1 2025:CGHC:31492-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 73 of 2018 State Of Chhattisgarh Through The Incharge, Police Station Pipariya, District Kabirdham Chhattisgarh ... Appellant versus Drona @ Suman Tiwari S/o Manoj Tiwari, Aged About 19 Years R/o Village Pipariya, Police Station Pipariya, District Kabirdham Chhattisgarh, ---- Respondent For Appellant/State : Ms. Pragya Pandey, Dy. G.A. For Respondent : None, though served. Division Bench Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board. 09.07.2025 Per Sanjay S. Agrawal, J. 1. This appeal has been preferred by the appellant/State under Section 378 of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment dated 19.07.2017 passed by the Special SUNITA GOSWAMI Digitally signed by SUNITA GOSWAMI Date: 2025.07.09 17:56:02 +0530 2 Judge (under POCSO Act) (FTC), Kabirdham (CG) in Special Sessions Case No.153/2016, whereby, the respondent has been acquitted with regard to the offence punishable under Sections 363, 366 and 376 of IPC read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”). 2. Briefly stated, the case of the prosecution is, that an undated written report (Ex.P-3) was lodged by the father of the prosecutrix before the Police Station, Pipariya, District Kabirdham, stating therein, that on 12.09.2016 in the night, his daughter, who was 16 years old, has gone somewhere else along with ornaments worth Rs.19,000/- and cash amount of Rs.3,000/- and, has raised a doubt that the neighbour of him, namely, Suman Tiwari, the respondent herein, has abducted her while alluring her, as 4-5 days after her missing, a telephonic call was received by his son, namely, Rupesh Yadav from the respondent and his daughter, who informed that they are together and, thereafter he has not received any whereabouts of his daughter. Based upon the alleged information, an FIR (Ex.P-4) was registered by the concerned Police Station on 28.09.2016 against the respondent with regard to the offence punishable under Section 363 of IPC and, during the course of investigation, the prosecutrix and the respondent appeared themselves before the concerned Police Station on 03.10.2016 and after recording her statement (Ex.P-2) under Section 164 Cr.P.C., the undergarments of her and a vaginal slide were recovered from her vide seizure memo Ex.P-9 on 4.10.2016, while the undergarments and pubic hair of the 3 respondent, vide Ex..P-10 on the same day and were sent for chemical examination, but the same was found to be negative as revealed from the FSL report (Ex.P-19). The prosecutrix was examined medically by Dr. The prosecutrix was examined medically by Dr. Usha Suryavanshi, who has submitted her report (Ex.P-14/A), where the prosecutrix was found to be habitual in sexual intercourse, but no definite opinion was given regarding time of intercourse and for the determination of her age, she was referred to the Radiologist for test and, after completion of usual investigation, the charge-sheet was submitted before the Chief Judicial Magistrate, Kabirdham against the respondent for the offence punishable under Sections 363, 366 and 376 of IPC read with Sections 3 and 4 of the POCSO Act and, the matter was thereafter committed to the concerned trial Court, where the charge under Sections 363, 366 and 376 of IPC read with Section 6 of the POCSO Act have been framed against the respondent, which was denied by him and claimed to be tried. 3. In order to bring home the guilt of the respondent, the prosecution has examined as many as 9 witnesses and exhibited 19 documents, along with Dakhil Kharij Register, marked as Article ‘A-1/C’, while the respondent has exhibited one document and examined one witness in his defence. 4. The trial Court, after considering the evidence led by the parties, particularly, the statement of the prosecutrix (PW-1), held that she on her own, had gone with the respondent and as the prosecution has failed to establish the minority of her, acquitted the respondent, 4 accordingly, from the commission of the alleged offence mentioned herein-above and, being aggrieved, the instant appeal has been preferred by the appellant/State. 5. Learned counsel appearing for the appellant/State submits that the findings recorded by the trial Court holding that the respondent is not involved in connection with the alleged crime is, apparently contrary to the materials available on record, inasmuch as, the evidence led by the prosecution, particularly, the statement of the prosecutrix (PW-1) and the Dakhil Kharij Register, marked as Article ‘A-1/C’, have not been scanned in its proper manner and thereby, erred in acquitting him, as such. 6. No one appears on behalf of the respondent, despite service of notice of this appeal. 7. We have heard learned counsel appearing for the appellant/State and perused the entire record carefully. 8. From perusal of the record, it appears that the respondent has been charge-sheeted with regard to the offence punishable under Sections 363, 366 and 376 of IPC read with Section 6 of the POCSO Act on account of the incident occurred on 12.09.2016, when the prosecutrix has gone somewhere else without intimating any member of her family, owing to which, father of her has lodged the report (Ex.P-3), wherein, it was alleged by him that his daughter was abducted by the respondent while alluring her, who was minor, aged about 16 years at the relevant point of time. 5 9. In order to establish the alleged allegations, the prosecutrix was examined as PW-1 and it appears from her testimony that she received a telephonic call from the respondent at 10.30 pm on 12.09.2016 and while alluring her on the pretext of marriage, he took her to Raipur by Bus in the night at about 1.00 am and thereafter, they went to Ahmedabad by Train, where they stayed in a rented house for 15-20 days as husband and wife and during that period, he has committed sexual intercourse with her. It, thus, appears that the prosecutrix had gone with the respondent without any protest and was living with him, like husband and wife, in Ahmedabad for a considerable period of 15- 20 days and even no internal or external injury was found on her body, as revealed from the statement of Dr. Puja Nahar (PW-9). She was, thus, a consenting party else she would not have lived with him for such a considerable time, like husband and wife, or at least, would have lodged the report, instead of calling her brother- Rupesh Yadav after 4-5 days of leaving the house along with him. 10. In view of the above, the focal point of decision would be the age of the prosecutrix in order to determine as to whether she was a major to give her consent on the date of the occurrence of the alleged incident, which occurred on 12.09.2016. 11. According to the prosecution, her date of birth was 15.01.2001, but the father of her, who was examined as PW-2, was, however, unable to state the date of birth of his daughter. It appears further from his testimony, particularly, paragraphs 6 and 7 that the Teachers of the 6 concerned School have not recorded the date of birth of his daughter on their own, but the same was, however, found to be recorded by him on presumption that her date of birth is 15.01.2001. It, thus, appears that the father of the prosecutrix was not able to give the actual date of birth of his daughter. Therefore, the date of birth as mentioned in the Dakhil Kharij Register, marked as ‘A-1/C’ revealing her date of birth as 15.01.2001, cannot be relied upon. 12. It is to be seen further that when she was examined medically by Dr. Usha Suryavanshi, she referred her to the Radiologist for test in order to ascertain her age, but for the reasons best known to the prosecution, the same was not placed on record. In view of such circumstances, no cogent and reliable evidence has been placed in order to establish the fact that her date of birth was 15.01.2001 and was minor at the relevant point of time, i.e. 12.09.2016, so as to hold that she was minor on the said fateful day. 13. In view of the aforesaid background, the trial Court after considering the evidence led by the parties, has not committed any illegality in acquitting the respondent from the commission of the alleged offence, so as to call for any interference in this appeal. 14. The appeal being devoid of merit is, accordingly, dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) Judge Judge sunita 7