1 2025:CGHC:38120 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 822 of 2004 Rangeela Dewar S/o. Tikam Dewar, Aged about 25 years, R/o. Village Bhendri, PS -Rajim Tahsil & District Raipur (Chhattisgarh). ---- Appellant VERSUS State of Chhattisgarh Through: P.S. Mahasamund, Distt. Mahasamund (C.G.). ---- Respondent CRA No. 945 of 2004 Kadiram Dewar S/o. Sajanu Dewar, Aged about 30 years, R/o. Idgahbhata, Police Station and Tahsil Mahasamund, District Mahasamund (C.G.) ---- Appellant VERSUS State of Chhattisgarh Through: P.S. Mahasamund, Distt. Mahasamund (C.G.). ---- Respondent CRA No. 792 of 2004 Smt. Dewarheen Bai, aged about 27 years, W/o kadi Ram Dewar, Occupation: House wife, R/o. Idgahabhatha, Police Station & Tahsil Mahasamund, District Mahasamund, Chhattisgarh ---- Appellant 2 VERSUS State of Chhattisgarh, Through Police Station Mahasamund, District Mahsamund, Chhattisgarh. ---- Respondent --------------------------------------------------------------------------------------------- For the Appellants : Mr. Rishab Gupta & Mr. Arpan Verma, Advocate on behalf of Mr. Manoj Paranjpe, Advocate. For the State : Mr. Satish Gupta, GA. --------------------------------------------------------------------------------------------- Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 01.08.2025. 1. Since the above appeals are arising out of same incident, they are being heard and decided together by this common order. 2. The above appeals have been preferred against the judgment of conviction and order of sentence dated 08.09.2004, passed by learned Additional Session Judge, Mahasamund, (CG) in Session Trial No.143/2004, whereby appellants stand convicted and sentence as under: Conviction Sentence In CRA No.822/2004 Under Section 368 of the IPC. Rigorous imprisonment for 7 years & fine of Rs.200/-, in default of payment of fine, 01 month additional RI. In CRA No.945 /2004 Under Section 363, 366, 376(1) r/w 34 of the IPC. Rigorous imprisonment for 7 years & fine of Rs.200/- Rigorous imprisonment for 10 3 years & fine of Rs.300/- In default of payment of fine, 1 & ½ month additional RI. In CRA No. 792 /2004 Under Section 363, 366/34 of the IPC. Rigorous imprisonment for 07 years & fine of Rs.200/-, in default of payment of fine, 01 month additional RI. 3. The prosecution case, in brief, is this that a report/complaint was made by father of prosecutrix (PW-2) on the allegations that on 13.03.2004, accused-appellant/Kadiram Dwar with the help of his wife (appellant/Smt. Dewarheen Bai) enticed away PW-1/minor victim/prosecutrix (aged about 14 year) from the lawful guardianship. Based upon the report, FIR was registered and during the investigation, prosecutrix was recovered from the house of accused-appellant/Rangeela Dewar. Her statement was recorded under section 161 of Cr.PC, based upon which, alleged offence/crime has been registered against the appellants/accused. It has also been alleged that accused- appellant/Kadiram Dewar has committed forceful sexual intercourse with minor victim. 4. On completion of investigation, charge-sheet was filed against the appellants and based upon which trial Court framed the charges against them. 5. Prosecution in order to prove its case examined total 13 4 witnesses. Statements of accused persons were also recorded under Section 313 of CrPC in which they denied all incriminating evidence available against them, pleaded innocence and false implication. 6. After completion of trial, the trial Court vide impugned judgment convicted and sentenced appellants herein in the manner as described above. 7. Learned counsel for the appellants submits that the impugned judgment is per se illegal and contrary to the evidence available on record. The trial Court convicted the appellants only on the basis of statement/evidence of PW-1/prosecutrix and her father & mother (PW-2 & PW-3), who are interested witnesses and their evidence are not reliable. There are many contradictions and omissions in the statements/evidence of the prosecutrix and her father and mother, which was not considered properly by learned trial Court. As per case of prosecution, age of the prosecutrix was about 14 years at the time of alleged incident, but no authentic documentary proof was filed in order to show that the prosecutrix was a minor girl on the alleged date. Prosecution did not produce the birth certificate or any other relevant document with regard to DOB of prosecutrix. From the statement of prosecutrix, it reflects that prosecutrix was a consenting party as she willingly went with appellant/Kadiram Dewan and lived with him for a month in house of 5 appellant/Rangeela without any protest. Further, there is no any eye-witness in respect of the abduction of the prosecutrix by the appellant/accused. 