1 2025:CGHC:31666 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1726 of 2023 Akshya Kumar Singh S/o Ramashankar Singh Aged About 22 Years R/o Village- Banshipur (Dhumadand), Police Station Bhatgaon, Tahsil- Pratappur, District- Surajpur, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station- Bhatgaon, District- Surajpur, Chhattisgarh ... Respondent For Appellant : Mr. D.N. Prajapati, Advocate For Respondent/State : Mr. Sharad Mishra, Panel Lawyer SB- Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 09.07 .2025 1. This Criminal Appeal under Section 374(2) of CrPC has been filed by the appellant herein against impugned HARNEET KAUR Digitally signed by HARNEET KAUR Date: 2025.07.14 11:21:28 +0530 2 judgment of conviction and order of sentence dated 21/07/2023 (Annexure A-1) passed by learned Additional Sessions Judge, Pratappur, District Surajpur in Sessions Trial No. 01/2023 whereby he has been convicted and sentenced as mentioned below :- Conviction Sentence U/s 342 of IPC R.I. for 6 months with fine of Rs. 100/- and in default of payment of fine, additional R.I. for 2 months U/s 323 of IPC R.I. for 6 months with fine of Rs. 100/- and in default of payment of fine, additional R.I. for 2 months U/s 376(1) of IPC R.I. for 10 years with fine of Rs. 500/- and in default of payment of fine, additional R.I. for 3 years 2. Case of the prosecution, in brief, is that on 23/09/2022 at about 05:30 PM at Village Banshipur within the ambit of Police Station Bhatgaon, the appellant herein took the major victim to his house while she was returning home from college and confined her and committed maarpeet with her and thereafter, threatened to kill her and committed sexual intercourse with her and committed the aforesaid offences. 3 3. Further case of the prosecution is that on 23/09/2022 at about 05:30 PM, when the victim was returning home from college, the appellant stopped her and proposed her for marriage, however, since the victim refused to marry him, the appellant started arguing with her and forcefully took her to his house and confined her in a room and at night, after threatening her to kill, he committed sexual intercourse with her. The next day, victim found an opportunity and ran to her home and told about the incident to her mother (PW-2). Thereafter, on the basis of the written complaint (Ex. P/1) made by the victim, first information report (Ex. P/2) was registered against the appellant and after taking consent from the victim, she was subjected to medical examination which was conducted by Dr. Yogeshwari Sahu (PW-9) and as per the MLC report (Ex. P/8), no definite opinion has been given with regard to sexual assault. The slides prepared by the Doctor were sent for forensic examination on 25/09/2022 and it was received by the Laboratory on 14/10/2022 and the FSL report dated 17/11/2022 was found positive. After due investigation, the appellant was charge-sheeted for offence punishable under Sections 342, 323, 376 and 506 Part – II of IPC which was committed to the Court of Sessions for 4 trial in accordance with law. The appellant abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 9 witnesses and brought on record 21 documents. The statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence and neither brought any document on record. 5. Learned trial Court, after consideration of oral and documentary evidence available on record, proceeded to convict the appellant for offence punishable under Sections 342, 323 and 376 of IPC and sentenced him as aforesaid. 6. Mr. D.N. Prajapati, learned counsel for the appellant, would submit that victim (PW-1) is a major i.e. aged about 18 years and is a consenting party. Moreover, her evidence has not even been corroborated by medical evidence as except for abrasion, no other external or internal injury has been found as per the MLC report (Ex. P/8) and though the FSL report has been found positive but the same cannot be accepted as the slides were prepared by Dr. Yogeshwari Sahu (PW-9) and were seized on 25/09/2022 whereas it was received by the Forensic Laboratory on 14/10/2022 and no explanation in this regard has been offered by the 5 prosecution whether it was placed in safe custody in between the said period. Furthermore, the semen so found in the slides of the victim ought to have been matched from that of the appellant’s as held by the Supreme Court in the matter of Krishan Kumar Malik v. State of Haryana1, as such, the instant appeal be allowed and appellant be acquitted from the charges levelled against him. 7. Per contra, Mr. Sharad Mishra, learned State counsel, would submit that prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences, as such, the instant appeal is liable to be dismissed. 8. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The question that arises for consideration in the present appeal is, “whether the victim was a consenting party as on the date of offence, she was a major ?” 10. Victim (PW-1) has been examined before the Court and she has stated that on the date of offence, while she was returning home from college, appellant stopped her and 1 (2011) 7 SCC 130 6 proposed her for marriage but when she refused, he started abusing her and forcefully took her to his house and confined her in a room. She has further stated that at night appellant’s mother came along with food to feed her but she refused to eat and thereafter, appellant threatened to kill her and committed sexual intercourse with her. However, in the cross-examination, she has admitted that she and appellant used to converse on mobile phones and it was not known by their family members. Thus, the fact remains that appellant and victim knew each other and also conversed with each other on mobile phones and when appellant’s mother offered food to the victim, she did not make any cry for help and did not even asked his mother to release her and as such, it appears that she willfully stayed in the appellant’s house. On the date of the offence as well, when the appellant came to talk to her, victim stopped and conversed with him which shows that victim, who was a major on the date of offence, was a consenting party. 11. Furthermore, the statement of the victim (PW-1) is not at all supported by medical evidence as according to her MLC report (Ex. P/8) which was conducted by Dr. Yogeshwari Sahu (PW-9), one abrasion has been found on victim’s chest and one on her right hand and apart from that, there is no other internal or external injury on her body and Dr. 7 Yogeshwari Sahu (PW-9) has stated that no definite opinion can be given with regard to sexual assault committed with the victim. 12. As per prosecution’s case, the slides of the victim were sent for forensic examination and the FSL report dated 17/11/2022 has been found positive. However, from the perusal of the record, it appears that the slides were prepared by Dr. Yogeshwari Sahu (PW-9) and they were seized on 25/09/2022 and were received by the Forensic Laboratory on 14/10/2022, but there is no explanation on record with regard to the custody of the slides during the said period, therefore, the chance of fabrication cannot be ruled out. Moreover, as held by their Lordships of the Supreme Court in the matter of Krishan Kumar Malik (supra), the semen found in the slides seized from the victim have not been matched with that of the appellant’s to make it a foolproof case, as such, the prosecution must face the consequences. 13. In view of the aforesaid legal analysis, I am of the considered opinion that the trial Court has erred in convicting the appellant for the aforesaid offences. He is entitled for and is hereby acquitted. He be released forthwith, if his detention is not required in any other case. 8 14. Accordingly, this criminal appeal is allowed to the extent indicated herein-above. 15. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and also the copy of this judgment be sent to the concerned Superintendent of Jail where the appellant -Akshya Kumar Singh is lodged and suffering jail sentence. Sd/- (Sanjay K. Agrawal) Judge Harneet