1 2025:CGHC:1944-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 727 of 2022 Pankaj Dewangan S/o Rajkumar Dewangan Aged About 28 Years R/o Village Medha, Ward No.15, Bazar Chowk, Dongargarh, District Rajnandgaon, Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Police Station Dongargarh, District Rajnandgaon, Chhattisgarh. ... Respondent For Appellant : Mr. Rishabh Bisen, Advocate. For Respondent(s) : Mr. Sakib Ahmed, Panel Lawyer Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 13/01/2025 1 The appellant has filed this appeal under Section 374(2) of the Criminal Procedure Code, 1973 (for short, the Cr.P.C.) questioning the impugned judgment of conviction and order of sentence dated 25.03.2022 passed by the learned Additional Sessions Judge, Dongargarh, District Rajnandgaon, in Sessions Trial No. 16/2020 by which the appellant has been convicted and sentenced as under: 2 Conviction under Section : Sentence 363 of Indian Penal Code (for short, the IPC) : Rigorous imprisonment (for short, RI) for 5 years with fine of Rs. 300/-. In default, 1 month RI more. 366 IPC : RI for 7 years with fine of Rs. 500/-. In default, 2 months RI more 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act) : RI for 20 years with fine of Rs. 500/-. In default, 2 months RI more. All the sentences to run concurrently. 2 The appellant/accused was charged for the offences under Sections 363, 366, 376 (2) (n) of the IPC and Section 6 of the POCSO Act alleging that on and before 07.11.2020 at 11:30 p.m., he lured the victim, who was a minor below 18 years of age, from her village to his newly constructed house in Village Medha under Police Station Dongargarh, District Rajnandgaon, from under the lawful guardianship of her maternal grandfather, without her consent by promising to marry her and abducted her with the intent of forcing or enticing the victim to engage in illicit sex without her consent or knowing it to be likely that she would be forced or enticed to engage in illicit sex, he took her on his motor cycle to his new house under construction in village Medha, where he kidnapped/ abducted her, enticed her on the pretext of marriage and raped her by having physical relations with her more than once and committed aggravated penetrative sexual assault on her. 3 The case of the prosecution, in brief, is that the victim's maternal grandfather (Nana) (PW-5) appeared at Dongargarh Police Station and lodged an oral complaint stating that he does farming. His elder daughter lived separately from her husband and works in a private job at Raipur. His granddaughter/victim has been living with him since childhood and 3 was studying in class 9th in a School at Dongargarh. Due to lock-down, she stayed at home. The victim's date of birth was 10.11.2003. On 07.11.2020 at 11:30 p.m., when his wife woke up to drink water, she saw that her granddaughter/victim who was sleeping next to her was not there. His wife woke him up from sleep and told him about the incident, after which they searched for the victim here and there. During the search, his granddaughter victim was found near the Krishna temple located near the Medha river. On being asked by his wife, the victim granddaughter told that Pankaj Devangan, a resident of Medha, had lured and kidnapped her and taken her to the village Medha. The appellant had taken her to his newly constructed house and raped her forcefully. Based on the above report of the complainant, a case was registered against the appellant Pankaj Dewangan for the offences under Sections 363, 366, 376 of the IPC and Sections 4 and 6 of the POCSO Act under Crime Number 507/2020 and investigation was done. 4 During the investigation, the statement of the victim and witnesses were recorded. The appellant was arrested, spot map was prepared, and after obtaining consent from the victim, she was medically examined. The appellant was also medically examined. The undergarments worn by the victim and the accused at the time of the incident and the motorcycle used in the incident were seized from the accused. The slide prepared by the Doctor from the private parts of the victim, the undergarments of the victim and the undergarments of the accused were sent to the State Forensic Science Laboratory, Raipur for chemical examination. After the remaining necessary investigation, charge sheet was filed before the learned trial Court against the accused for the offences under Sections 363, 366, 376 of the IPC and Sections 4, 6 of the POCSO Act. 4 5 Charges were framed by the learned trial Court on 23.02.2021 against the appellant for the offences under Sections 363, 366, 376(2)(n) of the IPC and Section 6 of the POCSO Act. The appellant abjured the guilt and prayed for trial. 