1 2025:CGHC:1026 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 594 of 2011 Ganesh Ram Chouhan, S/o Santram Chouhan, aged about 21 years, R/o Village Bonda, P.S. Sariya, District-Raigarh, C.G. ... Appellant versus State of Chhattisgarh, Through District Magistrate, District Raigarh (C.G.) ... Respondent For Appellant : Mr. Amit Sharma with Mr. Suman Ku. Kesary, Advocates For Respondent/State : Mr. HAPS Bhatia, Panel Lawyer Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board 07.01.2025 1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 26-07- 2011, passed by learned Additional Sessions Judge, Sarangarh, District Raigarh (C.G.), in Session Case No.27/2010, whereby the appellant-accused has been Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.01.10 11:30:41 +0530 2 convicted as under:- Conviction Sentence & Fine U/s 363 of the IPC R.I. for 4 year and fine of Rs.1,000/- in default thereof, 3 months’ additional RI 2. In this case, the appellant Ganesh Chauhan has been acquitted of the offence under Section 366 of the Indian Penal Code. Similarly, other co-accused Gopal Chauhan alias Bujhan, Meghnath Miri and Sarju Chauhan have been acquitted of Section 363 and Section 366 of the Indian Penal Code read with Section 34 of the Indian Penal Code. 3. The prosecution story, in brief, is as follows: on 16.04.2010 complainant Madhav Sahu (PW-8) lodged a report in Sariya Police Station that on 15.04.2010, around 9-10 PM, his mother Kamalabai informed him over the phone that her sister had left the house at around 7 PM that evening without informing anyone. Despite searching in the village and nearby areas, she was not found. A missing person report was registered, and an investigation was initiated. Thereafter, the prosecutrix and accused Ganesh Chauhan and others were brought to Sariya Police Station from Kharsia. Thereafter FIR (Exhibit P-19) was registered. A site map (Exhibit P-21) was prepared. The prosecutrix was medically examined by Dr. J. Tripathi (PW-5) and provided a report (Exhibit P-12). As per Article ‘A,’ a certificate of the Pre-Middle Certificate Examination 2008, and Article ‘B,’ a mark-sheet of the Government Girls’ Higher Secondary School, Barmkela, have been seized vide Exhibit P-2. During the investigation, the statements of witnesses were recorded. After completion of investigation, a charge sheet 3 was filed. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 13 witnesses, exhibited 32 documents. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. 5. After hearing the parties, the trial court passed the impugned judgment of conviction and order of sentence. Hence, this appeal. 6. Learned counsel for the appellant submitted that the date of birth of prosecutrix (PW-10) is not proved. No conclusive evidence regarding her age has been produced by the prosecution. To verify her age, her ossification test was also not conducted. Thus, as date of birth of prosecutrix (PW-10) was not proved, the prosecution has failed to prove that the prosecutrix was minor at the time of the incident. He further submitted that prosecutrix was consenting party though prosecution has failed to prove its case, the appellant may be acquitted of the charges leveled against him by setting aside the impugned judgment of conviction and order of sentence. 7. On the other hand, the learned counsel for the State submitted that the conclusion given by the trial court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed. 4 8. Heard learned counsel for the parties and perused the record with utmost circumspection. 9. The prosecutrix (PW-10) in her Court statement has stated that she had gone to Bilaspur with the appellant Ganesh Chauhan on medical advice as she was unwell and the policemen brought them back from Kharsia. On being declared hostile, she has stated that she and the appellant liked each other. She has also given the mobile number of the appellant. She has denied the suggestion that the appellant had eloped with her. She has also stated that her mother and brother did not want her to get married to the appellant. Later, she has also admitted that treatment for stomach ache is available in village Baramkela. She has also stated that she is ready to marry the appellant Ganesh Chauhan as they both love each other. She has also stated that she wants the appellant to be released in the case. She has also stated that she does not know on whose behest the case has been registered against the appellant. It is clear from her entire evidence that the prosecutrix was an consenting party. 10. For the offence under Section 363 of the Indian Penal Code, it is necessary for the prosecution to prove beyond doubt that the age of the prosecutrix was less than 18 years at the time of the incident. 11. The document related to the age of the prosecutrix, i.e., mark-sheets Articles-A and B, have been seized. According to which, the date of birth of the prosecutrix is 24/12/1994. If we calculate from that date, then the age of the proseuctrix at the time of the incident was around 15- 16 years. The question to be considered is whether the said 5 date of birth is conclusive evidence regarding the age of the prosecutrix? 12. It is noteworthy that the main witnesses regarding the birth date of any child are his/her parents. In any document, the birth date of the child is recorded only on the information of his/her parents. In this case, the father of the prosecutrix could not be examined. The mother of the prosecutrix (PW-1), who has been turned hostile, has not confirmed that the appellant had eloped with the prosecutrix. On being declared hostile and asked suggestive questions, she confirmed the prosecution case and on suggestion told that the date birth of the prosecutrix is recorded as 24/12/1994 in the school. It is not reflected from the statement of the mother (PW-1) that she remembers the birth date of the prosecutrix. The mother (PW-1) has stated that her eldest son is M. but she was unable to tell the date of birth of M. as well. She has only stated that her son M is about 24-25 years of age and his second child is the prosecutrix who is three years younger than her brother. 13. In such a situation, if we believe the statement of the mother (PW-1) who has given a statement about the age and date of birth by guesswork, then the age of the prosecutrix will be shown to be 21-22 years as she is 03 years younger. No competent authority who issued the mark-sheets, Articles A and B has been examined in the Court on behalf of the prosecution. In this way, when the ossification test of the prosecutrix has also not been done despite medical advice. In that situation, the source of date of birth of 24/12/1994 recorded in the mark-sheets is not clear. Therefore, it is not proved beyond doubt that the date 6 of birth of the prosecutrix is 24/12/1994 and at the time of the incident she was less than 18 years of age. In this situation, the benefit of doubt should go to the appellant and the impugned judgment is not worth sustaining. 14. Therefore, the appeal is allowed and the conviction and sentence in question is set aside and the appellant is acquitted of the charges leveled against him, giving him the benefit of doubt. 15. It is reported that the appellant is on bail. He need not to surrender in this case. His bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the Cr.P.C. 16. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) Judge Shubham