1 2025:CGHC:2952 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1584 of 2021 1 - Vichitra Shah Mandavi @ Vijay @ Aeda S/o Late Daulat Mandavi Aged About 31 Years R/o Village Chilamgota, Police Station Mohla, District Rajnandgaon, Chhattisgarh, District : Rajnandgaon, Chhattisgarh ---Applicant(s) versus 1 - State Of Chhattisgarh Through Police Station Rajhara, District Balod, Chhattisgarh, District : Balod, Chhattisgarh ---- Respondent ------------------------------------------------------------------------------------------ For the Appellant : Mr. Varun Sharma, Advocate. For the State/Respondent : Mr. Karan Baharani, P.L. ----------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 16.01.2025 1. With the consent of the parties, the present matter is heard finally. 2. This criminal appeal has been preferred by the appellant against the judgment of conviction and order of sentence dated 12.11.2020(Annexure A/1), passed in Special Session Case No. 78/2019 by the learned Special Judge (POCSO Act) District Balod, (C.G.),whereby the appellant has been convicted and sentenced as follows:- 2 Convicted under Sections Sentenced to 363 of IPC R.I. for 1 year with fine of Rs. 100/- in default of payment of which, additional R.I. for one month 366 of IPC R.I. for 3 years with fine of Rs. 100/- in default of payment of which, additional R.I. for one month 5(L)/6 of the POCSO Act R.I. for 10 years with fine of Rs. 2000/- in default of payment of which, additional R.I. for two months 3. The prosecution case, in brief, is this that a report was lodged by the father of prosecutrix on 10.01.2019 at Police Station Rajhara District Balod submitting that on 09.01.2019 at about 8:00 am, her minor girl who is aged about 15 years left the home of her aunt saying that she is leaving for school but did not return. He has searched every relatives and neighbor but she found missing. Based upon the said report, FIR bearing crime No. 05/2019 (Ex.P/24) was registered against the appellant and on completion of investigation, final report/charge sheet was filed against appellant for the offence under Sections 363, 366 ,376(2)(>)(<) of Indian Penal Code and Section 5(L)/6 of POCSO Act. Vide order dated 12.11.2021, the learned Special Judge convicted the appellant under Section 363& 366 of IPC and 5(L)/6 of POCSO Act. 4. Prosecution in order to prove its case examined total 9 witnesses. 3 Statements of appellant (accused) was also recorded under Section 313 of CrPC in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. However, no defence witness has been examined in his defence. 5. After hearing counsel for the parties and appreciating evidence available on record, the trial Court vide impugned judgment dated 12.11.2020 convicted and sentenced the accused/appellant in the manner as described above of this judgment. Hence this appeal. 6. Learned counsel for the appellant submits that as per prosecution case, the age of the prosecutrix was 15 years at the time of alleged incident, but no authentic documentary proof was filed in order to show that the prosecutrix was a minor girl on the alleged date. The date of birth mentioned as 25.11.2003 in Dhakhil Kharij Panji (Ex.P- 12) cannot be said to be conclusive. 7. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the evidence available on record. There was love affair between appellant and prosecutrix, she went alongwith appellant of her own will and no alarm was raised by her while she roamed with appellant from one place to another. Prosecutrix resided with appellant about two three months and as per the statement of the prosecutrix, both of them established physical relationship with their own will. 8. Learned counsel further submits that trial Court convicted the appellant relied upon the statement of PW-1/victim, but her statement is not reliable as there are many contradictions, omissions 4 and development in her statement, which was not considered properly by the learned trial court. From the statements of the prosecutrix recorded before the police, Magistrate and the Court it reflects that she is not a reliable witness and appears to be a consenting party to the act of appellant. Trial Court also ignored the fact that nothing has been found in the medical report of victim though there is allegation that appellant has established forceful physical relationship with her on many occasion. In fact, there was love affair between the appellant and the prosecutrix and therefore, she willingly went with his place and had physical relation with him of her own free will. Medical evidence also shows that there was no sign of forcible sexual intercourse on the body of the prosecutrix. The prosecution has failed to prove its case beyond all reasonable doubt against the appellant and therefore, the appellant deserves to be acquitted of all the charges 