1 2025:CGHC:17349 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 252 of 2016 Premlal @ Rinku Satnami (Mandle) S/o Keshav Mandle Aged About 24 Years R/o Village Sevti, Police Station Bori, Tahsil Dhamdha, Civil and Rev. District Durg Chhattisgarh. ... Appellant Versus State of Chhattisgarh Through Station House Officer, Police of Police Station Amanaka, District Raipur Chhattisgarh. ---- Respondent -------------------------------------------------------------------------------------------- For Appellant : Ms. Smita Jha, Advocate For Respondent-State : Mr. Rishabh Singh Deo, PL ------------------------------------------------------------------------------------------ Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 15.04.2025 1. This appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence dated 08.02.2016 passed in Sessions Trial No.72/2014 by which the learned Additional Sessions Judge (Fast Track Court), Raipur, District Raipur 2 (C.G.) has convicted and sentenced the appellant as under :- Conviction Sentence In Default of Payment of Fine Under Section 363 of the IPC RI for 03 years and fine amount of Rs.1,000/- Additional RI for 01 month Under Section 366 of the IPC RI for 05 years and fine amount of Rs.1,000/- Additional RI for 01 month Both sentences are to be run concurrently 2. The case of prosecution in brief is that the victim’s father lodged a report in the Amanaka Police Station to the effect that he lives in Rotary Nagar. He had gone to Tumsar on 10.10.2013. When the returned home on 12.10.2013, his wife told him that his daughter (victim) left the house on 10.10.2013 at about 11:00 AM saying that she was going to school at Chaubey Colony and has not returned. On 13.10.2013 at 7-8 AM, he received a call on his mobile number that his daughter is with the accused-appellant in village Sevati PS Bori. Then he came to know that the accused has lured his minor daughter by promising marriage and had taken her away. 3. On the basis report of the complainant- fahter of the prosecutrix, FIR was registered against the appellant for the offence punishable under Sections 363, 366 of IPC under Crime No.311/2013 and investigation was commenced. 3 4. During investigation, the prosecutrix was recovered from the custody of the accused-appellant on 13.10.2013. Spot map of the incident place was prepared. The statement of the prosecutrix was recorded. The progress card of the prosecutrix was seized. As the victim was a minor, the consent of the victim’s father and the victim was obtained and the victim and her underwear were medically examined. The accused was sent for medical examination and on the basis of the medical report, the seized slide, the victim and the accused’s underwear were sent to forensic science laboratory for examination. On the basis of victim’s statement, the crime under Section 376 IPC was added and the statement of other witnesses were recorded. 5. After completion of investigation, charge-sheet was filed against the appellant for the offence under Sections 363, 366 and 376 of IPC and Section 4 of the POCSO Act followed by framing of charge by the trial court accordingly. 6. In order to establish the charge against the appellant, the prosecution has examined 10 witnesses. Statement of the appellant was also recorded under Section 313 Cr.P.C., in which he denied the charge levelled against him and stated that he is innocent and has been falsely implicated in the case. However, the appellant has not examined any witness in his defence. 7. After appreciation of evidence available on record, learned trial Court has 4 convicted the appellant and sentenced him as mentioned in paragraph one of this appeal. Hence this appeal by the appellant. 8. Learned counsel for the appellant contended that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix. School Admission and Discharge Register is a weak type of evidence. There is no any Kotwari Register or ossification report, produced by the prosecutrix to determine her actual age on the date of incident, that she was below 18 years of age. She further contended that the prosecutrix herself went along with the appellant of her own will and no alarm was raised by her while she roamed with the appellant from one place to another. He further submits that if the conduct of the prosecutrix is seen in its entirety, it is clear that she had been a consenting party to the act of the appellant having developed an intimacy with him and nowhere she appears to have resisted while making physical relation. She further contended that the testimony of the prosecutrix with regard to ravishing by the appellant definitely is not supported the medical evidence. Therefore, the alleged offences of the IPC is not made out against the appellant, hence, he is 5 entitled for acquittal. 9. On the other hand, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits that there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference. 10. I have heard learned counsel for the parties, and perused the record with utmost circumspection. 11. In order to consider the age of prosecutrix, I have to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the Progress-Report of Class 8th-A (Article-A), wherein date of birth of prosecutrix is mentioned as 09.06.1996. 12. Prosecutrix (PW-2) has stated that her date of birth is 09.06.1996 and on the date of incident, ie, 10.10.2013, she was aged about 17 years and 04 months. Father of the prosecutrix (PW-3) has stated in his examination- in-chief that he is not aware about age of the prosecutrix, but on asking leading question, he stated that age of the prosecutrix is 09.06.1996 while mother of the prosecutrix (PW-7) has stated in her examination-in-chief that date of birth of the prosecutrix is 11.09.1997. 