1 2025:CGHC:10480-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 426 of 2010 State of Chhattisgarh, Through Police Station House, Sakti, Distt.: Janjgir- Champa (C.G.) ... Appellant versus Sudheram, S/o Ram Ratan Patel, Aged about 22 years, R/o Basantpur, P.S.H.: Sakti, Tahsil: Sakti, Distt.: Janjgir-Champa (C.G.) ... Respondent For State/Appellant : Mr. Ruhul Ameen, P.L. For Respondent : Mr. Deepak Kumar Singh, Advocate D.B:-Hon’ble Shri Justice Sanjay S. Agrawal, Hon’ble Shri Justice Radhakishan Agrawal Judgment on Board Per: Sanjay S. Agrawal, J. 04/03/2025 1. This appeal has been preferred by the State/appellant under Section 378 of the Code of Criminal Procedure, 1973 questioning the legality and propriety of the judgment dated 24/03/2004 passed by the Additional Sessions Judge, Sakti, District- Bilaspur (C.G.) in Sessions Trial No.462/2003, whereby, the respondent- Sudheram has been acquitted from the offence punishable under Sections 450 and 376(1) of IPC. PRASHANT DEWANGAN Digitally signed by PRASHANT DEWANGAN Date: 2025.03.05 11:06:16 +0530 2 2. Briefly stated, the case of the prosecution is, that on 16/11/2003 around 04:00 P.M., the prosecutrix, who was minor and dumb, was alone at home and, at that particular time, respondent/accused entered into her house and gagged her mouth and committed sexual intercourse forcefully with her. Further prosecution story is that the brother of the prosecutrix, namely, Setram, who entered suddenly into the house, had seen the accused/respondent committing sexual intercourse with his sister/prosecutrix and the respondent/accused, thereafter, left his sister and gave him Rs.500/- and, thereafter, fled away. It is alleged further that in the evening, when mother of the prosecutrix returned home, said Setram told her about the alleged incident committed by the respondent and the prosecutrix also narrated the incident to her, while indicating the same with signs. On account of the alleged incident, the prosecutrix informed the concerned Police Station on 17/11/2003 vide Ex.P/13 and on the same day, an FIR was lodged by her mother vide Ex.P/14 and based upon which, offences punishable under Sections 450 and 376 of IPC were registered against the respondent. 3. The prosecutrix was examined medically by Dr. Smt. Lalita Rajnala (PW-2), who vide her MLC Report (Ex.P/6), opined that the alleged sexual intercourse has been done with the prosecutrix and it was also opined that she is habitual for the sexual intercourse, and opined further that the age of the prosecutrix may be 16 to 17 years and for its confirmation has advised for radiological test. Based upon the alleged opinion, ossification test was conducted by Dr. R. Jitpure 3 (PW-13), who opined the age of the prosecutrix to be 18 to 19 years and opined further that it could either be 2 years more or less. 4. During the further investigation, the Transfer Certificate (Ex.P/31C) and the Dakhil Kharij Register (Ex.P/32C) was obtained from the concerned School, where the date of birth of the prosecutrix was shown to be 05/05/1989 and, the mark-sheet (Ex.P/17) of the prosecutrix of her 7th standard was also recovered, which also depicted her date of birth as such and, after completing the usual investigation, the charge-sheet was submitted before the Chief Judicial Magistrate, Sakti against the respondent with regard to the offence mentioned hereinabove in connection with Crime No.291/2003 and the matter was, thereafter, committed to the learned Additional Sessions Judge, Sakti, for trial where the charges have been framed against the respondent under Sections 450 and 376(1) of IPC, which was denied by him and claimed to be tried. 5. In order to bring home the guilt of the respondent, the prosecution has examined as many as 18 witnesses and has exhibited 32 documents, while the respondent has produced 1 witness and has exhibited 4 documents, in his defence. 6. The trial Court, after considering the evidence led by the parties, arrived at a conclusion that the alleged act of sexual intercourse was done with the consent of the prosecutrix, who was found to be major at the relevant point of time and, accordingly, he has been acquitted from the commission of the alleged offence and, being aggrieved, the instant appeal has been preferred. 7. Learned counsel appearing for the State/appellant submits 4 that the finding of the trial Court holding that the respondent is not the author of the alleged crime is, apparently contrary to the materials available on record, in as much as, the evidence led by the prosecution, particularly the statement of the prosecutrix, has not been scanned in its proper manner and, thereby, erred in acquitting the respondent as such from the commission of the alleged crime. 