filed in order to show that the prosecutrix was a minor girl on the alleged date. The date of birth of prosecutrix mentioned as 17.06.1999 in Dakhil Kharij Register (Ex.P-28/C) cannot be said to be conclusive as the author of the said document could not be examined. Prosecution did not produce the birth certificate or matriculation/equivalent certificate of prosecutrix and also failed to explain that on what basis said entry was made in Dakhil Kharij Panji. Further, no ossification test of the prosecutrix has been conducted to ascertain her age. Learned counsel further submits that there are many contradictions and omissions in the statement of the prosecutrix as well as other prosecution witnesses, which was not considered properly by the trial Court. From the statement of prosecutrix, it reflects that there was affair between the appellant and the prosecutrix and, therefore, she willingly went with him of her own free will and visited many places. Trial Court ignored the fact that nothing has been found in the medical report of prosecutrix/victim though there is allegation of rape. Medical evidence also shows that there was no sign of forcible sexual intercourse on the body of the prosecutrix. As such, the impugned judgment of conviction recorded and sentence awarded deserves to be set-aside.
7. On the other hand, learned counsel for the State supporting the impugned judgment and submits that the prosecutrix was a minor girl on the date of incident and this fact has been duly proved by the prosecution by ad
The prosecution must provide conclusive evidence of a victim's age and lack of consent in sexual assault cases; insufficient evidence leads to acquittal.
The prosecution must provide conclusive evidence of a victim's age in POCSO cases; reliance on school records alone is insufficient without corroborative proof.
The judgment emphasizes the admissibility of school registers to determine the age of a minor, the reliability of the victim's testimony in sexual offence cases, and the mandatory minimum sentences u....
School records' date of birth entries admissible but not conclusive proof of age without evidence of basis; prosecution must prove victim's minority beyond reasonable doubt for statutory rape convict....
The importance of proving the prosecutrix's age and the need for corroboration in her statements to establish guilt beyond reasonable doubt.
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