1 2025:CGHC:9763 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1572 of 2019 Hemchand @ Chotu S/o Anand Manhare Aged About 21 Years R/o Ward No. 07, Ranisagar Para, Palari, Police Station Palari, District Baloda Bazar- Bhatapara Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Police Station Palari, District Baloda Bazar- Bhatapara Chhattisgarh. ... Respondent For Appellant : Mr. A.K. Singh, Advocate. For Respondent/State : Mr. Shailendra Sharma, P. L. for the State. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 25/02/2025 1. The present appeal has been filed under Section 374(2) of the Code of Criminal Procedure 1973, against the impugned judgment of conviction and sentenced dated 24.09.2019 passed by learned Special Judge, (POCSO Act, 2012) Balodabazar in Special Criminal Case POCSO No.31 of 2018, whereby the appellant has been convicted and sentenced in the following manner:- VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.03.07 13:14:41 +0530 2 Conviction Sentence Under Section 363 of IPC R.I. for 3 years and fine of Rs. 5,00/- in default of payment of fine amount further R.I. for one month Under Section 366 of IPC R.I. for 5 years and fine of Rs. 5,00/- in default of payment of fine amount further R.I. of one month Under Section 4 of POCSO Act 2012. R.I. for 10 years and fine of Rs.5,00/- in default of payment of of fine amount further R.I. for one month. (All the sentences are directed to run concurrently.) 2. The brief facts of the case are that, PW-1, mother of the victim lodged a missing report to the police that her minor daughter is missing since 04.12.2016 and her whereabouts could not be traced out, despite her search in her relatives house and nearby places. The police has registered the FIR under Section 363 of IPC and Section 16 & 17 of POCSO Act, against unknown person which is Ex.P/33. During the investigation the victim was recovered from the possession of the appellant on 08.05.2018 and recovery panchanama Ex.P/7 was prepared in presence of the witnesses. She was sent for her medical examination to Community Health Center, Palari, but there is no lady doctor available at Community Health Center, Palari, therefore, she was referred to the District Hospital, Balodabazar for her medical examination. At district hospital Balodabazar, she refused to get her medically examined by the doctor and a note to that effect has been obtained in the document Ex.P/31. She underwent for ultra Sonography test at District Hospital Balodabazar and according to the 3 Ultra Sonography test report Ex.P/18, she was found pregnant of 19 weeks and 4 days. Spot map Ex.P/4 was prepared by the patwari and Ex.P/17 was prepared by the police. The underwear of the victim was seized vide seizure memo Ex.P/10. With respect to the age and date of birth of the victim, the police has seized school register from Government Naveen Girls Primary School Palari vide seizure memo Ex.P/13 and after retaining its attested true copy Ex,P/14-C the original register was returned back to the school. The appellant was arrested on 09.05.2018 and he too was sent for his medical examination to Community Health Center Palari, where he was medically examined by Dr. B.S. Dhruv, PW-16. After medically examined the appellant doctor has found him capable to perform sexual intercourse. The statement of the witnesses under Section 161 of Cr.P.C. and the statement of victim under Section 164 of Cr.P.C. have been recorded and after completion of usual investigation charge-sheet has been filed before the learned trial Court against the appellant for the offence under Section 363, 366 & 376 of IPC and Section 4 of POCSO Act. 3. The learned trial court has framed charge against the appellant for the offence under Section 363, 366 & 376 of IPC and Section 4 of POCSO Act. The appellant denied the charge and claimed trial. 4. In order to prove the charge against the appellant the prosecution has examined as many as 18 witnesses and statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 4 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence this appeal. 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses, which cannot be made basis for convicting the appellant in the offence in question. The school record has not been proved in accordance with law and there is no cogent and clinching evidence produced by the prosecution that the victim was minor on the date of incident. She was in love affair with the appellant and herself had gone with him and engaged in making consensual physical relation. The victim along with the appellant visited various places and earn their livelihood. She had gone to Lucknow but have not made any complaint and have not raised any alarm while traveling up to Lucknow and even while residing with him. The victim being the consenting party, no offences either of kidnapping or of rape has been made out against the appellant and he is entitled for acquittal. 7. On the other hand learned counsel for the State opposes and have submitted that the prosecution has proved its case beyond reasonable doubts. But for minor omission or contradictions, the evidence of prosecution witnesses are fully reliable and the conviction can be made on the basis of the same. School record has been proved by the PW-8 who is the incharge headmaster of the school and according to the school record the victim was found to be minor and age and date of birth of the victim has not been challenged either in the evidence of 5 in charge headmaster PW-8 or in the evidence of victim and her parents. Therefore, from the evidence available in the case. The victim proved to be minor on the date of incident and she was subjected to kidnapped and rape by the appellant. Therefore, learned trial Court has rightly appreciated the evidence and has convicted and sentenced him, which is absolutely justified and needs no interference. 