1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 155 of 2017 Judgment Reserved on 25.06.2025 Judgment Delivered on 04.07.2025 • State of Chhattisgarh, Through Station House Officer, Police Station Rajpur, District Balrampur Ramanujganj, Chhattisgarh. ...Appellant versus • Sudhan Kumar, S/o Devlal Gond, aged about 22 Years, R/o Village Chatakpur, Police Station Rajpur, District Balrampur Ramanujganj, Chhattisgarh. ... Respondent For Appellant : Mr. Deepak Kumar Singh, Panel Lawyer. For Respondent : None, though served. Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal CAV Judgment Per Radhakishan Agrawal, J. 1. This acquittal appeal filed by the appellant/State arises out of the judgment dated 29.05.2013 passed by the Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj, C.G. in Sessions Case No.545/2011, whereby the learned trial Court acquitted the accused/respondent herein of the charge under Sections 363, 366(d) & 376 (1) of Indian Penal Code (in short 'IPC'). 2. Case of the prosecution, in brief, is that on 10.07.2011 at about 10:00 pm, prosecutrix, who is said to be below 18 years of age, had gone AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2025.07.04 18:19:44 +0530 2 towards field to relieve herself, at that time, respondent came there, enticed her and abducted from lawful guardianship of her parents, wrongfully confined her in his house and after that, took her to various places and on the pretext of marriage, committed sexual intercourse with her on many occasions. PW-2 father of the prosecutrix informed the Police Station Rajpur about the missing of prosecutrix, upon which, Police Station Rajpur registered a missing report on 05.09.2011. Thereafter, on 13.09.2011, prosecutrix was recovered from the possession of the respondent and Recovery Panchanama was prepared vide Ex.P-15. When prosecutrix returned to her house, she informed about the incident to her parents. On the report of prosecutrix, on 15.09.2011, FIR (Ex.P-8) was registered against the respondent for the offence under Sections 363, 366 and 376 of IPC. During investigation, consent letter (Ex.P-5) of prosecutrix and her father was obtained and she was sent for medical examination where Dr. M.E. (PW-13) examined the prosecutrix and did not notice any sign of recent sexual intercourse nor did find any sign of injury over the body of the prosecutrix either internally or externally and gave her MLC report vide Ex.P-16. Undergarments of prosecutrix and respondent were seized vide Exs.P-1 & P-2 respectively. One vaginal slide of prosecutrix was also seized vide Ex.P-3. 3. Statements of the witnesses were recorded and after completing investigation, charge sheet was filed against the accused/respondent before the concerned trial Court for the offence under Sections 363, 366(d) and 376(1) of IPC. Accused/respondent abjured his guilt and prayed for trial. 3 4. The prosecution in order to bring home the offence, examined as many as 14 witnesses in support of its case and exhibited 17 documents connecting the respondent/accused to the crime in question. However, in his defence, respondent/accused has examined none, but exhibited documents i.e. (Ex.D-1 & D-1C). 5. The trial Court, after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted the accused/respondent herein of said charge leveled against him. 6. Learned counsel for the appellant/State would submit that the trial Court is unjustified in acquitting the accused/respondent herein of said charges by recording perverse findings. He would further submit that there is ample evidence on record to show that at the time of incident, the prosecutrix was minor and in addition, there is also sufficient evidence on record to show that the respondent enticed and abducted the prosecutrix from the lawful guardianship and thereafter committed sexual intercourse with her and despite that, the learned trial Court has committed grave error in acquitting the accused/respondent without appreciating the evidence on record in its correct perspective. Thus, the impugned judgment of acquittal suffers from perversity and illegality, therefore, the same is liable to be set aside. 7. Heard learned counsel for the Appellant/State and perused the material available on record. 8. The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal, which reads as under:- “25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a 4 possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.” 9. The first question which arises for consideration by this Court is whether the finding recorded by the trial Court holding the victim/prosecutrix to be not below 18 years on the date of incident is correct or not? 10. In order to ascertain the age of the prosecutrix, PW-6 prosecutrix has stated that at the time of incident, her age was 14 years. However, on the contrary, her mother and father (PW-1 & PW-2) have stated that at the time of incident, their daughter's age was about 16 years. It is pertinent to mention here that parents of the prosecutrix have not mentioned the exact date of birth of prosecutrix and only on the basis of guess work, they told the age of the prosecutrix and also did not provide any document with regard to exact date of birth of prosecutrix. This apart, during investigation, Dakhil Kharij Panji was seized which is marked as Ex.P-7, wherein date of birth of the prosecutrix was mentioned as 01.07.1997 and her date of admission in the school was mentioned as 01.07.2003 at serial No.137. However, a perusal of said document (Ex.P-7) would show that date of birth of prosecutrix and her date of admission in school mentioned in the said document (Ex.P-7) has been overwritten with pen, in both numerical and words form. It appears that initially, the date of birth was mentioned as '01.07.1992' in figures and words, which were subsequently struck off and replaced with '01.07.1997'. It is also pertinent to mention here that the entries in the 5 register from serial numbers 135 to 138 show admission dates of 01.07.1998 for serial Nos. 135 & 136. However, at serial number 137, where the prosecutrix name is entered, the date of admission in school is stated to be written as 01.07.2003. In a properly maintained admission register, entries are generally made in chronological sequence. Therefore, the entry dated 01.07.2003 appearing between entires dated 01.07.1998 and 04.07.1998 raises a serious doubt regarding its genuineness. Accordingly, it cannot be denied that the date of birth originally recorded as 01.07.1992 has been tampered with to show 01.07.1997. Had the actual date of birth of the prosecutrix been 01.07.1992, then she definitely would have been approximately 19 years at the time of incident. This apart, PW-3 P.S., Shiksha Karmi Grade-III, has stated that before the Court, he did not bring the original Dakhil Kharij Register and he has given a photocopy of the same. In cross- examination, he admitted that one S.T, Head Master of School, came to him and told to show Dakhil Kharij Register saying that he has to give prosecutrix's birth certificate and after that, he handed over the same to him. He also admitted that he has doubt that S.T., Head Master, has done some manipulations in the said document. That apart, original Dhakil Kharij Register has not been brought on record by the prosecution for the reasons best known to it. Furthermore, in document Ex.D-1 Family Employment Card / Job Card brought on record by the defence would show that at the time of incident, age of the prosecutrix was 20 years and the said document (Ex.D-1) has also been proved by PW-2 father of the prosecutrix and in his statement, he (PW-2) admitted that in document Ex.D-1, name and age of respondent and his 6 daughter/prosecutrix are mentioned and the said card was made when prosecutrix had left the house. 