HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 20-6-2019
Pronounced on 24-6-2019
CRA No. 898 of 2001
Vinod Kumar, son of Viswanath, aged 28 years, occupation Agriculturist
R/o. Village Kenderi PS Chando, Distt. Surguja (CG)
State of Chhattisgarh (CG)
For Appellant : Ms. C.K. Navrang, Adv.
For State : Mr. Vikram Dixit, Govt. Adv.
Hon’ble Shri Sharad Kumar Gupta, J.
1. Challenge in this appeal is levied to the judgment of conviction
and order of sentence dated 7-9-2001 passed by the Special Judge
under Scheduled Castes and SectionScheduled Tribes (Prevention of
Atrocities) Act, 1989 (in brevity the SCST Act) in Misc. Criminal Case
No. 1/2001 whereby and whereunder, he has convicted and sentenced
the appellant as under :-
Conviction u/S. Sentence RI. Fine In default of
payment of fine
376, IPC 5 Years Rs. 500/- 3 months RI
2. In brief, the prosecution story is that on 30-11-2000 prosecutrix
was aged about 12 years old. She was resident of village Kandri. She
is a member of Scheduled Caste. The applicant is neither a member of
Scheduled Caste nor Scheduled Tribe. On Tuesday of Jeth month of
year 2000, when prosecutrix was alone in her house, applicant entered
in her house, closed the door from inside, gagged her mouth by a
handkerchief and committed forcible sexual intercourse with her.
Thereafter, he committed repeatedly sexual intercourse with her. When
she became pregnant he threatened her that if she discloses about the
incident to anyone, she will face dire consequences. When her belly
grown, then she disclosed the incident to her mother. On 30-11-2000
she lodged an FIR in police station Chando. After completion of the
investigation, a charge sheet was filed against him for the offences
punishable under Section 376 (2)(f) and Section 3(1)(xii) of the SCST
Act. The trial Court framed the charges against him under Section 376
of the IPC and Section 3(1)(xii) of SCST Act. He abjured the charges
and faced the trial. To bring home the charges against him, the
prosecution examined 9 witnesses in all. He did not examine any
witness in his defence. After conclusion of trial, the trial Court convicted
and sentenced him as mentioned above. However, he was acquitted of
the charge punishable under Section 3(1)(xii) of the SCST Act.
3. Being aggrieved by the aforesaid judgment of conviction and
order of sentence, the appellant has preferred this criminal appeal.
4. Counsel for the appellant submits that the appellant has been
falsely implicated. No rape has been committed by him with the
prosecutrix. Trial Court has not properly appreciated the evidence
available on record in proper perspective. She was the consenting
party. Therefore, the impugned judgment of conviction and order of
sentence may be set aside and he may be acquitted of the aforesaid
5. On the other hand, the Panel Lawyer appearing for the State
supported the impugned judgment and submitted that the trial Court
has rightly convicted and sentenced the appellant. Hence, the appeal
may be dismissed.
6. As per the alleged MLC report Ex. P-7, P.W. 8 Dr. Smt. Kiran
Bhajgavli had examined prosecutrix and found that no any external
injury was present on her body. No injury was present on her private
part. She was pregnant by 28 weeks.
7. There is no such evidence on record on strength of which it can
be said that Ex. P-7 is not believable. Thus, this Court believes on Ex.
8. Now we will consider as to what was the age of the prosecutrix
on Tuesday in the month of Jeth of year, 2000.
9. In the matter of Alamelu and another Vs. State represented by
Inspector of Police, [(2011) 2 SCC 385], the Supreme Court has held
“9. That the transfer certificate which is issued by a government
school and is duly signed by Headmaster would be admissible in
evidence u/s 35 of the SectionEvidence Act, 1872. However, the
admissibility of such a document would be of not much
evidentially value to prove the age of the prosecutrix 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 evidentially value unless the person, who made
the entry or who gave the date of birth is examined.”
10. As per the alleged certificate Ex. P-4 the date of birth of the
prosecutrix is 04.03.1990. In the photocopy of Dakhil Kharij register Ex.
P-5C the date of birth of the prosecutrix is mentioned as 04.03.1990.
11. P.W.-6 Salim Akhtar who is the teacher in the Alternative School,
Jawakhar says in para 7 during his cross-examination that this is wrong
that he had made entry in Ex.P-5C arbitrarily, he had made the relevant
entry after the alleged commission of incident.
12. There is no such evidence on record on strength of which it can
be said that aforesaid statement of P.W.-6 Salim Akhtar is not simple,
not natural, not normal. Moreover, P.W.-8 Doctor Smt. Kiran Bhajagwali
says in para 2 that prosecutrix was about 14 years of age. Moreover,
during the recording of the statements of the prosecutrix the Court
estimated the age of prosecutrix is 12 years. In these circumstances
and looking to the above mentioned judicial precedent laid down the
Hon’ble Supreme Court in the matter of Alamelu (supra). This Court
believes on Ex. P-4 and Ex.P-5C.