13. From perusal of the statement of the mother, father and the prosecutrix, it reveals that there is no any documentary evidence available on record 6 that on what basis date of birth of prosecutrix 09.06.1996 is marked and also no birth certificate issued by the Nagar Panchayat has been produced. Prosecution has failed to prove the case against the appellant beyond reasonable doubt. Merely on the basis of the Progress Report of Class 8th, it could not have been relied upon to hold that the prosecutrix was below 18 years at the time of commission of the offence. In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix. School Admission and Discharge Register is a weak type of evidence. There is no any Kotwari Register or Ossification report, produced by the prosecution to determine her actual age on the date of incident, that she was below 18 years of age. 14. In order to consider the consent/conduct of the prosecutrix, I have to examine the evidence available on record produced by the prosecution. Prosecutrix (PW-2) has stated in her Court statement that the accused used to come at her tea shop to have tea and she got acquainted with him and they became friends. In October 2013, she was going to her school at 11 am, the accused met her there and stopped her and said, he will drop her to the school. After saying this, he made her sit in his car and took her to his village, Sevati. From Sevati, she told her friend Parveen over phone that she is in village Sevati with the accused, then her friend told her mother and family members, upon which her family members filed a 7 report against the accused in the police station. After that the police came to take her to village Sevati and took her to Amanaka Police Station. The accused had forced physical relations with her in Sevati. The police interrogated her and recorded her statement. She further stated that the accused used to tell her that he loves her and will marry her and keep her well as his wife. Accused took her to Kabirnagar house saying that he will marry her. The accused had not made physical relations with her. 15. This witness has stated in her cross-examination (Para-8) that she was not in school uniform on the day she went with the accused. On 11.10.2013, she went to the accused's village Sevati with him sitting on his motorcycle. On the same day, she stayed overnight with the accused in village Sevati. She went to the accused's maternal uncle's village Doomardih with the accused and his mother and his aunt. 16. In Para-14, she stated that she went with the accused to his village Sevati, she did not complain to anyone nor lodged a complaint in any police station. She went to the accused's room in Kabir Nagar and was there till he returned from duty. She further stated that her father got a false report to implicate the accused in crime in question. 17. In para-15, she stated that her friend Parveen had told her that they would go to Dongargarh and that is why she did not wear school uniform. She had left her father's house and guardianship before going with the 8 accused. 18. In order to consider the medical report of prosecutrix, I have to examine the evidence available on record produced by the prosecution. 19. The prosecutrix has admitted in her statement under Section 164 of the Cr.P.C. that the accused used to come at her tea shop to have tea and she got acquainted with him and they became friends. In October 2013, she was going to her school at 11 am, the accused met her there and stopped her and said, he will drop her to the school. After saying this, he made her sit in his car and took her to his village, Sevati. From Sevati, she told her friend Parveen over phone that she is in village Sevati with the accused, then her friend told her mother and family members, upon which her family members filed a report against the accused in the police station. After that the police came to take her to village Sevati and took her to Amanaka Police Station. The accused had forced physical relations with her in Sevati. The police interrogated her and recorded her statement. She further stated that the accused used to tell her that he loves her and will marry her and keep her well as his wife. Accused took her to Kabirnagar house saying that he will marry her. The accused had not made physical relations with her. 20. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix has nowhere disclosed that at any point of time, the appellant has committed rape, therefore, it appears that it is a case of 9 elopement. 21. Thus, considering the entire facts and circumstances of the case, it can safely be concluded that the prosecution has not been able to establish a case under Sections 363 and 366 of IPC against the appellant and since the charges have not been proved beyond reasonable doubt by the prosecution, the conviction of the appellant for the said offences cannot be sustained, therefore, offence under Sections 363 & 366 of IPC would not be made out against the appellant. 22. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 08.02.2016 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. It is reported that the appellant is on bail. His bail bonds are not discharged at that stage and the same shall remain operative for a further period of six months in light of Section 437-A of the Cr.P.C. 23. 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 Vasant