11. 11. Thus, looking to the facts of the present case and after considering the evidence collected by the prosecution, we find that the prosecution has failed to bring on record clinching and reliable evidence to prove the fact that the prosecutrix was minor and less than 18 years of age on the date of incident and the trial Court, in its impugned judgment, has elaborately discussed the evidence with respect to the age of the prosecutrix and also held that prosecution has not proved that at the time of incident, the prosecutrix was below the age of 18 years and we hereby affirm the said finding. 12. Now, the next question would be, whether the respondent/accused is the author of the crime in question or not? 13. PW-1 prosecutrix has stated that on the date of incident, when she had gone to relieve herself, at that time, respondent came there and took her to village Lalmati where he committed sexual intercourse with her. She has further stated that from village Lalmati, respondent took her to Ambikapur by bus and from Ambikapur to Chirmiri by train and from there, he took to his uncle's house at Koriya district where she stayed with him for a month and where also, respondent committed sexual intercourse with her repeatedly. This witness was subjected to cross- examination and in cross-examination, she admitted that she knew the respondent prior to the incident as he belongs to her village. In para 7, she admitted that when she was being taken away by the respondent, she could not scream. She also admitted that while she was travelling with the respondent in bus and train and also staying with the 7 respondent in different places, at that time also, she did not raise any alarm or shout or inform about the incident to anyone. This apart, PW-2 father of the prosecutrix also admitted that when prosecutrix had left the house, he did not lodge any report at the police station. 14. If we consider the entire sequence of events, it is alleged that respondent abducted the prosecutrix from Chatakpur village on 10.07.2011 at around 7:00 pm. Firstly, respondent took her to his house and thereafter, he took her to Ambikapur and then to village Paldhajam, Koriya at his uncle's house. The applicant was recovered by the police on 14.09.2011 and she reported the incident on 15.09.2011. Thus, it is clear that the prosecutrix stayed with the respondent for about 2 months and 5 days. It is pertinent to mention here that on 10.07.2001, when respondent firstly took her along with him, she did not raise any alarm. According to prosecutrix, respondent took her Rajpur on foot, but at that time also, she did not raise her voice or inform to anyone in the vicinity that she is being abducted by the respondent. This apart, from Rajpur to Ambikapur, she travelled with the respondent by bus and from Ambikapur to village Paldhajam, Koriya, she travelled by train and during that period also, she did not raise any alarm or inform about the incident to anyone. Moreover, prosecutrix also admitted that respondent used to go out daily to graze cattle, but she did not state that she was ever locked in a room or her hands and feet were tied by the respondent. 15. Close scrutiny of the evidence available on record would show that the prosecutrix was a consenting party and stayed with the respondent- accused on her own free will and consent and no resistance was made by her during course of stay with the respondent and even while 8 committing sexual intercourse. Further, she did not make any complaint to any of the nearby persons while staying and travelling with the respondent-accused. The evidence shows that she was not abducted by the respondent-accused and she herself accompanied the respondent- accused on her own volition and consent. Furthermore, contents of FIR (Ex.P-8) would show that the incident occurred on 10.07.2011, but FIR (Ex.P-8) was lodged on 15.09.2011, for which, no explanation has been offered by the prosecution for such delay in lodging the FIR (Ex.P-8). This apart, Dr. M.E. (PW-13) who examined the prosecutrix did not notice any sign of recent sexual intercourse nor did find any sign of injury over the body of the prosecutrix either internally or externally. Moreover, respondent has submitted Job Card (Ex.D-1) issued by the Government of Chhattisgarh under MNREGA Scheme where his and prosecutrix's name and age are written and looking to the photograph affixed on the job card, it appears that prosecutrix has voluntarily posed herself for the photograph with the respondent and standing on his left side in a manner suggestive of a husband-wife relationship. The law is well settled that in the case of rape, the conviction can be maintained even on the basis of the sole testimony of the prosecutrix if her evidence inspires confidence. In the present case, the statement of the prosecutrix does not inspire confidence as her conduct itself shows that she was staying with the respondent-accused on her own free will. 16. The learned trial Court has elaborately discussed the evidence led by the prosecution and after analyzing the entire evidence led by the prosecution come to the conclusion that the victim/prosecutrix was not below 18 years of age at the time of incident and that the evidence of prosecutrix itself shows that she was staying with the respondent- 9 accused on her own free will and as such, acquitted him of the said charges as the prosecution has failed to prove its case beyond reasonable doubt. 17. 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 herein of the said charges is just and proper and does not call for any interference. 18. Accordingly, this appeal by the Appellant/State against the acquittal of the accused/respondent herein is hereby dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) Judge Judge Akhilesh