13. After appreciation of the evidence discussed herebefore, this
Court finds that prosecution has succeeded to prove that on Tuesday in
the month of Jeth of year, 2000 prosecutrix was below 16 years of age.
14. Now we will consider that whether as to alleged rape was
committed by appellant with the prosecutrix.
15. PW-1 prosecutrix says in para 2 of her statement given on oath
that appellant entered in her house and committed forcible sexual
intercourse with her.
16. PW-2 Pati Bai who is the mother of the prosecutrix says in para 2
of her statement given on oath that prosecutrix had told her that
appellant had committed wrong act with her in the month of Jeth and,
thereafter, he repeatedly committed wrong act with her.
17. PW-3 Chikhru and PW-4 Hafij Khan say in para 2 of their
statement given on oath that when they asked prosecutrix as to whose
pregnancy she is carrying then she told that she is impregnated by
18. In the matter of Munna -v- Sate of M.P. [(2014) 10 SCC 254 ]
para 11 the Hon’ble Supreme Court has observed as under :-
“11. Thus, while absence of injuries or absence of raising alarm
or delay in FIR may not by itself be enough to disbelieve the
version of prosecutrix in view of the statutory presumption under
Section 114-A of the Evidence Act but if such statement has
inherent infirmities, creating doubt about its veracity, the same
may not be acted upon. We are conscious of the sensitivity with
which heinous offence under Section 376 IPC has to be treated
but in the present case the circumstances taken as a whole
create doubt about the correctness of the prosecution version.
We are, thus, of the opinion that a case is made out for giving
benefit of doubt to the accused.”
19. Hon’ble Supreme Court in the matter of Radhu Vs. State of M.P.
[(2007)12, SCC 57] has laid down following judicial precedent :-
“A finding of guilt in a case of rape, can be based on the
uncorroborated evidence of the prosecutrix and her testimony
should not be rejected on the basis of minor discrepencies and
contradictions. Absence of injuries on the private parts of the
victim will not by itself falsified the case of rape, nor can be
construed as evidence of consent nor the opinion of a doctor that
there was no evidence of any sexual intercourse or rape,sufficient
to disbelieve the victim. However courts should , at the same
time, bear in mind that false charges of rape are not uncommon,
and there are some rare instances where a parent has persuaded
a gullible or obedient daughter to make a false charge of a rape
either to take revenge or extort money or to get rid of financial
liability. Whether there was rape or not would depend ultimately
on the facts and circumstances of each case.”
20. Hon’ble Supreme Court in the matter of Raju and others -v-
State of MP [(2009) 3 SCC(Cri) 751)], held that testimony of the
prosecutrix is believable on a par with that of an injured witness, her
testimony cannot always be presumed to be gospel truth. Possibility of
exaggeration or embellishment or false implication where several
persons are accused cannot be ruled out. Possibility of immoral past of
prosecutrix based on evidence can be considered.
21. In the matter of Mohd. Ali -v- State of UP [2015 (7) SCC 272],
Hon’ble Supreme Court observed in para 30 as under :-
“30. True it is, the grammar of law permits that the testimony of
a prosecutrix can be accepted without any corroboration without
material particulars, for she has to be placed on a higher
pedestal than an injured witness, but, a pregnant one, when a
court, on studied scrutiny of the evidence finds it difficult to
accept the version of the prosecutrix, because it is not
unreproachable, there is requirement for search of such direct or
circumstantial evidence which would lend assurance to her
22. In the matter of State of H.P. Vs. Shree Kant Shekari [(2004)8
SCC 153], the Hon’ble Supreme Court has dealt with the false
implication, the relevant portion of para 22 reads as under :-
“22. “…………………. In any event no girl of a tender age and her
parents would like to jeopardise her entire future by falsely
implicating a person alleging forcible sexual intercourse”
23. In the case in hand, the prosecutrix is a tender aged girl. Looking
to the facts and circumstances of the case, there is no possibility that
prosecutrix and her mother would stake the future of the prosecutrix to
falsely implicate the appellant. Thus, looking to the judicial precedent in
the matter of Shree Kant Shekari (supra), this Court finds that there is
no possibility of false implication of the appellant in the case in hand.
24. There is no such omissions and contradictions have been dealt
during the cross-examination of aforesaid witnesses which can
adversely affect the aforesaid testimony of the aforesaid witnesses.
25. There is no such material available on record on the strength of
which it can be said that P.W.-3 Chikhru and P.W.-4 Hafij Khan had
given aforesaid statements only because they are interested with the
prosecutrix’s family for such reason or prejudiced with appellant on
account of such reasons.