9. On the other hand, learned counsel for the State supporting the impugned judgment and submits that the prosecutrix was a minor girl aged about 15 years, 1 month and 14 days on the date of incident and this fact has been duly proved by the prosecution by adducing oral and documentary evidence i.e. Dakhil Kharij Register(Ex.P-12) and Author of the Dakhil Kharij Register has been examined by the prosecution. Further, the act committed by the appellant makes him liable for conviction under Section 363, 366 of IPC and 5(l)/6 of POCSO Act. Being so, the impugned judgment is strictly in accordance with law and the present appeal is liable to be 5 dismissed. Heard learned counsel for the respective parties and perused the recorded placed on record. 10. In order to consider the age of prosecutrix, this Court has to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the Dakhil Kharij Register of 1st Class (Ex.P-12 ), wherein date of birth of prosecutrix is mentioned as 25.11.2003 and which has been produced by the Principal of the School (PW-4) and he deposed before the trial Court that in the Dakhil Kharij Register, he has written the date of birth i.e. 25.11.2003. The dakhil-kharij register is admissible piece of evidence to determine the age of the prosecutrix. PW-2 father of the prosecutrix deposed the date of birth of the prosecutrix is 25.11.2003. In rebuttal to the said documentary evidence, no such evidence has been presented by the appellant side, which could refute the fact of the date of birth mentioned in the said document. Therefore, in the opinion of this Court at the time of alleged incident, her age was 15 years, 1 month and 14 days which is less than 16 years and she is undoubtedly minor. 11. Prosecutrix (PW-1) has stated in her deposition that on the date of incident, the accused came to her and said that he wanted to take her away but she refused, then the accused forcibly made her sit in a hotel in Manpur Chowk. She stated that accused had threatened her and took her to different places and established forcefully physical relation with her. 12. (PW-2) Father of the prosecutrix in her evidence deposed that her 6 daughter has told to her that the accused her taken to mumbai on the pretext of marriage and had forcibly made physical relation with her. 13. After close scrutiny of the entire evidence available on record, it is apparent that prosecutrix (PW-1) in her evidence has stated in categorical terms that it is accused/appellant who threatened the prosecutrix and took her to different places and established forceful relationship knowing the fact that prosecutrix is minor. Nothing favourable to accused/appellant could be elicited in the cross- examination of prosecutrix (PW-1) and her father (PW-2), in fact, she stuck to her version that accused/ appellant had forcibly established physical relation. Even otherwise, it is settled position of law that conviction can be recorded on the sole testimony of prosecutrix. No corroboration as a matter of law needs to be insisted. The prosecutrix being the victim of crime is required to be treated as an injured witness. 14. Further the fact also that the prosecutrix at the time of incident was minor, the appellant-accused does not get any advantage even if the case of the appellant is accepted to be a case of consent, the consent of a minor would not be of any relevance. As such, it cannot be said that the prosecution has not been successful in establishing the guilt of the appellant beyond the shadow of reasonable doubt in respect of the offence punishable under Section 363, 366 of IPC and Section 5(L)/6 of POCSO Act. 15. Thus, considering the entire facts and circumstances of the case 7 particularly, the evidence with regard to the age of the victim who is less than 16 years and also to the depositions made by the victim as well as her father who has fully supported the statements of the victim, this Court is of the opinion that there is no doubt that the accused appellant has committed such offence with the prosecutrix. No case is made out pointing out perversity in the judgment of the trial Court. In the above circumstances, the trial Court has not committed any manifest error of law and fact in convicting the appellant for the offence punishable under Section 363 & 366 of IPC and Section 5(L)/6 of POCSO Act, which deserves to be and is hereby afÏrmed and maintained. No interference is called for. The appeal thus deserves to be dismissed and the same is dismissed. 16. The appellant is in jail. He shall undergo the entire jail sentence awarded by the Trial Court. 17. In view of the dismissal of the appeal, pending interim application, if any, stands disposed of. 18. The Trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Arvind Kumar Verma) Judge Jyoti Digitally signed by JYOTI JHA Date: 2025.01.31 10:41:09 +0530