1 2025:CGHC:33984 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.78 of 2005 Santu,S/o Karan Singh, aged about 23 years, Labourer, R/o Village Pharaphod, PS. Devari, District Durg (CG) ... Appellant (In Jail) versus State Of Chhattisgarh through SHO, Police Station Devari, District Durg (CG) ... Respondent For Appellant : Shri Gaurav Prasad on behalf of Smt Meena Shastri, Advocates. For Respondent/State : Shri SK Puriya, PL. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 18.07.2025 1. This Appeal is directed against the judgment of conviction and order of sentence dated 27.01.2005 passed by the Additional Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.07.21 11:21:49 +0530 2 Sessions Judge, Balod, District Durg in Sessions Trial No.25/2004 convicting the Appellant under Section 376(1) IPC and sentencing him to undergo RI for 7 years and fine of Rs.1,000/- with usual default stipulation. 2. Factual matrix leading to the conviction of the Appellant is that on 29.09.2003, prosecutrix ‘B’ (PW-1), who is pursuing her studies at High School at the same village where she resides, after reaching the school, realized that she has forgotten her math copy at home and therefore, she left her bag with her friend ‘V’ (PW-2) and started back to her home for getting the said copy. It is alleged that en route, she met co-accused Roman who told her that her father ‘D’ (PW-3) is calling her to nalipar and therefore, she accompanied him on his bicycle to nalipar and on reaching the said spot, she found that her father ‘D’ (PW-3) was not present there and other accused persons encircled her over there and forced her to go to village Singarpur along with the present Appellant. It is further alleged that when she denied, the accused persons threatened her and thereafter, the present Appellant forcefully made her sit on his bicycle and took her to village Singarpur to his sister’s house where, the present Appellant and his brother-in-law (jija) co-accused Chandrabhushan locked her up in a room and in the night, she slept along with the sister of the Appellant. It is further alleged that on the next morning, the present Appellant and 3 his brother-in-law i.e. co-accused Chandrabhushan took her to village Bijabhata on foot wherefrom, she was taken to Durg in a truck and from there to village Ninwa, District Bemetara to the house of the brother of the present Appellant namely Devanand, co-accused. It is further alleged that at about 12 o’ clock in the night, the Appellant came to the prosecutrix’s room and made forceful physical relationship with her and in the morning at about 4 o’ clock, somehow, the prosecutrix managed to come out of the said house and taken lift in a truck which dropped her at Durg. Thereafter, she reached the house of her aunt (badi ma) ‘B’ at Bhilai on 05.10.2003 and called her father ‘D’ (PW-3) and FIR (Ex.P-2) was lodged. The prosecutrix was subject to medical examination (Ex.P-17) by Dr. Vinita Komiya (PW-10). During examination, slide was prepared, underwear and salwar of the prosecutrix were seized and sent to FSL examination. Vide FSL report (Ex.P-29), human sperm was found present on the said articles. 3. After completion of investigation, charge sheet has been filed. In order to prove its case, the prosecution has examined as many as 14 witnesses and exhibited 29 documents (Ex.P-1 to P- 29). Article ‘A’ is the mark sheet of the prosecutrix wherein, her date of birth has been recorded as 29.11.1988 and copy of the same is Article-’B’. Statement of the accused/Appellant was also 4 recorded under Section 313 Cr.P.C in which, he denied the charges levelled against him and pleaded innocence and in his defence, has examined 2 witnesses i.e. Mehtak Verma (DW-1) and Punya Das (DW-2) of village Ninwa. 4. After evaluating the evidence, the trial Court, vide its impugned judgment, acquitted all the accused persons of the charge under Sections 363/34 and 366/34 IPC and held that the prosecution has failed to prove that the prosecutrix was minor on the date of incident, however, convicted the Appellant as mentioned above. Hence this Appeal. 