1 2025:CGHC:16604 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 208 of 2016 1 - Anjan Kumar Bhoi @ Aishwarya S/o Dukhi Shyam Bhoi Aged About 30 Years Incorrectly Mention As Dukhiram R/o - Village - Putka, P.S. - Saraipali, Tahsil - Saraipali, Civil And Revenue Distt. And Distt. Mahasamund Chhattisgarh , Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through The Police Station - Saraipali, Distt. Mahasamund Chhattisgarh , Chhattisgarh ... Respondent(s) For Appellant(s) : Shri J.A.Lohani, Advocate For Respondent/State : Ms. Isha Jajodia, PL (Hon’ble Shri justice Arvind Kumar Verma) Judgment on Board 08/04/2025 This appeal has been preferred against the judgment and order dated 08.02.2016 passed by the Additional Sessions Judge, Saraipali, District Mahasamund in Sessions Trial No. 61/2015 convicting the accused/appellant under Section 376 IPC and sentencing him to 2 undergo RI for 7 years with fine of Rs. 1,000 plus default stipulation. 2. Facts of the case in brief is that on 03.07.2015, the prosecutrix lodged a report (Ex.P-1) at police station Saraipali alleging that she was having love affair with the appellant since five years and the appellant had married with another girl and when she asked him, he said that he will marry her also and on 15.07.2015, in the night he asked her to meet in the backyard of her house where he forcibly committed rape on her. Again after 15-20 days, he forcibly committed rape on her and when she asked him to marry her, he refused to marry her and threatened that if she disclosed about the incident to anyone, he will make the video viral and put the same in MMS. She has also alleged that earlier on 25.06.2015 she had made a report at police station Saraipali but she has not mentioned about rape on the pretext that the appellant will marry her but when he refused to marry her, she lodged the report. She informed about the incident to her parents as also the Panch Ganesh Bhoi. Ont he basis of the said report, offence under Section 376 IPC was registered against the appellant and after completion of investigation, charge sheet was filed under Sections 376 IPC and accordingly charges were framed. 3. So as to hold the accused/appellant guilty, prosecution has examined 10 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the charge leveled against him and pleaded his innocence and false implication in the case. 4. Contention of Shri Lohani, counsel for the appellant is that the trial court has convicted the appellant mainly on the ground that the 3 prosecutrix was major aged about 21 years and she was a consenting party. It has been submitted by the learned counsel for the appellant that appellant is innocent the allegations levelled against him are false. Counsel for the appellant submits that when the appellant asked her to meet in the backyard, she came there and did not try to resist and that she was a consenting party. He submits that there is no cogent and legally admissible evidence available on the record to show that the prosecutrix was minor and less than 18 years of age on the date of incident. It is submitted that the prosecutrix was having relation with the appellant and when this fact came to the knowledge of the parents of the prosecutrix they objected as proceeding under Section 107 Cr.P.C. was drawn against the appellant and the prosecutrix, her father and brother have made statement that the prosecutrix was having relation with the appellant since last five years and during which she never made any allegation of rape against the appellant. The findings given by the learned trial Court against the appellant is perverse and contrary to the evidence available on record and consequently, the same is liable to be set aside. He further argued that even if any act of sexual relation was being made by the appellant with the prosecutrix, the same was consensual, which does not come under the definition of rape. As such, the appeal deserves to be allowed and the impugned judgment deserves to be set aside. 5. Learned State counsel submits that the appellant has rightly been convicted for the aforesaid offences, as the prosecution has been able to bring home the offences beyond reasonable doubt and therefore, the appeal deserves to be dismissed. It has further been argued that considering the age of the prosecutrix the Court below has rightly 4 awarded the sentence to the accused/appellant. 6. Heard counsel for the parties and perused the material available on record. 7. Firstly, the evidence produced by the prosecution has to be examined. The prosecution has relied upon the statement of the Prosecutrix (PW-1) who has stated that she was having love affair with the appellant since five years and the appellant had married with another girl and when she asked him, he said that he will marry her also and on 15.07.2015, in the night he asked her to meet in the backyard of her house where he forcibly committed rape on her. Again after 15-20 days, he forcibly committed rape on her and when she asked him to marry her, he refused to marry her and threatened that if she disclosed about the incident to anyone, he will make the video viral and put the same in MMS. She has also alleged that earlier on 25.06.2015 she had made a report at police station Saraipali but she has not mentioned about rape on the pretext that the appellant will marry her but when he refused to marry her, she lodged the report. 9. Father of the prosecutrix (PW-2) has stated that on 22-23 June, her daughter was weeping and on being asked, she stated that the appellant had given one mobile to her and he used call her. When she refused to go, he threatened her that he will prepare nude videos and will get them viral in the internet. He has stated that the appellant has committed rape on her daughter and they went to the Sarpanch and informed about the incident and thereafter lodged the report. Similar statements have been given by Mother of the prosecutrix (PW-3) and brother of the prosecutrix (PW-4). Dr. Pramila Toppo (PW-7) has stated that she has medically 5 examined the prosecutrix and gave her report vide Ex.P-10. She has opined that the finding is susggestive of sexual incerouse with old ruptured hymen. Dr. Amrit (PW-9) has medically examined the appellant and opined that he was capable of performing sexual intercourse. 10. The prosecutrix has admitted in her statement that she was in relation with the appellant and she was a consenting party. Considering the overall circumstances, it is crystal clear from the evidence that the prosecutrix had voluntarily consented the appellant for physical relation. Thus, for the above discussion, conclusion can be drawn that the prosecutrix was a consenting party. Further, there is no allegation that she had ever protested while making physical relation with the appellant. As per the testimony of the doctor Pramila Toppo (PW-7) she has opined that there were no external injuries found on the person of the prosecutrix. There is no sign of struggle on the body of the prosecutrix and the conduct of the prosecutrix shows that she was a consenting party. 11. In view of the foregoing discussions, this court is of the opinion that the prosecutrix was major and a consenting party in making physical relation with the appellant. She has not made any complaint to any person or to her parents nor resisted for help. It is not a case that the appellant has committed forceful sexual intercourse with the prosecutrix, without her will or consent. 12. Considering the entire evidence available on record, the evidence with regard to the age and conduct of the prosecutrix, I am of the opinion that the prosecution has failed to prove that the prosecutrix was less than 18 years of age at the time of incident. Further, she was a consenting party with the appellant in making physical relation with him 6 therefore, in the above facts and circumstances of the case, the offence under Sections 376 of IPC is not made out against the appellant. 13. For the foregoing reasons, the appeal is allowed. The judgment of conviction and order of sentence dated 08.02.2016 passed in Sessions Trial No. 61/2015 is set aside. The appellant stands acquitted of the charge levelled against him. Appellant is reported to be on bail. His bail bonds shall continue for a period of six months in view of Section 437-A of Cr.P.C. Sd- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.24 13:12:27 +0530