1 2025:CGHC:6153 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 491 of 2021  Rahul Kumar Joshi S/o Sukhadas Joshi Aged About 19 Years Address Birebhath P.S. Nandani Nagar District Durg Chhattisgarh. ... Appellant versus  State of Chhattisgarh Through Station House Officer Nandani Nagar, District Durg Chhattisgarh. ---- Respondent -------------------------------------------------------------------------------------- For Appellant : Mr. RR Soni, Advocate (Legal Aid) For Respondent-State : Mr. GL Uikee, PL. -------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 03.02.2025 1. This criminal appeal has been preferred by appellant against the judgment of conviction and order of sentence dated 24.02.2021, passed in Special Session Case (POCSO) No.249/2019 by which the learned Session Judge, (POCSO Act), Durg, (CG), whereby appellant stands convicted and sentence as under: Conviction Sentence 2 Under Section 363 of the IPC. Rigorous imprisonment for 03 years & fine of Rs.100/-, in default of payment of fine, 10 days additional RI. Under Section 366 of the IPC. Rigorous imprisonment for 05 years & fine of Rs.300/-, in default of payment of fine, 30 days additional RI. Under Section 376(2) (N) of the IPC. Rigorous imprisonment for 10 years & fine of Rs.1,000/-, in default of payment of fine, 100 days additional RI. 2. The present appeal was filed in the year 2021. No one appeared on behalf of the appellant in pre-lunch session when the matter was called out for hearing, therefore, I requested for assistance from a Counsel of the High Court Legal Services Committee. Mr. RR Soni, Advocate is nominated to assist the Court on behalf of the appellants. 3. The prosecution case, in brief, is this that on 15.05.2017 complainant (father of prosecutrix) lodged missing report to the concerned Police Station mentioning therein that her daughter went out from the house without intimating anything to her family members and did not return back. Complainant was under suspicion that some one has abducted his minor daughter (victim/prosecutrix). Based upon report, initially the Police registered FIR for offence under Section 363 of IPC against 3 unknown person. During investigation, prosecutrix was recovered from Bus Stand, PS- Nandani, Durg and her statement was recorded under Section 161 of Cr.P.C and, based upon which, accused was arrested in aforementioned crime. 4. On completion of investigation, challan/charge sheet was filed against the appellant and based upon which trial Court framed the charges against him. 5. Prosecution in order to prove its case examined total 10 witnesses. Statement of appellant (accused) was also recorded under Section 313 of CrPC in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. However, no evidence was adduced by him in his defence. 6. After hearing learned counsel for the parties and appreciating the evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellant in the manner as described in Para-1 of this judgment. Hence this appeal. 7. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the evidence available on record. As per case of prosecution, age of the prosecutrix was 15 years, 11 months and 28 days of age at the time of alleged incident, but no authentic documentary proof was filed in order to show that the prosecutrix was minor girl on the alleged 4 date. The date of birth of prosecutrix mentioned as 17.05.2001 in Dakhil Kharij Register (Ex.P-20(C) cannot be said to be conclusive as prosecution has failed to explain that on what basis said entry was made in Dakhil Kharij Panji. Prosecution did not produce the birth certificate or any other relevant document with regard to the DOB of the prosecutrix. Further, no ossification test of the prosecutrix has been conducted to ascertain her age. Learned counsel further submits that there are many contradictions and omissions in the statement of the prosecutrix, which was not considered properly by learned trial court. From the statement of prosecutrix, it reflects that there was love affair between the appellant and the prosecutrix and, therefore, she willingly went with him of her own free will. Trial Court ignored the fact that nothing has been found in the medical report of prosecutrix/victim though there is allegation of rape. Medical evidence also shows that there was no sign of forcible sexual intercourse on the body of the prosecutrix. As such, the impugned judgment of conviction recorded and sentence awarded deserves to be set-aside. 8. On the other hand, learned counsel for the State supporting the impugned judgment and submits that the prosecutrix was a minor girl on the date of incident and this fact has been duly proved by the prosecution by adducing oral and documentary evidence, therefore, her consent is irrelevant. Prosecutrix was subjected to forcible sexual intercourse by appellant and FSL report is also positive. Being so, the impugned judgment is 5 strictly in accordance with law and the present appeal is liable to be dismissed. 9. Heard learned counsel for the respective parties and perused the recorded placed on record. 10. Now this Court has to see whether the prosecution has been able to prove that on the date of incident prosecutrix was minor. PW-1/prosecutrix in her Court evidence has stated that she knows that appellant/accused, her date of birth is 17.05.2001, she studied upto class 10th.. 11. PW-3(father of prosecutrix) in his Court statement deposed that he knows the appellant/accused, her daughter was aged about 17 years and 6 months. 12. PW-6/Headmaster of the school, where the prosecutrix was studying, deposed in his Court statement that he brought the original Dakhil Kharij Register of Govt Primary School, Virebhath, Durg, Chhattisgarh (Ex.P-20(C)). On 26.06.2007, the prosecutrix was brought by her guardian to get her admitted to the school. The original Dakhil Kharij register mentions the admission number alongwith name and address of the guardian, caste, occupation, date of birth, date of admission and the class in which the prosecutrix was admitted. The date of birth of the prosecutrix is mentioned as 17.05.2001 in the Dakhil Kharij register as stated by her father. 13. It is also pertinent to mention here that prosecution also 6 produced the 8th class marksheet of the prosecutrix as Article - A/1 in which DOB of prosecutrix is mentioned as 17.05.2001. 14. In the case of P. Yuvaprakash versus State Rep. By Inspector of Police, AIR 2023 SC 3525, the Hon'ble Supreme Court observed in para 13 as under: “13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”. 15. In light of aforesaid decision of the Hon'ble Supreme Court, this Court is of the view that in the present case, there is legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was minor on the date of incident, hence, this Court is hereby affirmed the finding so 7 recorded by the learned trial Court that on the date of alleged incident, prosecutrix was minor. 16. Now coming to the point whether the appellant has committed forceful sexual intercourse with the minor prosecutrix on the pretext of marriage ? PW-1/prosecutrix in her evidence has stated that she knows the appellant/accused, she was studying in the Govt Primary School, Virebhath, Durg, where appellant was also studying. On the date of the incident, appellant took her to his relative's house in Mahasamund and confined there for three days and during that period he established physical relation with her 3-4 times on the pretext of marriage. When family members of the appellant told him that FIR has been lodged against him and asked to came back, then he brought her back from Mahasamund. 17. PW-3(father of prosecutrix) in his Court statement deposed that he knows the appellant/accused, her daughter was aged about 17 years and 6 months. On the date of alleged incident, he searched for her daughter everywhere in the village but she was not found, he already had doubts about the accused as there was a conversation going on between the accused and her daughter. He sent the person to the house of the accused and then, he came to know that the accused was also not present in his house. The Police found her daughter and brought her home back. 8 18. Looking to the evidence of the prosecutrix as well as other material/evidence available on record, particularly the fact that medical evidence (medical examination report Exhibit P-33 & FSL report Exhibit P-31, which is positive) is also supported the version of the prosecutrix, it is clear that the appellant-accused has committed sexual intercourse with minor prosecutrix. 19. It is pertinent to mention here that as it is observed above that on the date of alleged incident, prosecutrix was minor, therefore, if any consent is made by the prosecutrix, same is irrelevant. 20. For the foregoing discussion/reasons, the present appeal is hereby dismissed. Sd/- (Arvind Kumar Verma) JUDGE J/-