1 2025:CGHC:61466-DB The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full - 17-12-2025 17-12-2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 43 of 2014 Ku. Domeshwari Sahu D/o Gaya Ram Sahu Aged About 17 Years (In FIR 15 years 4 months) R/o Near Bada Talab Para Atal Chowk, Gram Dunda, Thana Tikrapara, Distt. Raipur C.G. ... Appellant/complainant versus 1 - Tili @ Trilochan Sahu S/o Kamal Sahu Aged About 19 Years R/o Near Shiv Mandir Village, Dunda, Thana Tikrapara, Distt. Raipur C.G. 2 - State Of Chhattisgarh Through Ps Tikrapara, Distt. Raipur, C.G. ... Respondents 2 For Appellant : Mr. Kunal Das, Advocate. For Respondent No.1 : Mr. CR Sahu, Advocate. For Respondent No.2 : Ms. Nand Ku. Kashyap, Panel Lawyer Hon'ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Amitendra Kishore Prasad, JJ Judgment on Board (17th December, 2025) Per Rajani Dubey, J Challenge in this appeal is to the legality and validity of the judgment dated 28.1.2013 passed by 6th Additional Sessions Judge, Raipur in ST No.114/2012 acquitting respondent No.1/accused of the charges under Sections 376 and 450 of IPC. 02. Case of the prosecution, in brief, is that on the date of incident when parents of the prosecutrix had gone to agricultural field and she was at home with her younger brother and grand-father, at around 10- 11 pm the accused entered her room and saying that he would marry her, asked her for making physical relation with him. However, despite her refusal and resistance, he committed forcible sexual intercourse with her. Thereafter, he again came to her house after some days and committed rape on her as a result of which she got pregnant by seven months. When she asked him to marry her, he refused and then she informed about the whole incident to her mother. In the village panchayat also the accused refused to marry her. Hence on report 3 being made, offence under Section 376 of IPC was registered against the accused. 03. During investigation, medical examination of the prosecutrix as also of the accused was done; progress report of the prosecutrix was seized as per Ex.P/5; underwear of the prosecutrix and her vaginal slides were seized, spot map was prepared; underwear of the accused was also seized and statements of the witnesses were recorded. After completing the investigation, the police submitted charge sheet under Sections 450 and 376 of IPC against the accused before the concerned jurisdictional Magistrate followed by framing of charges accordingly by learned trial Court. The accused abjured his guilt and prayed for trial. 04. In order to substantiate its case the prosecution examined 14 witnesses in all. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In his defence he examined one Gyanik Das Manikpuri as DW-1. 05. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court acquitted the accused of all the charges by the impugned judgment. Hence this appeal. 4 06. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the material available on record. Learned trial Court has committed a grave illegality in holding the prosecutrix a consenting party. Section 90 of IPC clearly says that if consent is given under fear of injury or misconception of fact, such consent cannot be construed to be a valid consent. In the present case, the consent, if any, given was under misconception of fact and as such, it was not a valid consent. Further, the trial Court failed to properly appreciate the evidence of Dr. DK Tandon (PW-12) who opined the age of the prosecutrix below 18 years vide Ex.P/21. Learned trial court also failed to consider the evidence of PW-10 Ramesh Mishra who deposed that in the village meeting, the accused admitted physical relation with the prosecutrix and denied marriage with her. Learned trial court also did not accept the application filed under Section 91 of CrPC with copy of birth report of the prosecutrix certified by Kotwar wherein her date of birth is mentioned as 8.1.1996. Thus, in view of the overall evidence on record, it is clear that the learned trial Court committed illegality in acquitting the accused of the charges u/s 376 and 450 of IPC, therefore, the impugned judgment is liable to be set aside and the accused be held guilty for aforesaid offence. 07. On the other hand, learned counsel appearing for the respondent No.1/accused submits that in view of oral and documentary evidence 5 on record, the learned trial Court has rightly acquitted the accused of all the charges because the prosecution utterly failed to prove that the prosecutrix was minor on the date of incident and the evidence establishes that she was a consenting party to the act of the accused. Therefore, the instant appeal being without any substance is liable to be dismissed. 08. Learned counsel appearing for the State has duly assisted the Court. 09. Heard learned counsel for the parties and perused the material available on record. 10. It is clear from the record of learned trial court that the accused was charged under Sections 376 and 450 of IPC and after appreciation of oral and documentary evidence, learned trial Court acquitted him of all the charges on the ground that the prosecution failed to prove that the prosecutrix was below 16 years of age on the date of incident and that she was a consenting party to the act of the accused. 11. PW-1 prosecutrix states that the police seized her progress report of Middle School as per seizure memo Ex.P/5 and the progress report is Article A. As per this progress report, date of birth of the prosecutrix is 8.10.1996. However, the prosecution did not examine any school teacher or principal and also did not file any Dakhil-Kharij 6 register and not examine the author who made entry regarding date of birth of the prosecutrix. 