6 In order to bring home the offence, the prosecution examined as many as 14 witnesses, namely the victim (PW-1), the victim's grandmother (PW- 2), the victim's maternal uncle (PW-3), the victim's mother (PW-4), the victim's maternal grandfather (PW-5), the Head Master in charge of the victim's school (PW-6), Patwari Prakash Chand Sahu (PW-7), Dr. Suchita Shrivastava (PW-8), Dr. S. Choudhary (PW-9), Head Constable Rohit Padoti (PW-10), Pappu Devangan (PW-11), Komal Sinha (PW- 12), Inspector Alexander Kiro (PW-13), Head Constable A.P. Sheela (PW-14) and exhibited as many as 25 Exhibits and one Article. In support of his case, the appellant had exhibited the statements of the victim recorded under Section 164 Cr.P.C as Exhibit D/1, police statement of Geeta Sahu (Exhibit D/4), Progress Report of the victim (Exhibit D/3) and the police statement of the victim (Exhibit D/4). 7 The statement of the convict/appellant was recorded under section 313 Cr.P.C wherein he has expressed his ignorance about most of the questions, however, some of them were denied as well. He stated that he was innocent and was falsely implicated. 8 The learned trial Court, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellant/ accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict. 9 Mr. Rishabh Bisen, learned counsel for the appellant submits that there are material omissions and contradictions in the statement made by the 5 victim before the Police as well as the Magistrate. The victim had roped the appellant in a false case as according to her own statement, on her 18th birthday, she had gone with the appellant on her own will and she was a major girl. When she was caught by her relatives, the appellant has been roped in a false case of rape when it is a case of love affair. The appellant and the victim are well known to each other for long time. The parents and guardians of the victim did not like the relationship of the victim with the appellant. Even the medical evidence does not support the case of the prosecution. There is no eye witness to the incident. There are no internal or external injuries on the body of the victim. The appellant is not having any criminal antecedents and there is no material on record to connect the appellant with the commission of the crime. In fact it is a case of love affair which has been tried to be given a colour of offence. Even the prosecution has failed to prove that the victim was below 18 years of age on the date of incident. 10 On the other hand, Mr. Sakib Ahmed, learned Panel Lawyer appearing for the State/respondent submits that the learned trial Court was fully justified in convicting and sentencing the convict/appellant as mentioned in the opening paragraph. There is ample evidence on record to hold the appellant guilty of the offence. The order passed by the learned trial Court needs no interference and the appeal filed by the convict/appellant be dismissed. 11 We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 12 The appellant/convict is alleged to have kidnapped the victim from the lawful custody of their guardian and thereafter committed forceful sexual intercourse with her. According to the prosecution, the victim was minor 6 on the date of incident and below the age of 18 years and was aged about 16 years, 11 months and 27 days. 13 The victim (PW-1) in her deposition before the trial Court has stated that she was acquainted with the appellant since 2019 and that the appellant had made physical relationship with her two-three times on the allurement of marriage. She has further admitted that she used to chat with him on mobile and also used to make video calls to her. She has admitted that when the appellant did not responded to her calls, she became frustrated and she had also told she had sent a voice message on mobile stating that she loved him. She also admitted that when the appellant used to be busy, she used to abuse him. She also admitted that whatever was told to the police in the Police Station, was told by her mother and not by her. 14 The maternal grandmother (Nani) (PW-2) of the victim stated that the date of incident was the birthday of the victim. When the victim went missing, they went in search of her where they found the victim near Medha River near Krishna Temple. She was crying sitting alone. She also admitted that she had admitted the victim in Class I when she was very small but she could not recall the date of birth. She further stated that the marriage of the victim had also taken place three-four months before. The mother of the victim (PW-4) has stated that the date of birth of the victim was 10.11.2003 and at the time of incident, she was studying in Class 9th. She further admitted that on the date of incident, the victim was aged about 17 years 4 months and 15 days and that she did not had the birth certificate of the victim. She also admitted that she did not had the mark-sheet of Class I or Class II of the victim. 15 The maternal grandfather (PW-5) of the victim stated that her wife had informed him that the appellant had earlier also committed rape upon the 7 victim one or two times before the date of incident. He admitted of having lodged the FIR (Exhibit P/6). He has further admitted that when they go for sleep, they lock the door from inside and when the victim had left the house, neither she had taken any permission nor had informed anyone. 