8. I have heard learned counsel for the parties and perused the record of the case. 9. The first and foremost question arises for consideration would be the age of the victim as to whether on the date of incident. The victim was minor or not. The prosecution has mainly relied upon the school register Ex.P/14-C, which is sought to be proved by PW-8 who is in charge headmaster of the school. He stated in his evidence that he is in-charge headmaster of the government primary school Palari since 2013. The police has seized school register with respect to the age and date of birth of the victim vide seizure memo Ex.P/13 and after retaining the attested true copy of the school register Ex.P/14-C, original register Ex.P/14-C was return back to the school. According to the entries made in the shool register the date of birth of the victim is 07.07.2004. No cross-examination has been done from this witness which amounts to admission of date of birth of the victim. The examination-in-chief made by this witness had not been challenged by the cross-examination and there is nothing in his evidence to disbelieve the same. 10. PW-2 victim, her mother PW-1 and her father PW-6 though they have not stated any date of birth but have stated that the victim was aged 6 about 13 years at the time of incident and the said part of the evidence has also not been challenged in their cross-examination. The age of the victim as shown by the witnesses in their chief examination is corroborated with the entries made in the school register Ex.P/14-C and in absence of any challenge all these evidences by the appellant, it is very different to disbelieve the same and to hold that the prosecution could not be proved the age of the victim rather the unchallenged evidence in the case is available that the victim was aged about 13 years on the date of incident and this Court is also in agreement with the finding recorded by the learned trial Court that the victim was minor and less than 18 years of age on the date of incident. 11. 11. So far as the offence of kidnapping and rape are concerned, I again examined the evidence of the victim PW-2 she stated in her evidence that she knew the appellant since the time when she was studying at class V, he was residing just in front of her house. One year back she eloped with him and had gone to Lucknow. They stayed at an under construction house and working as a labourer there. They were residing as husband and wife in a common room and made physical relation with each other. She was being recovered by the police from the possession of the appellant. In cross-examination, she admitted that on the date when she eloped with the appellant her father was in the house and she had gone with the appellant without informing her family members. Although she admitted that the appellant has not committed any offence against her will or consent but in the facts that the victim was found to be minor and less than 18 years of age she was not competent to give her consent in making physical relation 7 with anyone. The appellant also not challenged that the victim was not recovered from his possession or victim was not residing with him at Lucknow but he cross-examined the victim on the point that she was the consenting party in going to Lucknow and residing with the appellant there. 12. PW-1 the mother of the victim has stated that when her daughter was not found anywhere she lodged the report and subsequently she was recovered from the village Murlidih, and she disclosed that she had gone to Lucknow along with the appellant. When she recovered she was carrying pregnancy, though she also admitted that the victim has disclosed that she on her own will had gone with the appellant and the appellant has not committed any forceful act with her. But due to her age it would not be acceptable that she has given her consent in making physical relation with the appellant. 13. The father of the victim PW-6 is also a witness to the same effect that when the victim recovered she disclosed that she on her own will had gone to Lucknow with the appellant. 14. PW-7 is the witness of recovery panchanama Ex.P/7. He stated in his evidence that the victim was recovered from the possession of the appellant and he witnessed the same. Nothing in his cross- examination also to disbelieve that the victim was not recovered from the possession of the appellant. 15. PW-4 is the brother of the victim he too have supported the prosecution’s case that when the victim was not found, they lodged the missing report and thereafter, she was recovered from the possession of the appellant. The appellant kept her at Lucknow and Hyderabad as his wife and the victim has also disclosed to him that 8 the appellant has made regular physical relation with her but she is minor and she is not competent to give consent. He also remain firm in hir cross-examination. 16. PW-14 Dr. N.P. Jandge who conducted the ultra sonography test at District Hospital Balodabazar has proved the report Ex.P/18 in which he found that the victim was carrying pregnancy of 19 weeks and 4 days on 28.05.2018 when she has brought before him for her test. 17. From all these evidence, it is quite vivid that the victim was minor and aged about 13 years. She was being taken by the appellant both of them were residing at Lucknow and the appellant committed sexual intercourse with her. Since the victim was found minor, she was not able to give her consent in making physical relation with the appellant or even she was not able to give her consent to accompany the appellant. Therefore, the offence against the appellant for kidnapping a minor girl for illicit intercourse and commission of rape has duly been proved by the prosecution by leading cogent and clinching evidence. I do not found any ground to differ with the finding recorded by the learned trial Court. 18. Consequently, the appeal filed by the appellant is hereby dismissed. The appellant is reported to be in jail since 24.09.2019, he shall serve entire jail sentence as awarded by the learned trial Court. He is entitled for set off his undergone period during the trial as well as during pendency of the present appeal. 19. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by 9 preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 20. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE Vaibhav