1 2025:CGHC:33707 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 937 of 2007 Laxman Singh @ Munna, son of Shri Mahesh Singh, Aged About 20 Years, Resident of Village Kenwrapara, Police Station Kota, Distt. Bilaspur (CG) ... Appellant versus State Of Chhattisgarh Through Police Station Lormi Distt- Bilaspur (CG) ... Respondent For Appellant : Mr. Praveen Soni, Advocate. For Respondent : Ms. Nand Kumari Kashyap, PL Hon'ble Smt. Justice Rajani Dubey, J Judgment on Board 17-07-2025 Challenge in this appeal is to the legality and validity of the judgment of conviction and order of sentence dated 22.9.2007 passed by the II Additional Sessions Judge, FTC, Mungeli, Distt. Bilaspur in ST No. 246/2006 whereby the appellant stands convicted and sentenced as under: 2 Conviction Sentence Under Section 363 of IPC. RI for 01 year, pay a fine of Rs.250/- and in default thereof to suffer additional RI for 01 month. Under Section 366 of IPC. RI for 02 years, pay a fine of Rs.250/- and in default thereof to suffer additional RI for 01 month. Under Section 376 of IPC. RI for 07 years, pay a fine of Rs.500/- and in default thereof to suffer additional RI for 01 month. All the sentences were directed to run concurrently. 02. Case of the prosecution, in brief, is that on 25.3.2006 mother of the prosecutrix had sent the prosecutrix for begging and when she did not return by 3.00 pm, she enquired about her from the villagers and her relatives. During the course of search, she came to know that the appellant had enticed her away, so on 1.4.2006 she lodged a report at PS-Lormi. The prosecutrix was recovered from the possession of the appellant and then it was disclosed that the appellant eloped with her to Raipur and committed sexual intercourse with her. Both of them were got medically examined. The wearing apparels of the prosecutrix and the accused were seized. The vaginal slides of the prosecutrix were prepared. The seized articles were sent to FSL for chemical examination. The birth register from the concerned Kotwar was seized and statements of the witnesses were record. After completion of usual 3 investigation, charge sheet under Sections 363, 366 and 376 of IPC was filed against the appellant followed by framing of charges accordingly by learned trial Court which were abjured by him and he prayed for trial. 03. In order to substantiate its case the prosecution examined 18 witnesses. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 04. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence this appeal. 05. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the material available on record. There is unexplained delay of seven days in lodging the FIR as the alleged incident took place on 25.3.2006 whereas the FIR was lodged on 1.4.2006 which creates doubt on the prosecution case. From the statements under Section 164 of CrPC of the prosecutrix (PW-10) and her nephew (PW-12) it is clear that she was a consenting party to the act of the appellant, however, in the Court they made contradictory statement. He submits that though the alleged incident took place in a public place but no independent witness corroborated the prosecutrix 4 version. She did not complain to anybody at any point of time during travel from Lalpurkala upto Raipur or during her stay for a week in Raipur. In fact, they were having love affair and performed marriage in temple which is admitted by her in her evidence. Learned counsel for the appellant further argues that there is discrepancy in the Kotwari register of two villagers namely Lalpur and Lalpurkala regarding date of birth of the prosecutrix. Even otherwise, her date of birth has not been proved in accordance with law as the author who made entry in the said register regarding her date of birth has not been examined. There is no radiologist report or any other documentary evidence to prove that she was minor on the date of incident whereas mother of the prosecutrix (PW-11) states that the prosecutrix is 17-18 years old. Therefore, the impugned judgment is not legally sustainable and is liable to be set aside. 06. On the other hand, learned counsel for the State opposing the contention of the appellant submits that in view of oral and documentary evidence on record, the learned trial Court has rightly convicted and sentenced the appellant by the impugned judgment which calls for no interference by this Court. The present appeal being without any substance is liable to be dismissed. 07. Heard learned counsel for the parties and perused the material available on record. 5 08. It is clear from the record of learned trial Court that the appellant was charged under Sections 363, 366 & 376 of IPC and after appreciation of oral and documentary evidence, learned trial Court convicted and sentenced him under this section as mentioned in para 1 of this judgment. 