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2024 Supreme(Online)(Chh) 19651
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Ramesh Sinha, CJ, Ravindra Kumar Agrawal, J
HEMANT @ HEMLAL CHAKRADHARI – Appellant
Versus
STATE OF CHHATTISGARH – Respondent
CRA/124/2024
Mr. Anurag Verma, Advocate; Mr. Shailendra Sharma, Panel Lawyer; Mr. Wasim Miyan, Advocate
The prosecution must prove the age of the prosecutrix beyond reasonable doubt; reliance on uncorroborated school records is insufficient to establish minor status.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 374(2) - Indian Penal Code, 1860 - Sections 376(2)(j), 376(2)(n) - Protection of Children from Sexual Offences Act, 2012 - Section 6 - Criminal appeal against conviction for rape and related offences - Conviction set aside due to failure of prosecution to prove age of prosecutrix and consensual nature of relationship - The prosecutrix was found to have engaged in consensual physical relations with the appellant, undermining the charge of rape. (Paras 1, 22, 24)
(B) Burden of Proof - The prosecution must prove the age of the prosecutrix beyond reasonable doubt, and mere reliance on school records without corroborative evidence is insufficient. (Paras 11, 12, 16, 22)
Facts of the case:
The prosecutrix alleged that the appellant had sexual relations with her, resulting in pregnancy and subsequent miscarriage. The appellant was convicted based on the prosecutrix's testimony and school records indicating her age. (Paras 1, 2, 22)
Findings of Court:
The court found that the prosecution failed to establish the prosecutrix's age and that the relationship was consensual, leading to the conclusion that no offence of rape was made out. (Paras 22, 24)
Issues: The main issues were whether the prosecutrix was a minor at the time of the incident and whether the relationship was consensual. (Paras 11, 22)
Ratio Decidendi: The court ruled that the prosecution did not meet the burden of proof regarding the age of the prosecutrix, and the evidence indicated a consensual relationship, thus negating the charge of rape. (Paras 22, 24)
Result: Appeal allowed; conviction and sentence set aside.
Judgment On Board
Per Ramesh Sinha, C.J.
25/11/2024
1. The present is a Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 , against the impugned judgment of conviction and sentence dated 19.12.2023, passed by Learned Additional Sessions Judge, F.T.S.C., (POCSO) Dhamtari, in Special Criminal Case (POCSO) No. 26 of 2023, whereby the appellant has been convicted for the offence under Section 376(2)(j) and (n) of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act”) and has been sentenced for the offence of Section 6 of POCSO Act for R.I. for 20 years with fine of Rs. 5,000/-, in default of payment of fine further R.I. for 6 months. Since the appellant was sentenced for the offence under Section 6 of POCSO Act, no separate sentence was awarded to the appellant for the offence under Section 376(2)(j) and (n) of IPC , as provided under Section 42 of the POCSO Act.
2. The brief facts of the case are that on 10.03.2023, the prosecutrix had made a written complaint (exhibit P-1) to the police with the allegation that while working at Brickkiln at village Kamraud, she introduced with the appellant and they entangled with each other and engaged in making physical relation in her house. From the physical relation with the appellant, she conceived pregnancy and when she disclosed about her pregnancy to the appellant, two days prior to the date of lodging of the report, he gave some medicine along with the groundnut and jaggery for causing miscarriage and assured her that when he attains the age of majority, he will perform marriage with her. By the medicine given by the appellant, she suffered miscarriage on 10.03.2023. Then she was being taken to hospital by her family members.
3. From the hospital, a merg intimation was sent to police station with respect to death of foetus, who was delivered by the prosecutrix and the merg intimation is Exhibit P-22. On the basis of merg intimation sent by the doctor, the police has registered the offence under Sections 376(2)(n) and 315 of IPC and Section 4 of POCSO Act against the appellant and started investigation. The dead body of foetus delivered by the prosecutrix was sent for its post-mortem to Civil Hospital, Kurud, where doctor has conducted the post-mortem and gave its report (exhibit P-24) and opined that according to the finding and post-mortem and history, the age of foetus is approximately 5 months and sex of foetus is male. The inquest of the foetus was also prepared vide Exhibit P-6. The prosecutrix was also sent for her medical examination to Civil Hospital Kurud, where PW- 4/Dr. Sheelarani Dewangan has medically examined her and gave report (exhibit P-17). While examining the prosecutrix, she opined that the prosecutrix was about to deliver a foetus and the foetus was coming out from her private part. After her examination she opined that on the basis of examination she had an abortion of around 5 months’ foetus on 10.03.2023. During the investigation, the DNA samples were taken from the body of the prosecutrix, the appellant as well as the foetus, which was sent for its DNA examination report to State FSL Raipur, from where DNA report (exhibit P-32) came and according to the DNA report, the appellant was found the biological father of the foetus came out from the prosecutrix.
4. With respect to the age and date of birth of the prosecutrix, the progress report card of class-1 of the prosecutrix has been seized vide seizure memo (exhibit P-3) and the school register from Naveen Prathmikshala, Mandraud (Bhatapara), District Dhamtari has also been seized vide seizure memo (exhibit P-13). After retaining the attested true copy of the school register (exhibit P-14C), the original register was returned back to the school. An admission certificate (exhibit P-16) has also been seized by the police, which was issued by the Headmaster of the school, in which the date of birth of the prosecutrix is shown as 10.07.2006. The appe
