1 2025:CGHC:3893-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 79 of 2013 Ku.Jyoti Dahariya, minor through her natural guardian father Basant Kumar Dahariya, son of Shri Feraram Dahariya Aged About 38 Years R/o. Vill. Sakri, P.S. Mandir Hasaud, Tah. And Distt. Raipur C.G. ... Appellant versus 1 - Rupesh Kumar Diwakar, aged about 20 years S/o Radheshyam Diwakar, Caste Satnami, R/o. Vill. Sakri (Baradera), P.S. Mandir Hasaur, Tah. And Distt. Raipur C.G. 2 – State of Chhattisgarh, Through the Station House Officer, Police Station- Mandir Hasaud, District : Raipur, C.G. ---- Respondents For Appellant : Mr.Yogendra Chaturvedi, Advocate For Respondent No.1. : None, despite service of notice. For State/Respondent No.2 : Mr. Ruhul Ameen, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board. 22.01.2025 Per Sanjay S. Agrawal, J. 1. This appeal has been preferred by the appellant/prosecutrix under Section 372 of the Code of Criminal Procedure, 1973, questioning the SUNITA GOSWAMI Digitally signed by SUNITA GOSWAMI Date: 2025.01.23 11:34:29 +0530 2 legality and propriety of the judgment dated 08.10.2013, passed by the Additional Sessions Judge(FTC), Raipur (CG) in Sessions Trial No.113/2013, whereby, respondent No.1-Rupesh Kumar Diwakar, has been acquitted from the offence punishable under Section 376 of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act, 2012’). 2. Briefly stated, the facts of the case are, that on 25.02.2013, the prosecutrix lodged a report with the Police Station, Mandir Hasaud, District Raipur to the effect that she was studying in Class 9th at Government Girls Higher Secondary School, Nardaha and on 22.02.2013, at about 11.00 AM, when she was going to her School, respondent No.1- Rupesh Kumar Diwakar met her on the way and called her to his sister’s house on the pretext of talking with regard to some issue. It is alleged further that when she reached his sister’s house, no one was, however there, at his house and respondent No.1 asked her to marry him and upon her refusal, he forcefully committed sexual intercourse with her. It is stated further that immediately, she returned to her house and narrated the whole incident to her father and thereafter, the matter was reported to the concerned Police Station on 25.02.2013 in connection with Crime No.37/2013. Based upon which, an FIR (Ex.P-1) was registered against the said respondent with regard to the offence punishable under Section 376 IPC and after recording the statement of the prosecutrix and others’, the concerned Investigating Officer has submitted the charge-sheet before the Judicial Magistrate First Class, Raipur against him for the commission of the 3 said offence under Section 376 IPC and, the matter was thereafter, committed to the learned Additional Sessions Judge (FTC), Raipur, who in turn, while considering the date of birth of the prosecutrix as shown in the Dakhil Kharij Register, framed the charges under Section 376 of IPC and also under Section 4 of the POCSO Act, 2012, which was denied by him and claimed to be tried. 3. 3. The prosecution has examined as many as 07 witnesses and has exhibited 19 documents in order to bring home the guilt of the said respondent, while one witness has been examined by him in his defence as DW-1. 4. The trial Court, after considering the evidence led by the prosecution, particularly, the statement of the prosecutrix and her father (PW-2) and also as the author of the Dhakil Kharij Register was not examined, held that the prosecutrix, who was found to be a consenting party was not the minor at that particular time. In consequence, the said respondent has been acquitted with regard to the alleged offence, and being aggrieved, the instant appeal has been preferred by the appellant/prosecutrix. 5. Learned counsel appearing for the appellant/prosecutrix submits that the findings recorded by the trial Court is apparently contrary to law, in as much, the evidence led by the prosecution, are not scanned in its proper manner and thereby, erred in acquitting the respondent No.1, as such. 6. Learned counsel appearing for the respondent No.2/State has 4 supported the contention of the counsel for the appellant, while no one appeared on behalf of the respondent No.1, though served. 7. We have heard learned counsel appearing for the parties and perused the entire record carefully. 8. From perusal of the record, it appears, as revealed from the First Information Report (Ex.P-1), lodged by the prosecutrix on 25.02.2013, that the alleged incident was occurred on 22.02.2013 when she was going to her School and, respondent No.1 met her on the way and on his insistence, she went to his house where he insisted to marry with her and upon her refusal, committed sexual intercourse forcefully. It appears from her (PW-1) testimony that on the next day of the alleged incident, i.e. on 23.02.2013, she along with her parents went to the Women Cell, Raipur for the settlement of the said incident and stated further that, she would not have lodged the report, if the matter would have been settled. It reveals further from her testimony that on the date of the occurrence of the alleged incident itself, she has informed to her father (PW-2), but, no report was immediately lodged either by him or by her (prosecutrix), and instead, upon the failure of the alleged compromise, they went to Mandir Hasaud and instead of lodging the report, went to village Sakri on 24.02.2013 and, thereafter on the next date, i.e. on 25.02.2013, the alleged report was lodged. It reveals further from her testimony that when a question was put to her as to why the delay has occurred for lodging the report, she however, failed to explain the same. No explanation, has, thus, been assigned as to why delay has been occurred in lodging the report regarding the 5 incident, which took place on 22.02.2013. 9. That apart, it appears further from her testimony, particularly Paragraph 16, that when the alleged sexual intercourse was made by the said respondent, she has, however, raised no objection, nor the Dr. Rajiya Khatun (PW-6), who medically examined her, has found any kind of external or internal injury on her body. It, thus, appears that the prosecutrix was a consenting party regarding the alleged incident, else, she would have not only lodged the alleged report immediately, but would have certainly resisted the alleged act of the said respondent. 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 as to give her consent on the date of the alleged incident, occurred on 22.02.2013 at noon. 11. In order to establish regarding the minority of the prosecutrix, a Dakhil Kharij Register (Ex.P-19-C) was submitted and the Headmaster of the Government Girls Higher Secondary School, Nardaha (Arang), Raipur, namely, Sukumar Thakre (PW-7) was examined, however, the said entry was neither made by him, nor was he in a position to say regarding the actual date of birth of the prosecutrix, as he was unable to say that whether the alleged entry in the said register was right or not. He deposed further that the actual date of birth of the prosecutrix could be ascertained either by the Kotwari Register or by way of the birth certificate. The alleged documents were, admittedly, not placed on record by the prosecution for the reasons best known to it. No reliance, 6 therefore, could be placed upon the alleged Register (Ex.P-19-C) for ascertaining the actual date of birth of the prosecutrix. Besides, the father of the prosecutrix, who was examined as PW-2, has stated specifically that he has not seen the Kortwari Register in order to know the date of birth of his daughter, nor was aware that how old was she when he got her admission in Class-I. It is to be seen further that even the radiological test was not conducted in order to ascertain the age of the prosecutrix. It, thus, appears that in order to establish the minority of the prosecutrix, the prosecution has failed to produce any cogent and reliable evidence. As such, it cannot be said that the prosecutrix was minor at that particular point of time, when the alleged incident was occurred. 12. In view of the aforesaid background, we do not find any infirmity in the judgment under appeal, acquitting the respondent No.1 from the commission of the alleged crime, so as to call for any interference in this appeal. 13. The appeal, is accordingly, dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) Judge Judge sunita