09. PW-10 prosecutrix states that on the date of incident the appellant eloped with her to Raipur from Village-Singhanpuri where they stayed for 20 days and during this period, he made physical relation with her. However, thereafter he came back to his house leaving her there in Raipur. After two days thereafter, the appellant came to Raipur with his brother to take her back and they took her to Police Station – Lormi where she was handed over to her mother by the police. In para 15 she denies the suggestion that she eloped with one Raju on cycle and volunteers that she eloped with the appellant. She admits that she did not disclose this fact to anyone that the accused asked her for elopement. She states that it was day time when she eloped with the appellant and at that time there were many people around. She states that though she raised cries at that time and the accused was abusing her and this fact was disclosed to the police at the time of recording her statement (Ex.D/1) and if the same is not recorded, she cannot tell the reason. In para 21 she states that 2-3 days after reaching Raipur they went to Bajrang Bali Temple where the accused put vermilion on her hair-parting and they performed marriage 6 and 2-3 persons were present there. In para 22 she states that after marriage they had physical relations. 10. It is thus clear from the deposition of the prosecutrix and her diary statement Ex.D/1 that there are material contradictions in both these statements. 11. PW-7 Dr. Pramila Dau examined the prosecutrix on 20.4.2006 and did not find any injury on her body and opined that no definite opinion regarding rape can be given. Her test report and query report is Ex.P/4 which bears her signature from A to A part. 12. PW-12 Aghnu, a child witness, states that the accused/appellant forcibly took away the prosecutrix. He denies the statement to the police (Ex.D/2) that the prosecutrix instead of begging went with the appellant. There are also many contradiction and omission in the court statement of this witnesses as compared to his case diary statement (Ex.D/2). 13. From the statements of the prosecutrix (PW-10) and Aghnu (PW- 12) it is clear that the prosecutrix went with the accused/appellant on her own free will and as such, she was a consenting party. Now this Court has to see whether on the date of incident she was minor. As per prosecution, her date of birth is 5.5.1990 as recorded in the Kotwari register and the date of incident, as mentioned in the FIR (Ex.P/8), is 25.3.2006 and thus, she was held to be minor on the date of incident. 7 14. The prosecution seized Kotwari register (Ex.P/1) wherein date of birth of the prosecutrix is recorded as 5.5.1990. PW-5 Kejabai, Kotwar, states that the police seized the Kotwari register as per Ex.P/1. In para 5 she admits that as she is illiterate, the date of birth is not entered in the register by her but by her son. The prosecution did not file any other document to prove date of birth of the prosecutrix. Thus, looking to the statement of PW-5 Kejabai, Kotwar, it is clear that she is not author of the entry made in the Kotwari register. There is also no ossification test or radiologist report produced by the prosecution. As such, looking to the nature and quality of evidence on record, the prosecution has failed to prove beyond reasonable doubt that the prosecutrix was below 18 years of age on the date of incident. 15. From the FIR (Ex.P/8) it is seen that the incident took place on 25.3.2006 whereas the FIR was lodged on 1.4.2006 by mother of the prosecutrix and no satisfactory explanation for this delay has been given by the complainant. The medical report of the prosecutrix also does not support the prosecution case. 16. In view of what has been discussed above it is clear that the prosecutrix was not below 18 years of age on the date of incident and that she was a consenting party to the act of the appellant. Being so, the learned trial Court was not justified in holding him guilty under Sections 363, 366 and 376 of IPC and he deserves to be acquitted of all these charges by extending him benefit of doubt. 8 17. In the result, the appeal is allowed. The impugned judgment of learned trial Court is hereby set aside. The appellant is acquitted of the charges under Sections 363, 366 & 376 of IPC. The appellant is reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellant is also directed to furnish a personal bond for a sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon'ble Supreme Court. 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/ (Rajani Dubey) Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2025.07.21 16:25:50 +0530