1 2025:CGHC:16874-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 446 of 2016 1 - Rajkumar Sahu S/o Hemchand Sahu Aged About 22 Years R/o Village Taralim, Post Lejwara, Police Station Berla, Civil And Rev. Distt. Bemetara Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through Police Station Berla, District Bemetara Chhattisgarh. ... Respondent(s) For Appellant : Shri Manoj Paranjpe, Advocate. For Respondent(s) : Shri Rahul Tamaskar, Govt. Advocate with Shri HAPS Bhatia, Panel Lawyer. Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment on Board (11/04/2025) Sanjay K. Agrawal, J 1. This Criminal Appeal preferred by the accused/appellant under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and sentence dated 22.3.2016 passed by the KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.04.15 18:29:04 +0530 2 Special Judge, Bemetara, District Bemetara in Special Case No.07/2014 by which the appellant has been convicted and sentenced as under:- Conviction Sentence Under Section 366 of the IPC RI for 7 years with a fine of Rs.500/-, in default of payment of fine to further undergo RI for 6 months Under Section 5 (l) & 6 of the Protection of Children from Sexual Offences Act, 2012 RI for life with a fine of Rs.500/- in default of payment of fine to further undergo RI for 6 months. Under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 RI for life with a fine of Rs.500/- in default of payment of fine to further undergo RI for 6 months. 2. Case of the prosecution, in brief, is that on 13.8.2014, at village Taraleem, PS Berla, the appellant has abducted the minor victim, knowing fully well that she belongs to the ST category and committed penetrative sexual assault and thereby committed the offence. Thereafter FIR (Ex.-P/10) was lodged by PW-3 (Victim) on 27.8.2014. The victim was subjected to medical examination by by Dr. Pushpa Janbandhu (PW-8) and report was prepared vide Ex.P/13. In the said medical report, no external or internal injury was noticed. Hymen was ruptured. No bleeding was found. Two vaginal slides were prepared and were sent to the FSL for examination. The underwear of the victim and the appellant were seized vide Ex.-P/2 & P/3 respectively and the same were sent to 3 the FSL for examination. As per the FSL report, Semen was not found on Articles ‘A’, B’ & ‘C’. Birth certificate of the victim was seized vide Article A-1. 3. After due investigation, the appellant was charge-sheeted for the aforesaid offence. The appellants / accused abjured his guilt and claimed to be tried. 4. In order to bring home the offence, the prosecution has examined as many as 16 witnesses and exhibited 27 documents. The appellant in support of his case has neither examined any witness nor exhibited any document. 5. The learned Special Judge after appreciating the oral and documentary evidence available on record, convicted the appellants / accused persons for the offences as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. 6. Learned counsel for the appellant submits that the trial Court has not appreciated the fact that the victim/prosecutrix was a consenting party, inasmuch as the prosecutrix has left the village on 13.8.2014 and after 2 days, she called her brother-in-law and the FIR has been lodged belatedly. He further submits that to prove the offence under Section 366 of the IPC, age of the prosecutrix is important. The trial Court has failed to appreciate that no finding in respect of the 4 age of the prosecutrix can be recorded in the absence of any material or evidence on record to that effect. As per the statement of the prosecutrix, at para-15, her date of birth is 23.3.1999, whereas Article A-1 has been produced, according to which, date of birth of the prosecutrix is 17.4.1998 and the name of father has been shown as late ‘M’, which itself creates suspicion. The father of the prosecutrix in his evidence has stated that the prosecutrix is aged about 18-19 years, and the birth certificate i.e. Article A-1 has not been proved in accordance with law. 7. Learned counsel for the appellant further submits that though in the present case Article A-1 was produced before the trial Court, however, admissibility of the document is one thing and its probative value is another thing and these two aspects cannot be clubbed. It is well settled that even if the entry is made in the official record by the concerned official in discharge of his official duty, it may have weight, but still requires corroboration by the person on whose information the entry has been made and whether the said entry was exhibited and proved. In the present case, neither the author of the document has been examined nor any school register or kotwari register has been produced. In the absence of any material on record, it cannot be said that the prosecutrix was minor. The prosecutrix was a consenting party, she has left the 5 house voluntarily and it was the prosecutrix who informed her parents that she is residing with the appellant. 8. Learned counsel for the appellant further submits that there is no evidence on record to show that the prosecutrix belongs to SC category and the ingredients of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are missing. Lastly he submits that conviction of the appellant under Section 5 (l) of the Protection of Children from Sexual Offences Act, 2012 is also bad in law, as there is no evidence of sexual assault on record. The prosecutrix was a consenting party, she was voluntarily staying with the appellant and no force was used against her. therefore, the conviction of the appellant is bad in law and he deserves to be acquitted and the appeal deserves to be allowed. 