'No Clinching Evidence Of Victim's Minority': Chhattisgarh High Court Reduces Punishment Of Man Convicted For Raping Niece

The Chhattisgarh High Court has altered the order of conviction against a man accused of having forcible sexual intercourse with niece, who had taken his refuge after being sexually assaulted by her father, on the ground that no clinching or legally admissible evidence is available on record to establish her minority.While modifying the conviction from Section 376(3) IPC which penalizes rape on a woman under sixteen years of age to Section 376(2)(f) IPC (rape by relative) as well as order of sentence from life to 10 years imprisonment, a division bench of Justice Rajani Dubey and Justice Amitendra Kishore Prasad held –“…it is clear that the 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. Hence we set aside the finding recorded by the learned Trial Court that on the date of incident, the victim was below 16 or 18 years of age.”Section 376(2)(f) IPC pertains to rape committed by a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman.The victim lodged an FIR on December 20, 2018 stating that after the separation of her parents, she used to reside with her father along with her sister. On December 05, 2018, while she was asleep, her father committed forcible sexual intercourse with her. Subsequently, her aunt (bua) upon coming to know about the incident, reprimanded her father and took the victim to her house.On December 15, 2018, when the victim was sleeping in the night, her uncle (phupha)/the accused-appellant by removing her clothing established physical relationship. Though she resisted, the appellant did not stop. When the victim shared such unfortunate incident with her aunt (mausi), the later informed the victim's mother after which the report was lodged. The appellant was arrested and investigation was taken up. Upon its completion, a charge-sheet was filed against the appellant. The trial Court found the appellant guilty under IPC Section 376(3) (rape with a woman under the age of 16) and sentenced him to imprisonment for life along with fine. Being aggrieved, the appellant moved the high court in appeal. Before delving into the merits of the case, the bench examined the evidence on record as to minority of the victim. Though school admission register was produced in support of the date of birth of the victim, the School Principal admitted that she was not posted in the said school when the victim took admission and thus, endorsement was not in her handwriting.Moreover, even though the victim stated her age to be around 14 years at the time of incident and her mother specifically stated her date of birth to be 05.06.2005, such evidence was held inadmissible since the basis of such claim was not corroborated by any admissible evidence. Thus, the Bench set aside the finding recorded by the trial Court that on the date of incident, the victim was below 16 or 18 years of age.So far as the commission of forcible sexual intercourse was concerned, from the evidence of the victim, which was duly corroborated by the evidence of prosecution witnesses including her sister, aunt (mausi) and mother, the Court was of the view that the prosecution has proved the case beyond reasonable doubt the appellant had perpetrated the heinous act.The appellant challenged the veracity of the prosecution case by citing delay in lodging of FIR but the Court was satisfied with the explanation offered by the prosecution in order justify it. Accordingly, it modified the order of conviction and sentence by observing –“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, as such 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.”Case Title: MS v. State of ChhattisgarhCase No: CRA No. 1679 of 2019Date of Judgment: August 22, 2025Counsel for the Appellant: Mr. Rohit Sharma, Advocate (Legal Aid Counsel)Counsel for the State: Ms. M. Asha, PLCitation: 2025 LiveLaw (Chh) 76Click Here To Read/Download Order

'No Clinching Evidence Of Victim's Minority': Chhattisgarh High Court Reduces Punishment Of Man Convicted For Raping Niece

Jyoti Prakash Dutta

Tags