1 2025:CGHC:37622 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 495 of 2004  Sanjay Kumar S/o Dayaram Mandavi, aged about 25 years, R/o village Debi Nawagaon, P.S. Narharpur, Distt. North Bastar, Kanker (C.G.) (Present address village Loharsı, P.S. Arjuni, Distt. Dhamatari (C.G.) ---- Appellant Versus  State of C.G, Through: P.S. Narharpur, Distt. North Bastar, Kanker (C.G.). ---- Respondent -------------------------------------------------------------------------------- For Appellant : None. For Respondent-State : Mr. Soumitra Kesharwani, PL. -------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 31.07.2025 1. This criminal appeal has been preferred by appellant against the judgment of conviction and order of sentence dated 29.03.2004, passed in Sessions Trial No.354/03 by learned Sessions Judge, (FTC), Kanker, Distt-Kanker, (CG), whereby appellant/accused stands convicted and sentenced as under: - 2 Conviction Sentence U/s 376 of the Indian Penal Code R.I. for 07 years and fine of Rs.1,000/-, in default of payment of fine, additional R.I. for 06 month. U/s 506 of the Indian Penal Code R.I. for 06 months and fine of Rs.250/-, in default of payment of fine, additional R.I. for 02 month. U/s 450 of the Indian Penal Code R.I. for 05 years and fine of Rs.1,000/-, in default of payment of fine, additional R.I. for 06 month. 2. The present appeal was filed in the year 2004 and the appellant was granted bail by this Court vide order dated 25.07.2005. 3. No one appeared on behalf of the appellant when the matter was called out for hearing, therefore, I requested for assistance from a Counsel of the High Court Legal Services Committee. Ms. Sameeksha Gupta, Advocate is nominated to assist the Court on behalf of the appellant. 4. I have gone through the judgment under appeal and the depositions of witnesses and exhibits assisted both by Ms. Sameeksha Gupta, Advocate through the High Court Legal Services Committee and Learned State Counsel. In view of 3 (2014) 14 SCC 222 (Surya Baksh Singh v. State of Uttar Pradesh), I do not consider it necessary to adjourn this case and issue fresh notice to the appellant as his interest has been duly taken care of by nominating another Counsel from the High Court Legal Services Committee. 5. The prosecution case, in brief, is this that on the pretext of marriage, present appellant has committed forceful sexual intercourse with minor victim/prosecutrix in her house on various occasion (four times), due to which, she become pregnant. Based upon report lodged by victim, FIR was registered against the appellant and he has been arrested. 6. On completion of investigation, challan/charge sheet was filed against the appellant and based upon which trial Court framed the charges against him. 7. Prosecution in order to prove its case examined total 16 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. 8. 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 4 this judgment. Hence this appeal. 9. 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 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. There are many contradictions and omissions in the statements of the prosecution witnesses, which were not considered properly by learned trial court. There is delay in lodging of FIR, which has not been explained properly by the prosecution. From the statement of prosecutrix, it reflects that there was love affair between the appellant and the prosecutrix as the victim has allowed the appellant to enter in her house exactly at that time when she was alone in her house and, thereafter, established physical relationship with him with her own will. As such, the impugned judgment of conviction recorded and sentence awarded deserves to be set-aside. 10. 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 adducing oral and 5 documentary evidence, therefore, her consent is irrelevant. Prosecutrix was subjected to forcible sexual intercourse by appellant, due to which, she become pregnant and, thereafter, a meeting was held in the village in which appellant has admitted his guilt. Being so, the impugned judgment is strictly in accordance with law and the present appeal is liable to be dismissed. 11. Heard learned counsel for the respective parties and perused the record including the impugned judgment. 12. Now this Court has to see whether the prosecution has been able to prove that on the date of incident prosecutrix was minor. Though PW-1/prosecutrix and her mother (PW-2) in their deposition have stated that victim was aged about 17 years & 02 months, but failed to explain the Date of Birth of victim. The prosecution has heavily relied upon the entry made in birth certificate form [Ex.D-1(C)] regarding DOB of victim, however, Smt. Prembani (Kotwarin) examined as DW-1 and stated that she is not the author of Ex.D-1, the entry made in Ex.D-1/c by the Ex-kotwar, but the prosecution has failed to examine the Ex-kotwar before the trial Court. Thus, it is clear that age of the victim has not been proved as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. 6 13. Now coming to the point whether the appellant has committed rape with the prosecutrix ? Prosecutrix in her Court statement has stated that appellant had committed forceful sexual intercourse with her about four times in her house on different dates. Since, the appellant has threatened to kill her, she has not raised alarm during sexual intercourse by the appellant. She further stated that when due to sexual intercourse, she become pregnant, she asked the appellant for marriage, to which, appellant went to his house at village -Loharshi for asking his parents for marriage. He also assured the victim that after 2 to 4 days he came back and get married with her. She further stated that appellant told her to abort the pregnancy and enjoy the life and in the next year he will marry her. 14. PW-2/mother of victim in her Court evidence has stated that her daughter PW-1 intimated her that appellant has committed forceful sexual intercourse with her, due to which, she become pregnant, hence, she (PW-2) went to the house of the appellant alongwith the victim and asked the appellant regarding physical relationship and pregnancy, to which, he (appellant) accepted the same, hence, she (PW-2) left the victim to the house of appellant stating the pregnancy of victim belongs to the appellant. 7 15. 7 15. It is pertinent to mention here that there is delay in lodging of FIR, which has not been explained properly by the prosecution. Further, allegation against the appellant is that he has committed forceful sexual intercourse with the victim in her house on different dates and times when she was alone in the house, how it is possible that appellant came to know that victim was alone in her house, he went there and committed forceful sexual intercourse with her for four times. Thus, looking to the evidence of prosecutrix, it is clear that there was love affair between the appellant and prosecutrix, therefore, they established physical relationship in various occasion in the house of victim with their own will. 16. Since this Court has already observed that the prosecution has failed to prove that on the date of incident victim was minor, in the given set of facts and circumstances of the case, no offence is made out against the appellant. 17. In the result, the appeal is allowed and impugned judgment dated 29.03.2004 is hereby set aside. The appellant is acquitted of the charge under Sections 376, 506, 450 of IPC. 18. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Arvind Kumar Verma) JUDGE J/-