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. 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. Being so, the impugned judgment is 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. Only on the basis of presumption, PW-2/father of prosecutrix 6 has made statement that prosecutrix was aged about 14 years on the date of alleged incident. Even prosecutrix in her evidence did not state specifically anything with regard to her date of birth. Prosecution could not produce the birth certificate, school certificate or any other relevant document regarding DOB of prosecutrix. Though, as per Ex.P-17 (x-ray report of prosecutrix) and statement of PW-13/Dr. Alka, aged of the prosecutrix was 15 years, but it is well settled law that age of the victim on the basis of Radiological report plus/minus (+ /-) of 02 years may be accepted, if 02 years be added in the age of victim (15 years) it comes to 17 years. The date of alleged incident was of 13.03.2004 and at that time there was no amendment in the Indian Penal Code. Clause sixthly of Section 375 of IPC dealt with a man is said to commit rape with or without her consent, when she is under eighteen years of age. Prosecution has failed to prove the age of the victim as per provision of the Juvenile Justice (Care and Protection of Children) Act, 2015. Thus, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the age of the victim and further it is also not proved that prosecutrix was under 16 years of age on the date of alleged incident. 11. Now coming to the point whether the appellant has committed rape with the prosecutrix ? PW-1/prosecutrix in her evidence has stated that on the date of alleged incident, appellants 7 (Kadiram Dewar & Dewarheen Bai) took her to the house of appellant (Rangeela Dewar) at village -Bhendri where they have detained her about one month and during that period appellant/Kadiram committed forceful sexual intercourse with her on many occasion, however, she admitted that her parents came to village Bhendri to get her back, but she did not went back with her parents on account of threat given by the accused. She also admitted that when her mother asked her to come back with her, she kept silent. PW-1 also stated in her evidence that during period of one month at village-Bhendri, she went to answer the nature call with accused/Dewarheen Bai and also see the villagers but did not say anything to them about her abduction due to threat. 12. PW-2/father of victim in his evidence has stated that prior to the alleged incident, victim used to visit the house of the accused/Kadiram Dewar. He further stated that in the police station victim has stating to the Police Official that accused/Kadiram is her husband and she wants to live with him and she also denied to go back with her house. 13. PW-3/mother of victim in her evidence has stated that when she alongwith her husband (PW-2) went to the village -Bhendri for getting the victim back, they saw that victim has wearing the Saree, putting the vermillion (स㠿न⡍द♂र) on her forehead and also wearing the mangalsutra. 8 14. PW-4/uncle of the victim in his evidence has stated that victim has denied to go back with her house with her parents. 15. Looking to the above evidence, it is clear that on the date of incident the prosecutrix had gone with accused with her own free will and stayed with her at village -Bhendri about one month without raising any alarm and further looking to the contradiction and exaggeration in the evidence of the prosecutrix, it is clear that the prosecutrix was a consenting party in this case to the act of the accused person. 16. Since this Court has already observed that the prosecution has failed to prove that on the date of incident she was minor, in the given set of facts and circumstances of the case, no offence of rape or abduction is made out against the appellant. 17. In the result, the appeal is allowed and the impugned judgment dated 08.09.2004 is hereby set aside. The appellants are acquitted from the aforementioned offence/crime. 18. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Arvind Kumar Verma) JUDGE J/-