16 PW-6 is the Head Master of the school where the victim used to study. He stated that in the Admission/Discharge register, the date of birth of the victim was written as 10.11.2003 and the date of leaving the school was11.08.2009. However, he admits that on what basis the said date of birth was recorded, was not mentioned in it. The victim had left the school in Class II and thereafter never took admission in that school. The Head Master further states that the Class IV mark-sheet related to their school but could not state as to how the said mark-sheet came to be issued to the victim. 17 Dr. Suchita Shrivastava is the Medical OfÏcer who had examined the victim. In her report (Exhibit P/2), she has stated that the victim was subjected to sexual intercourse as there was redness around labia minora and vaginal orifice. She had prepared two slides from vaginal discharged, sealed and handed over to the Constable for further chemical analysis. She had also advised for chemical examination of the underwear of the victim. Similarly, the appellant was also examined by Dr. S. Choudhary, Medical OfÏcer who in his report (Exhibit P/13) has opined that the appellant was capable of performing sexual intercourse. 18 In the FSL report (Exhibit P/24), human sperm has been found in the undergarment of the victim but not in the undergarment of the appellant or in the vaginal slides. 19 The learned trial Court has arrived at a finding that the victim was below the age of 18 years and was aged about 16 years 11 months and 27 8 days only on the basis of the date of birth entered in the Admission/Discharge register i.e. Article A-1C wherein the date of birth of the victim is recorded as 10.11.2003 and the victim was admitted in Class I on 27.06.2008. She left that school on 11.08.2009 when she was in Class II. Thereafter, the victim has never taken admission in that school but still there is a progress report card of Class IV of the same school wherein also the date of birth is recorded as 10.11.2003. Further, from the perusal of the deposition of the Incharge Head Master (PW-6), it is evident that he was not aware as to on what basis the said date of birth was mentioned and there is no birth certificate in this case as well. Even the prosecution has not attempted to get Radilogical tests conducted so as to ascertain the age of the victim. The maternal grand father of the victim has stated in his deposition that when they used to sleep, they used to lock the door with a separate lock from inside and when the victim left the house, she did not inform any one. The only inference that can be drawn from the said conduct of the victim is that the victim had gone to meet the appellant on her own sweet will. Even the victim in her deposition had admitted that when the appellant used to not reply or used to be busy, she used to become frustrated and used abuse him and had also sent voice message stating that she loved her. 20 From the conduct of the victim, it seems that she was having love affair with the appellant as she had been in contact with the appellant for a long period and also used to text chat and video chat with her. It is not a case where the appellant was bothering the victim on phone. Even if they had established physical relationship, that was consensual in nature. Though the maternal grandmother of the victim had got the victim admitted in the school in Class I, but she could not tell the exact date of birth of the 9 victim. Only the mother of the victim has stated about the date of birth of the victim. 21 In view of the above discussion, it can safely be held that the prosecution has failed to prove that the victim was a minor on the date of incident. 22 In Jarnail Singh v. State of Haryana {(2013) 7 SCC 263}, the Supreme Court, at paragarph 23 has observed as under: “23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, 10 if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.” 23 In view of the above discussion, this Court is of the considered opinion that the prosecution has failed to establish its case beyond reasonable doubt and the judgment passed by the learned trial Court needs interference and as such, the judgment of conviction and order of sentence dated 25.03.2022 is hereby set aside and the appellant/ convict is acquitted of the charges. 24 Resultantly, this appeal stands allowed. 25 The appellant/convict is reported to be in jail. He is directed to be released forthwith unless wanted in any other case. However, keeping in view the provision of Section 437-A of the Cr.P.C. {Section 481 of the BNSS}, the accused-appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- with two sureties in the like amount before the court concerned which shall be effective for a period of six months along with 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 thereof, shall appear before the Supreme Court. 26 Registry is directed to transmit the trial court record along with a copy of this order to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.01.16 10:47:56 +0530