1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 342 of 2018 Judgment Reserved on 28.11.2025 Judgment Delivered on 05.12.2025 • State of Chhattisgarh, Through- the Incharge Police Station Pussour, District- Raigarh, Chhattisgarh. …....Appellant versus • Pushpendra @ Bonu, S/o Narayan Sahu, aged about 24 Years, R/o Village- Navagawa, Police Station Balouda, District- Janjgir-Champa, Chhattisgarh. ... Respondent For Appellant : Ms. Pragya Pandey, Deputy Government Advocate. For Respondent : Mr. Abhishek Saraf, Advocate. Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal CAV Judgment Per Radhakishan Agrawal, J. 1. This acquittal appeal preferred by the State arises out of the judgment dated 24.03.2018 passed by the Second Special Judge (POCSO), District Raigarh, C.G., in POCSO Act, 2012 Case No. 34/2016, whereby the learned trial Court acquitted the accused/respondent of the charges under Section 376 of the IPC and Section 6 of the POCSO Act, 2012. 2. Case of the prosecution, in brief, is that on 10.02.2016, victim lodged a written report (Ex.P-6) stating that since 01.02.2016, the accused/respondent had developed a love relationship with her and, during this period, he repeatedly established physical relations with her on the false pretext of marriage. However, when the victim asked him to AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2025.12.05 16:23:45 +0530 2 marry her, the accused/respondent refused to do so. Based on the written report (Ex.P-6), FIR (Ex.P-7) was registered against the respondent. 3. During investigation, spot map was prepared vide Ex.P-5 and after obtaining consent letter vide Exs.P-8 & 12, victim was sent for medical examination whereupon PW-4 Dr. P.C. examined her and did not notice any sign of recent forcible sexual intercourse upon her nor did she find any sign of injury over the body of the victim either internally or externally and also no definite opinion could be given by her regarding recent sexual intercourse with the victim and gave her MLC vide Ex.P-5. Vide Ex.P-1, Progress Card of the year, 2011 of the victim and vide Ex.P-4, birth certificate of victim were seized. Vide Exs.P-2 & P-3, undergarments of victim and accused/respondent were seized. Seized articles were sent to FSL for chemical examination and as per FSL report (unexhibited), no seminal spots and human spermatozoa have been found on the seized articles. 4. Statements of the witnesses were recorded and after completing investigation, charge sheet was filed against the accused/respondent before the concerned trial Court. Accused/respondent abjured the guilt and prayed for trial. 5. The trial Court, after hearing learned counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted the accused / respondent herein of the said charges leveled against him. 6. Learned counsel for the appellant/State would submit that the trial Court is absolutely unjustified in acquitting the accused/respondent of the said charges by recording perverse findings. She would further submit that there is ample evidence on record to establish that, at the time of the incident, the victim was a minor and in addition thereto, there is sufficient 3 evidence to show that the accused/respondent, on the false pretext of marriage, established physical relations with the victim on several occasions and despite this, the learned trial Court committed a grave error in acquitting the accused without appreciating the evidence on record in its correct perspective. Thus, the impugned judgment of acquittal suffers from perversity and illegality and is, therefore, liable to be set aside. 7. On the other hand, learned counsel for the accused/respondent, while supporting the well-merited impugned judgment, would submit that the prosecution has failed to prove that the victim was a minor at the time of the incident. He would further submit that the birth certificate (Ex.P-4), on which the prosecution has relied, is not genuine, as it was prepared four months after the lodging of the FIR, thereby creating serious doubt about its authenticity and rendering it unreliable. He would also submit that the victim was a consenting party to the alleged acts, and that the learned trial Court, on the basis of the evidence available on record, has rightly concluded that the prosecution has not succeeded in proving its case against the accused/respondent, resulting in his acquittal. Therefore, the appeal filed by the appellant/State is liable to be dismissed. 8. We have heard learned counsel for the parties and perused the material available on record. 9. The first question that arises for consideration by this Court is whether the finding recorded by the trial Court, holding that the victim/prosecutrix was not below 18 years of age on the date of the incident, is correct. 