5. Learned Counsel for the Appellant submits that the trial Court has erred in convicting the Appellant as prosecutrix ‘B’ (PW-1) was in love affair with the Appellant and she has also written various love letters (Ex.D-1 to D-9) and accompanied the Appellant for about 5 days to different villages and also met various other family members residing therein but has neither protested nor complained to anybody, therefore, the trial Court has wrongly held that the prosecutrix is not a consenting party. Her further submits that even the defence witness i.e. Mehtak Verma (DW-1) and Punya Das (DW-2) have categorically stated that when father ‘D’ (PW-3) of prosecutrix ‘B’ (PW-1) reached village Ninwa, prosecutrix ‘B’ (PW- 1) did not agree to go with him and prays to allow the Appeal. 5 6. Contrastingly, learned State Counsel supported the impugned judgment and submitted that the finding recorded by the trial Court is well merited and does not call for any interference. 7. Heard learned Counsel for the parties and perused the material available on record including the judgment impugned with utmost circumspection. 8. Prosecutrix ‘B’ (PW-1) has deposed that on the date of incident i.e. 29.09.2003 at about 10.30 am, she had gone to her school and thereafter, left her bag with her friend ‘V’ (PW-2) by telling her that she forgot her math copy at home and therefore, going back to get the same. She has further deposed that while she was on her way back to home, co-accused Roman, on a false pretext that her father ‘D’ (PW-3) is calling her, took her on his bicycle to the present Appellant and thereafter, the present Appellant took her to nalipar where, she found that her father ‘D’ (PW-3) was not present but other co-accused were present and from there, the Appellant took her to village Singarpur on his bicycle to his sister’s house where she stayed for one night and thereafter, on foot, they went to village Bijabhata from where, they took lift in a truck to Durg and thereafter, reached village Ninwa where brother of the Appellant i.e. co-accused Devanand resides. Prosecutrix ‘B’ (PW-1) has further deposed that on 04.10.2003, at 6 12 o’clock in the night, the Appellant came to her room and made forceful physical relationship with her. 9. In the cross-examination, prosecutrix ‘B’ (PW-1) categorically admits the fact that the sister of the present Appellant, his brother- in-law and co-accused Devanand were also sleeping in another room but during the incident, she was not making hue and cry for any help. It is pertinent here to note that she has visited many places with the present Appellant on bicycle and truck as also on foot and also stayed in different houses but did not make any complaint to anyone at village Ninwa. Mehtak Verma (DW-1) and Punya Das (DW-2), residents of village Ninwa have stated the fact that when father of the prosecutrix ‘D’ (PW-3) reached the said village for taking his daughter with him, she was not willing to go along with him. Mehtak Verma (DW-1) has further deposed that for such denial of the victim, her father ‘D’ (PW-3) beaten her up and took her to the house of Anjor Baiga for exorcism. The present Appellant has filed various love letters (Ex.D-1 to Ex.9) though the prosecutrix has refused that she has not written any such letters. 10. Looking to the aforesaid evidence and the attending circumstances, it cannot be held that prosecutrix ‘B’ (PW-1) is not a consenting party as her conduct itself shows that she has very willingly accompanied the present Appellant to various places for about 5 days. Even Dr. Vinita Komiya (PW-10) who has examined 7 prosecutrix ‘B’ (PW-1) (Ex.P-17) has not found any external or internal injury on her body although in FSL report, which was positive (Ex.P-29), human sperm was found present. 11. In view of the foregoing discussion and the finding recorded by the trial Court that the prosecution has failed to prove that on the date of incident, prosecutrix ‘B’ (PW-1) was not aged 18 years, this Court is of the considered opinion that the prosecutrix is a consenting party. Consequently, the conviction and sentence imposed upon the Appellant under Section 376(1) IPC is set-aside and he is acquitted of the said charge. The Appellant is reported to be on bail. He need not surrender. The bail bonds furnished by the Appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC. 12. Consequently, the instant Appeal is Allowed. Sd/- (Deepak Kumar Tiwari) Judge Priya