12. PW-12 Dr. DK Tandon conducted ossification test of the prosecutrix to ascertain her age. After ossification test, he opined that the prosecutrix is below 18 years of age and gave report Ex.P/21. However, in cross-examination he admits that there is variation of two years on the estimated age. 13. In view of above, it is thus clear that the prosecution has not adduced any cogent and legally admissible evidence which could prove beyond reasonable doubt that the prosecutrix was below 16 years of age on the date of incident. Learned trial court also after minute appreciation of oral and documentary evidence found that the prosecution has failed to prove the fact that she was below 16 years of age at the relevant time. We find no illegality or infirmity in the said finding. 14. Now we proceed to consider whether the prosecutrix was a consenting party to the act of the accused or it was a forcible sexual intercourse by the accused. 15. PW-1 prosecutrix states that the on the date of incident the accused came to her house, proposed her for marriage and when she refused, he committed forcible sexual intercourse with her. She states that after this incident, the accused used to come to her house after 7 every 2-4 days at night and commit rape on her. When she became pregnant by seven months, she asked the accused to marry her but he refused, so she informed about the incident to her mother. Thereafter, her mother went to the house of the accused and he again refused to marry the prosecutrix. She states that on 28th April, 2012 she gave birth to a male child. She states that in the village panchayat as also in the meeting of Sahu Community held at Mahadev Ghat, Raipur, the accused refused to marry her and thereafter only she went with her parents to police station Tikrapara and lodged report Ex.P.1 against the accused which bears her signature from A to A part. 16. From the FIR (Ex.P/1) it is clear that the same was lodged after 8 months of the incident and the prosecutrix admitted that when she became pregnant, a village meeting was called where the accused refused to marry her and then only a report was lodged against him. In cross-examination she admits that in the village meeting, it was alleged that she has illicit relation with one another person namely Sunil Sahu. In para 15 she admits that in the Sahu Samaj meeting held at Mahadev Ghat, Raipur, the accused referred the name of Sunil Sahu and in the said meeting, one Nande Sahu, MLA was also present. She states that in the said meeting the accused denied paternity of her child. She also admits that for about 6-7 months she did not inform anyone at her home about the incident. 17. PW-2 father of the prosecutrix and PW-5 grand father of the 8 prosecutrix supported the statement of the prosecutrix and stated that when she became pregnant by 6-7 months, she informed about her pregnancy from the accused, on which a village meeting was convened where the accused refused to marry her and thereafter, in Sahu Samaj meeting also the accused refused to marry her. Thereafter only a report was lodged against the accused. 18. PW-4 Premlal Sahu, PW-6 Vishnuram Sahu and PW-8 Janak Prasad Sahu, witnesses to the village panchayat, state that in the village panchayat the prosecutrix disclosed that it is the accused who made forcible sexual intercourse with her and made her pregnant but the accused denied the allegation. 19. In this case, no DNA test was conducted by the prosecution to ascertain the paternity of the child of the prosecutrix. Looking to the manner in which the incident took place, the conduct of the prosecutrix during the incident and subsequent thereto, it can safely be inferred that whatever act was committed by the accused, she was a consenting party to the said act. Being so, the finding of learned trial court to this effect cannot be faulted with. Even otherwise, it is settled law that scope of interference in appeal against acquittal is very limited and the finding of acquittal can be revered only when it is found that such finding is totally perverse and arrived at by ignoring the relevant material and considering the irrelevant ones, and if on the basis of evidence on record, two views are possible, the one favouring the 9 accused should be resorted to. 20. The Hon’ble Apex Court in its judgment dated 12.02.2024 (Criminal Appeal No 1162 of 2011) passed in Mallappa and Ors. Versus State of Karnataka, has held in para 36 as under:- “36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:- “(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive--inclusive of all evidence, oral and documentary; (ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge; (iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed; (iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal; (v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts; (vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.” 21. Keeping in view the aforesaid judgment, considering the 10 evidence of the prosecutrix and other witnesses including the medical evidence, it is crystal clear that the prosecution has utterly failed to prove that the prosecutrix was minor on the date of incident and the accused committed forcible sexual intercourse with her. Rather the evidence on record establishes that she was a consenting party. We find no good reason to reverse the finding of acquittal recorded by the learned trial court as the same is based on proper appreciation of oral and documentary evidence adduced by the prosecution. 22. In the result, the appeal being sans merits is liable to be dismissed and is, accordingly, dismissed. Sd/ Sd/ (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2025.12.17 17:17:16 +0530