Chhattisgarh High Court Alters Conviction from POCSO Sec. 6 to IPC Sec. 376(2)(f) | Age of Prosecutrix Not Legally Proved, 10-Year Rigorous Imprisonment Imposed
Safiya Malik
The High Court of Chhattisgarh Division Bench of Justice Rajani Dubey and Justice Amitendra Kishore Prasad have altered the conviction and sentence imposed on the appellant. The court held that the conviction under Section 376(3) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act was not legally sustainable, and instead convicted the appellant under Section 376(2)(f) of the Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment for ten years. The court directed that the appellant shall receive the benefit of set-off for the period already undergone in custody since 22.12.2018, and the remaining sentence shall be served.
The matter arose from an appeal filed challenging the judgment of conviction and sentence passed by the Special Judge (POCSO Act), Baikunthpur, Koriya in Special Criminal Case (POCSO) No.04/2019 dated 19.09.2019. The trial court had convicted the appellant under Section 376(3) IPC and sentenced him to life imprisonment with a fine of one lakh rupees. The prosecution case originated from a report lodged on 20.12.2018 by the prosecutrix.
According to the prosecution, the prosecutrix’s parents were separated, and she resided with her father. On 05.12.2018 at night, while she was asleep with her sister, the accused, who was her father, allegedly raped her. She shared the incident with a relative, who conveyed it to her aunt. Following this, the prosecutrix was taken into her aunt’s custody. Subsequently, on 15.12.2018, while the prosecutrix was at her aunt’s house, the appellant, identified as her phupha (uncle by relation), allegedly committed sexual intercourse with her by removing her clothing despite her objection. She informed another aunt, who informed her mother, and the matter was then reported to the police. The police registered a case, arrested the appellant, and filed a charge sheet.
The trial court, based on the statements of the prosecutrix and supporting witnesses, as well as medical evidence, convicted the appellant under Section 376(3) IPC. The appellant challenged the conviction, arguing that there were contradictions in the witnesses’ statements, unexplained delay in lodging the FIR, and prior disputes between family members that could have led to false accusations.
During trial, the prosecution presented school records to establish the age of the prosecutrix as below 16 years at the time of the incident, citing the date of birth recorded as 05.06.2005. The Principal of the school produced admission and discharge registers, but admitted that she was not posted at the school at the time of the prosecutrix’s admission and that the handwriting in the register was not hers. The prosecutrix and her mother also stated her year of birth as 2005, though without documentary proof beyond the school register.
The defence argued that the school record could not be relied upon to conclusively establish the age of the prosecutrix, citing precedents including Ravinder Singh Gorkhi v. State of UP (2006), Alamelu v. State (2011), and Rishipal Singh Solanki v. State of UP (2022), which required corroborative evidence beyond mere school records to establish age. The defence further argued that the family environment, presence of multiple relatives in the house, and existing animosity provided grounds for reasonable doubt.
The State opposed the appeal, submitting that the trial court had properly appreciated the evidence and that the testimony of the prosecutrix, corroborated by her relatives and medical evidence, was sufficient for conviction.
The Division Bench first addressed the issue of the prosecutrix’s age at the time of the incident. The court recorded: “From the evidence, it appears that regarding the age of the prosecutrix, only school admission and discharge register (Ex-P/12) is available in support of the date of birth of the victim.” It further stated: “In light of the above, in the present case, it is clear that regarding the prosecution’s evidence with respect to the age of the victim, no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the victim was minor on the date of incident, despite that the learned Trial Court has held her minor in the impugned judgment.” The Bench therefore set aside the finding that the victim was below 16 or 18 years of age.
Regarding the allegation of forcible intercourse, the court carefully examined the testimony of the prosecutrix. It recorded: “PW-1 prosecutrix stated that the accused is her uncle (Phupha). Prior to 6 months, her father committed rape on her… On the date of incident, when she was sleeping with her aunt, her phupha i.e. accused… removed her clothes and forcibly committed sexual intercourse with her by gagging her mouth.” The court noted that she repeated this statement before the Magistrate under Section 164 CrPC and also remained firm during cross-examination.
The court further recorded the corroboration provided by her mother (PW-2), her mausi (PW-3), and her sister (PW-4), all of whom supported her version. The medical examination conducted by Dr. Ayushi Rai (PW-6) found that the hymen was recently ruptured with redness, and ruled out accidental rupture due to physical activity. The court observed: “Dr. Ayushi Rai (PW-6) also found her hymen ruptured so the medical report also supports the prosecution case. Thus, the prosecution has proved this fact that the accused committed rape with the prosecutrix.”
The Bench considered the delay in lodging the FIR, noting: “Looking to the statement of the prosecutrix, her mother and her aunt, it is clear that her mother and father are separated. In her statement, the prosecutrix stated that firstly her father committed forcible sexual intercourse with her and after some days… the accused, who is her phupha, committed forcible sexual intercourse with her, then she informed her bua/aunt/wife of the accused about the same but she did not report the matter, thereafter she informed the same to her sister and her mausi, thereafter her aunt (mausi) informed her mother (PW-2) about the same, then they went to police station and lodged FIR.” The court accepted this explanation as reasonable in the circumstances.
Ultimately, the Bench held that the offence under Section 376(2)(f) IPC was established. It observed: “The prosecution has failed to prove this fact beyond reasonable doubt that on the date of incident, the prosecutrix was below 16 or 18 years of age so the offence under Section 376 (3) of IPC and Section 6 of POCSO Act is not made out against the appellant and only the offence under Section 376 (2) (f) of IPC is made out against the appellant.”
The Division Bench altered the conviction and sentence. It recorded: “The conviction of the appellant is altered from Section 376 (3) of IPC to Section 376 (2) (f) of IPC and accordingly he is convicted under Section 376 (2) (f) of IPC and as the minimum sentence under Section 376 (2) (f) of IPC is of 10 years, thus looking to the facts and circumstances of the case, he is sentenced to undergo RI for 10 years.”
The court further directed: “The appellant is in jail since 22.12.2018, as such after setting off the period of detention undergone by the appellant against the sentence of imprisonment, the remaining jail sentence shall be served by him.”
The appeal was accordingly partly allowed. The court ordered: “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. The copy of this judgment be also sent to the concerned Jail Superintendent for information and necessary compliance.”
Advocates Representing the Parties
For the Appellant: Mr. Rohit Sharma, Advocate through Legal Aid
For the Respondent: Ms. M. Asha, PL
Case Title: Mahendra Singh @ Pappu v. State of Chhattisgarh
Neutral Citation: 2025: CGHC:42575-DB
Case Number: CRA No. 1679 of 2019
Bench: Justice Rajani Dubey, Justice Amitendra Kishore Prasad
