1 2025:CGHC:43198-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 48 of 2017 Ku. Yashoda Sahu, D/o Narbade, Aged About 17 Years, Through Natural Guardian (Mother) Dharmin Bai Sahu, W/o Narbade, Aged About 55 Years, R/o Village Sonpuri, Police Chowki Dasrangpur, Police Station Pipariya, District Kabirdham, Chhattisgarh. ... Appellant versus 1 - Dilip Sinha, S/o Gopal Sinha, Aged About 19 Years, R/o Village Sonpuri, Police Chowki Dasrangpur, Police Station Pipariya, District Kabirdham, Chhattisgarh. 2 - State Of Chhattisgarh, Through District Magistrate Kabirdham, District Kabirdham, Chhattisgarh. ... Respondents For Appellant : Mr. Rahul Pathak, Advocate appears on behalf of Mr. Awadh Tripathi, Advocate For Respondent No.1 : Ms. Shital Soni, Advocate For State/Respondent No.2 : Mr. Ruhul Ameen, Panel Lawyer D.B:-Hon’ble Shri Justice Sanjay S. Agrawal, Hon’ble Shri Justice Radhakishan Agrawal Judgment on Board Per Sanjay S. Agrawal, J. 26/08/2025 1. This appeal has been preferred by the prosecutrix under Section 372 of Code of Criminal Procedure, 1973, questioning the legality and PRASHANT DEWANGAN Digitally signed by PRASHANT DEWANGAN Date: 2025.08.28 10:23:22 +0530 2 propriety of the judgment dated 21/10/2016, passed by Special Judge, under Protection of Children from Sexual Offences, Act, 2012, F.T.C., Kabirdham (C.G.) in Special Sessions Case No.83/2016, whereby, the respondent No.1- Dilip Sinha has been acquitted with regard to the offence punishable under Sections 363, 366 and 376 of IPC and, in alternatively under Section 6 of the Protection of Children from Sexual Offences, Act, 2012 (hereinafter referred to as “the POCSO Act”). 2. According to the prosecution, the respondent No.1- Dilip Sinha, on 07/04/2016, have kidnapped the prosecutrix, while alluring her on the pretext of marriage and took her to Raigarh from her village- Sonpuri and during the patrolling, the Railway Police caught them and produced the prosecutrix before the Child Welfare Committee, Raigarh, where, her statement was recorded by the said committee and the member of it, namely, Dubiy Shyam Khadiya lodged the report (Ex.P/5) on 09/04/2016 before the Police Station G.R.P., Raigarh, stating therein that, the said respondent while alluring her on the pretext of marriage took her to Raigarh on 07/04/2016 from Raipur by train, where, the alleged physical relations were made twice with their consent. After receiving the said information, an FIR (Ex.P/6) was registered against the said respondent for the offence punishable under Section 363 of IPC and during investigation, she was examined medically by Dr. Swapnil Wilson (PW-8), who vide her report Ex.P/16 unable to opined regarding recent sexual intercourse upon her and adviced for radiological test, in order to determine her age. She was then examined by radiologist, namely, Dr. G.K. Suryavanshi (PW-9) on 01/06/2016, where, vide report Ex.P/22, her average age was found to 3 be 16 years old. 3. After completing the due investigation, the charge-sheet was submitted and the concerned trial Court, based upon the materials available on record, has framed the charges against the respondent No.1- Dilip Sinha under Sections 363, 366 and 376 of IPC and, in alternatively under Section 6 of the POCSO Act, which was denied by him and claim to be tried. 4. In order to establish the alleged allegation, the prosecutrix was examined as PW-10 and from her statement, it appears that, on 07/04/2016, she and the respondent No.1- Dilip Sinha went to Raigarh by train and, it was admitted by her that he has made the physical relation with her when a query was made. Further of her testimony, particularly paragraph 6 in her cross-examination, it appears that she was not taken away by him (Dilip Sinha), while alluring her on the pretext of marriage and, similar was the version revealed from para 11 of her testimony. It, thus, appears that, the alleged physical relations were made between them sometimes after 07/04/2016 with their consent. 5. 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 occurrence of the alleged incident. 6. From perusal of her statement (Ex.P/24), recorded under Section 164 of Cr.P.C., as well as, Dakhil Khariz Register (Article A/2), it appears that her date of birth was shown to be 26/04/2000, whereas, 4 her date of birth was shown to be 26/10/2000 in her Birth Register (Article A/1) issued by Govt. Primary School, Sonpuri. There is, thus, disparity regarding her date of birth as mentioned therein. That, apart, the father of her, who was examined as PW-2, has however, recorded her date of birth at the time of her admission based upon the presumption. No specific date of birth has, thus, revealed from their testimonies. It is to be seen further that she was adviced for radiological test in order to determine her age when she was examined medically by Dr. Swapnil Wilson (PW-8) and, Dr. G.K. Suryavanshi (PW-9), the radiologist in his report (Ex.P/22) has found her average age to be 16 years, but in cross-examination at para 10, it was stated that her age could be 18 years based upon the symptoms revealed from the X-Ray report (Ex.P/22). 7. In view of the aforesaid circumstances, the prosecution has, thus, failed to establish the fact that she was minor at the relevant point of time and, the trial Court after taking note of these materials has rightly arrived at a conclusion that she was not minor at the relevant point of time, while acquitting the said respondent from the commission of the alleged crime. 8. In view of the aforesaid background, we do not find any substance in this appeal. The appeal, being devoid of merit is, accordingly, dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) JUDGE JUDGE Prashant