26. In the matter of Shree Kant Shekari (supra), the Hon’ble
Supreme Court has held in para 18 as under :-
“18. The unusual circumstances satisfactorily explained the delay
in lodging of the first information report. In any event, delay per
se is not a mitigating circumstance for the accused when
accusations of rape are involved. Delay in lodging the first
information report cannot be used as a ritualistic formula for
discarding the prosecution case and doubting its authenticity. It
only puts the court on guard to search for and consider if any
explanation has been offered for the delay. Once it is offered, the
court is to only see whether it is satisfactory or not. In case if the
prosecution fails to satisfactorily explain the delay and there is
possibility of embellishment or exaggeration in the prosecution
version on account of such delay, it is a relevant factor. On the
other hand, satisfactory explanation of the delay is weighty
enough to reject the plea of false implication or vulnerability of the
prosecution case. As the factual scenario shows, the victim was
totally unaware of the catastrophe which had befallen her. That
being so, the mere delay in lodging of the first information report
does not in any way render the prosecution version brittle. These
aspects were highlighted in SectionTulshidas Kanolkar v. State of Goa
[(2003) 8 SCC 590 : 2004 SCC (Cri) 44] .”
27. The relevant portion of para-13 of Puran Chand -v- State of H.P.
[(2014) 5 SCC 689] wherein the Hon’ble Supreme Court has made
some observation is quoted below :-
“13. ……………The delay in lodging the FIR has been clearly
explained by the prosecution relating the circumstance and the
witnesses supporting the same have stood the test of scrutiny of
the cross-examination as a result of which the version of the
victim girl cannot be doubted. The delay in lodging the FIR thus
stands fully explained.”
28. In the case in hand alleged FIR Ex.P-1 is delayed. P.W.-1
prosecutrix says in para 3 that appellant had threatened her. This
reason has also been mentioned in Ex.P-1.
29. There is no such evidence on record on strength of which it can
be said that the aforesaid explanation is not natural, not simple, not
normal. Moreover prosecutrix was a tender aged girl. In these
circumstances, this Court finds that delay in lodging Ex.P-1 is
satisfactory and convincing. Thus, looking to the above judicial
precedents laid down by Hon’ble Supreme Court in the matter of Shree
Kant Shekari (supra), Puran Chand (supra) and Munna (supra), this
Court finds that delay in lodging Ex.P-1 is not fatal to the prosecution
30. There is no such evidence on record on the strength of which it
can be said that Ex.P-1 is fabricated or concocted to falsely implicate
the appellant in alleged offence.
31. In the matter of Harpal singh -v- State of Himanchal Pradesh
[(1981) 1 SCC 560], which was a matter of sexual intercourse with a girl
below 16 years of age, Hon’ble Supreme Court held that consent of girl
below 16 years of age for sexual intercourse is of no consequence. The
fact that no injury was detected on the private part of the girl and that
she was found to have been used to sexual intercourse is immaterial.
32. In Shree Kant Shekari (supra), Hon’ble Supreme Court dealt
with the matter of sexual intercourse with minor girl, the relevant portion
of para 14 is extracted herebelow :-
“14. …….Therefore, on the date of occurrence and even when
the FIR was lodged on 20-11-1993 she was about 14 years of
age. Therefore, the question of consent was really of no
33. This has been earlier decided that on Tuesday in the month of
Jeth of year, 2000 prosecutrix was below 16 years of age. Thus, looking
to the above mentioned judicial precedent laid down by the Hon’ble
Supreme Court in the matter of Harpal Singh (supra), Shree Kant
Shekari (supra), this Court finds that the question of consent of the
prosecutrix does not arise in the case.
34. Looking to the above mentioned facts and circumstances of the
case, this Court finds that the aforesaid statements of P.W.-1
prosecutrix, P.W.-2 Pati Bai, P.W.-3 Chikhru, P.W.-4 Hafij Khan are
simple, natural and normal. Thus on the basis of aforesaid judicial
precedents laid down by Hon’ble Supreme Court in the matters of
Munna (supra), Radhu (supra), Raju (supra) and Md. Ali (supra), this
Court finds that this Court can act upon the sole testimony of the
35. In the case in hand aforesaid statement of prosecutrix gets
corroborations from the aforesaid statements of P.W.-2 Smt. Pati Bai,
PW3 Chikhru, PW4 Hafij Khan, Ex.P-1 and Ex. P-7.
36. After appreciation of the evidence discussed herebefore this
Court believes on the aforesaid statements of P.W.-1 prosecutrix, P.W.-
2 Smt. Pati Bai, P.W.-3 Chikhru and P.W.-4 Hafij Khan.
37. After appreciation of the evidence discussed herebefore, this
Court finds that prosecution has succeeded to prove beyond the
reasonable doubt that the appellant had committed rape with
prosecutrix which is punishable under Section 376(1) of the IPC. This
Court affirms the judgment of conviction and order of sentence passed
by the trial Court.
38. The appeal being devoid of merit deserves to be and is hereby
39. The appellant is reported to be on bail. His bail and bonds are
cancelled. He is directed to surrender immediately before the trial Court
for undergoing the remaining part of sentence, if any. The trial Court is
also directed to take the appellant in custody immediately for
undergoing the remaining part of sentence, if any.
(Sharad Kumar Gupta)