10. In order to ascertain the age of the prosecutrix, PW-7 father of the victim, has stated that the birth dates of all his children were recorded in the Kotwari register, and that the Kotwar of his village, namely Budhu, had entered those birth dates in the register. However, the said Kotwar, Budhu, 4 has not been examined nor the Kotwari register has been produced by the prosecution. PW-7 has further stated that he could not state the date, month, or year of the victim's birth and admitted that he does not know the birth dates of any of his children. He has also stated that since his grand- father had admitted the victim to Class-I, only the grand-father could state the date of birth recorded at that time, however, the grand-father has not been examined by the prosecution, and the school admission register of the victim has also not been produced by the prosecution for the reasons best known to it. Similarly, PW-11 mother of the victim has stated that she does not know the date of birth of any of her children. The prosecution, however, produced the birth certificate of the victim (Ex.P-4), which, upon perusal, appears to have been issued on 21.06.2016, i.e., four months after the lodging of the FIR (Ex.P-7). Moreover, the place of birth mentioned in the certificate is village Thengapali, whereas PW-5 victim, has stated in her deposition that she was born at her maternal uncle's home in village Malda, Thana Pussor, creating doubt about the authenticity of alleged birth certificate (Ex.P-4). Besides above, no ossification test was conducted by the prosecution to determine the age of the victim. 11. From the foregoing evidence, it is clear that the prosecution has neither produced the school admission register nor the Kotwari register, which are primary and important documents to establish the age of the victim. In the absence of such primary documents and without an ossification test to determine her exact age, it cannot be conclusively stated that the victim was a minor at the time of the incident. Further, PW-4 Dr. P.C., upon examination, found that the victim had 28 teeth, which indicates that her age could be assessed as above 18 years. Therefore, considering the facts of the present case and the evidence collected by the prosecution, we find 5 that the prosecution has failed to produce reliable and conclusive evidence to prove that the victim was a minor, i.e., below 18 years, at the time of the incident. Accordingly, the learned trial Court is justified in holding that the victim was not below 18 years at time of incident and we hereby affirm the said finding. 12. Now, the next question is whether the accused / respondent is the author of the crime in question. 13. PW-5 victim has stated in her deposition that she was in a love relationship with the accused/respondent, who had been living as a tenant in her grandfather’s house for about six months prior to the incident, and that she had known him since then. She has further stated that within a month or two of his arrival, they fell in love and used to talk regularly over mobile phone. She has also stated that between 01.02.2016 and 06.02.2016, despite having physical relations with the accused on several occasions, she did not disclose this to her parents or anyone else. She has also stated that they had established physical relations in her house when her parents were not present. She has also stated that after 07.02.2016, she informed her parents about the incident, but on the contrary, PW-7 father of the victim has stated that he and his wife were unaware of any such incident until their tenant- Vikas, informed them on 10.02.2016 that the accused had allegedly assaulted the victim. He (PW-7) has further stated that the victim had not disclosed anything to him or his wife prior to that date. Moreover, PW-10 B.P. Yadav, the Investigating Officer, has stated that the complaint in Ex.P-6 was in the handwriting of the victim, however, victim (PW-5) denied this, stating that the complaint in Ex.P-6 was not written by her, thereby creating doubt regarding its authenticity. 6 14. From perusal of the above evidence, it is evident that there was a love affair between the victim and the respondent, and the victim was a consenting party with respect to the alleged acts. Further, there are material contradictions and omissions in the statements of the victim (PW-5), her parents (PW-7 and PW-11) and PW-10 B.P. Yadav, the Investigating Officer, and their statements do not corroborate with each other. Moreover, PW-4 Dr. P.C., who medically examined the victim, did not find any signs of injury, either externally or internally and could not give a definite opinion regarding recent sexual intercourse with the victim. The learned trial Court, after elaborately discussing and analyzing the evidence led by the prosecution, came to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt and accordingly, acquitted the accused/respondent of the charges leveled against him. 15. After considering the material available on record as well as the elaborate judgment impugned passed by the trial Court, we are of considered opinion that the judgment impugned acquitting the accused/respondent of the said charges is just and proper and does not call for any interference. 16. Accordingly, the appeal by the appellant/State against the acquittal of the accused/respondent is hereby dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) Judge Judge Akhilesh