9. On the other hand, learned State counsel supports the impugned judgment and submits that prosecution has been able to bring home the charge against the appellant beyond reasonable doubt. As such, the trial Court has rightly convicted the appellant herein and the instant Appeal deserves to be dismissed. 10.We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. Age of the Prosecutrix: 6 11. At the first instance, in order to consider the age of the Prosecutrix (PW-3), we will examine the evidence brought on record by the prosecution to ascertain the fact that she was above 18 years of age on the date of the incident. In this regard, mother of the prosecutrix has been examined as PW-2. She has stated in the examination-in- chief that the prosecutrix is aged about 16 years. However, in cross- examination, she has stated that she is unable to tell the date of birth of the prosecutrix and further stated that she is disclosing the age only on the basis of guessing. However, the prosecution has produced Article A-1 in which the date of birth of the prosecutrix is mentioned as 17.4.1998, but her father’s name is mentioned as ‘M’, whereas the name of father of the prosecutrix is ‘R’, who was examined by the trial Court. Thus there is difference in the name of father of the prosecutrix. The trial Court has relied upon the Article A-1 and thereby committed grave error by holding that on the date of the incident the prosecutrix was less than 18 years of age, for the reason that the prosecutrix has stated in her evidence that her date of birth is 23.3.1999 whereas she has admitted her signatures on Article A-1, according to which, her date of birth is 17.4.1998. Hence, we find material discrepancy so far as the age of the prosecutrix is concerned. Moreover, from the statement of her mother (PW-2), who also seems to be unconfirmed about the age of the Prosecutrix, the actual date of birth of the Prosecutrix is not 7 established. No other evidences like - Kotwari register, birth certificate issued by the Municipal Corporation of Municipality or Panchayat, matriculation or equivalent certificate of concerned examination Board or ossification report have been produced by the prosecution to prove the actual age of the Prosecutrix. As such, regarding the age of the Prosecutrix (PW-3) or her date of birth, the prosecution has not been able to produce any clinching and legally admissible evidence so as to hold that on the date of incident she was a minor girl below 18 years of age and it would not be safe to hold that the Prosecutrix was minor below 18 years of age on the date of incident. 12. So far as medical evidence is concerned, the prosecutrix was medically examined by (PW-8) Dr. Pushpa Janbandhu and she gave her report (Ex.-P/13), according to which, no external or internal injury was noticed. Hymen was ruptured but no other internal injuries were noticed and no definite opinion could be given about recent sexual assault. Thus the said medical evidence is of no help to the prosecution. Moreover, the vaginal slides and the underwear of the prosecutrix and the appellant, which were sent to the FSL for examination also do not contain any human sperm, vide FSL report (Ex.-P/27). Hence the FSL report is also of no help to the prosecution. 8 13. Case of the prosecution is based on the testimony of PW-1 & PW-4, on the basis of which the trial Court has held in para-22 that the prosecutrix was a consenting party. On close scrutiny of the evidence on record, it appears that on the date of the incident i.e. 13.8.2014 at 12 noon, when the prosecutrix was moving towards the road, the appellant met her on the way and said that he would marry her. The appellant is electric mechanic by profession and he earns good money. On such allurement, the prosecutrix accompanied the appellant. The appellant firstly took her to Bhilai from where they went to Durg Station in an auto-rickshaw. Next day at about 12 noon both of them proceeded for Delhi and from Delhi they left for Rajasthan. From the conduct of the prosecutrix, it appears that she accompanied the appellant on her own and she neither raised any hue and cry nor made any complaint against the appellant. The prosecutrix was recovered on 27.8.2014. 14.On the basis of aforesaid discussion, we are of the opinion that the prosecution has not been able to establish that the prosecutrix was less than 18 years of age on the date of the incident. Further, in the absence of any medical evidence, it is difficult to hold that the prosecutrix was subjected to sexual intercourse against her wishes and the prosecution has failed to prove the offence against the appellant beyond reasonable doubt. 9 15.In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant under Section 366 of the IPC, Section 5 (l) & 6 of the POCSO Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are set aside and he is acquitted of the said charges on the basis of benefit of doubt. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC. 16.Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Barve