8. On the other hand, learned counsel appearing for the respondent has supported the impugned judgment of acquittal as passed by the trial Court. 9. We have heard learned counsel appearing for the parties and perused the entire record carefully. 10. From perusal of the record, it appears that the respondent has been charge-sheeted with regard to the offence punishable under Sections 450 and 376 (1) of IPC. According to the prosecution, the respondent on the fateful day, i.e. 16/11/2003, when the prosecutrix, who was dumb, was alone at home, entered into her house in the evening around 04:00 P.M. and committed sexual intercourse with her forcefully. In order to establish the fact regarding the minority of the prosecutrix, the Dakhil Kharij Register (Ex.P/32C), Transfer Certificate of the prosecutrix (Ex.P/31C) and the mark sheet (Ex.P/17) of her 7th standard was placed on record and, a bare perusal of those documents would show her date of birth as 05/05/1989 and, in order to disprove the said fact, the respondent has examined one Leelaram Kanwar (DW-1) and has produced the Declaration form (Ex.D/3C), issued from the Govt. Primary School, Basantpur, Tahsil- Sakti, wherein the date of birth of the prosecutrix 5 was recorded as 05/05/1986. Although, the date of birth of the prosecutrix has been mentioned in the alleged documents, marked as Ex. P/17, Ex.P/31C and Ex.P/32C, as 05/05/1989, but, Puranram Rathore (PW-15), who was the Teacher of the Govt. Primary School, Mohandikala, Tahsil- Sakti, District- Janjgir-Champa was examined to prove the said fact, however, it was stated by him in his cross- examination, paragraph 2, that he recorded the alleged date of birth on the basis of the Transfer Certificate (Ex.P/31C), where her date of birth has been mentioned as 05/05/1989. He, however, stated further that he is not aware whether the alleged date of birth of the prosecutrix was rightly recorded therein (transfer certificate) or not and, the authenticity of it could be ascertained from the concerned School, i.e. Govt. Primary School, Basantpur. As observed hereinabove, Leelaram Kanwar (DW-1), who was the Teacher of the Govt. Primary School, Basantpur, has stated in his evidence that the said Declaration form (Ex.D/3C), where the date of birth of the prosecutrix shown to be 05/05/1986, was recorded at the instance of her father. It, thus, appears that there is material disparity in the date of birth of the prosecutrix. That apart, when prosecutrix was examined by Dr. Smt. Lalita Rajnala (PW-2), it was adviced for radiological test for the confirmation of her age and the ossification test (Ex.P/30) was, accordingly conducted by Dr. R. Jitpure (PW-13), and in turn, he opined the age of the prosecutrix to be 18 to 19 years, which could be either 2 years more or less. It, thus, appears that the prosecutrix was found to be major at the relevant point of time when the alleged incident was occurred, and the trial Court has, 6 therefore, not committed any illegality in holding that she was major at the relevant point of time. The said finding is, accordingly, affirmed. 11. According to the statement of the prosecutrix (PW-4), it appears that on the fateful day and time, when she was alone at home, the respondent entered into her house and committed the alleged act forcefully, however, in her cross-examination, particularly paragraph 9, it was deposed that the alleged act was done with her consent and stated further that when the alleged illegal act was being done, no one was there at that particular time. Although, the brother of the prosecutrix, who was examined as PW-12, has stated that he has seen the alleged illegal act that was being committed by the respondent, however, his version is not found to be corroborated, in view of the statement of his sister/ prosecutrix. It also reveals from her (PW-4) testimony that, whatever she is describing regarding the alleged factum of intercourse, was at the instance of her mother and one Bisahu. In view therefore, it is difficult to hold that the alleged act was committed by the respondent without the consent of the prosecutrix and the trial Court has, therefore, not committed any illegality in acquitting the respondent from the commission of the alleged crime, so as to call for any interference in this appeal. 12. The appeal being devoid of merit is, accordingly, dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) JUDGE JUDGE Prashant