1 2025:CGHC:58907 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 08.09.2025 04.12.2025 -- .12.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on: 08.09.2025 Judgment delivered on: 04.12.2025 CRA No. 451 of 2008 1 – Manish David, S/o Johan Mical David Aged about 30 years, R/o Village Milan Compound Doundi 2- Ekta Parisar, Qr. No. E/143, Durg 3- MIG 1/463, HUDCO, Bhilai, District- Durg (C.G.) ... Appellant versus 1 - State of Chhattisgarh through Station House Officer, Police Station- Mohan Nagar, Durg District- Durg (C.G.). ... Respondent(s) 2 For Appellant : Ms. Hamida Siddiqui, Advocate For Respondent(s)/State : Ms. N.K. Kashyap, P.L. Hon’ble Smt. Justice Rajani Dubey C A V Judgment 1. The present appeal under Section 374(2) of the Code of Criminal Procedure has been filed against the judgment of conviction and order of sentence dated 28.03.2008 passed by learned XI Additional Sessions Judge (FTC), Durg (C.G.) in Sessions Trial No. 116/2007, whereby the trial Court has convicted the appellant and sentenced him as under:- Conviction Sentence Under Section 376 of Indian Penal Code R.I. for 10 years and to pay fine of Rs. 50,000/-, in default of payment of fine to undergo additional R.I. for one year 2. The prosecution case, in short, is that the victim, aged about 17 years, was employed as a utensil cleaner and cook at the accused’s residence situated at Ekta Premises, Durg. At that time, the wife of the accused was working at Daundi (Kwalangpur) and used to visit the said premises once a week where his husband Manish David resided. It is alleged that the accused lured the victim on the pretext of marriage and under this pretext, he established physical relations with her and continued to maintain sexual relations with her for a period of 8–9 months. As a 3 consequence of this, the victim conceived. When the victim informed the accused about her pregnancy and insisted upon marriage, the accused allegedly refused to marry and told her that instead he would arrange her marriage with another boy. The victim thereafter disclosed the incident to her mother, her brother and neighbours. Subsequently, the victim along with her mother approached Police Station Mohan Nagar, Durg and lodged a report. Based on the said report, Crime No. 1/2007 was registered for offences under Sections 363 and 376 of the IPC and investigation was carried out. During the investigation, the victim was medically examined and her clothes were seized. The accused was also arrested, his clothes were seized and his medical examination was conducted. The medical report of the victim revealed that she was carrying a pregnancy of approximately 28 to 30 weeks. Upon completion of the investigation, a charge sheet was filed before the competent court and the matter was committed for trial. Learned trial Court framed charge under Section 376 of IPC against the appellant, to which the accused pleaded not guilty and claimed to be tried. 3. To establish the guilt of the accused/appellant, the prosecution examined 10 witnesses. The statement of the accused/appellant was recorded under Section 313 Cr.P.C., wherein he denied all incriminating circumstances asserting innocence and alleging false implication. However, he did not adduce any evidence in defence. 4 4. The learned trial Court upon due appreciation of the oral and documentary evidence on record found the prosecution case trustworthy and by judgment dated 28.03.2008 convicted and sentenced the appellant as detailed in paragraph 1 of the judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the learned trial Court failed to appreciate that the prosecutrix was a major and was in a consensual sexual relationship with the appellant for 8–9 months, fully aware of his marital status. The material on record clearly indicates continuity of the relationship, which negates the allegation of inducement or coercion. She further submits that present case does not fall within the ambit of Section 376 of the Indian Penal Code, and in the given circumstances, the sentence imposed upon the appellant is excessive, harsh and unwarranted. The conviction recorded by the learned trial Court is not supported by the evidence available on record and relevant contradictions and inconsistencies have been overlooked. The judgment, the findings contained therein, and the sentence awarded to the appellant are contrary to law and deserve to be set aside. Reliance has been placed on the judgment of this Court dated 25.11.2024 passed in CRA No. 540 of 2020 [Bhuvan Verma Vs. State of Chhattisgarh; 2024 CGHC 45998 DB]. 6. On the other hand, learned State counsel supports the impugned judgment and submits that the findings recorded by the learned 5 trial Court are fully justified and based on proper appreciation of the evidence on record. It is contended that the victim was below 18 years of age at the time of the incident, and therefore her consent, even if assumed, is of no legal consequence in view of Section 375 IPC. Hence, the plea of consensual relationship advanced by the appellant is wholly untenable. It is further submitted that the evidence of the prosecutrix, coupled with the medical and other corroborative material, clearly establishes the commission of the offence. The learned trial Court has rightly relied upon the consistent and trustworthy testimony of the prosecutrix supported by medical evidence showing pregnancy of 28–30 weeks, which firmly connects the appellant with the offence. Thus, the impugned judgment is well-founded and warrants no interference by this Court. 7. I have heard learned counsel for the parties and carefully examined the record. 8. It is clear from the record of the learned trial Court that charge under Section 376 of the IPC was framed against the appellant and after appreciation of the oral and documentary evidence, the appellant was convicted for the said offence. 9. As per the prosecution, at the time of incident, prosecutrix was aged about 17 years and accused committed sexual intercourse with her on the pretext of marriage. 10. To determine the age of the prosecutrix, the prosecution 6 conducted an ossification test. 11. Dr. A.K. Sahu (P.W.-10) stated that he conducted an X-ray of the prosecutrix and as per the X-ray report, her age was found to be approximately 18–19 years. He submitted his report in this regard vide Ex. P/18. 12. As no birth certificate or any other document regarding the age of the prosecutrix was filed by the prosecution, having regard to the X-ray report, it is evident that on the date of the incident, the prosecutrix was approximately 18–19 years old. Therefore, the prosecution has failed to prove that the prosecutrix was a minor at the time of the incident. 13. The prosecutrix (P.W.-1) deposed that she was employed as a maid in the house of the appellant. She stated that the accused told her that he had divorced his wife and under the pretext of marriage, had sexual intercourse with her, which resulted in her pregnancy. She gave birth to a baby girl. Upon informing the accused of her pregnancy, he refused to marry her. In her cross-examination, she admitted that in addition to her employment with the accused she had also worked for another man. The prosecutrix stated that she informed her parents about her pregnancy only after seven months. She further stated that she had never met the wife of the accused. She admitted that the accused had promised to provide her with money and when he 7 failed to do so, she filed a complaint against him. It was also admitted that she did not disclose the incident to anyone else except her sister-in-law. In para 11, she admitted that the accused had given her Rs. 350/- for work. She further admitted that during her examination- in-chief before the court she stated for the first time that the accused had committed sexual intercourse with her under the pretext of marriage. 14. The mother of the prosecutrix (P.W.-2) stated that she does not know the accused. She further deposed that upon enquiring about her daughter's pregnancy, the prosecutrix informed her that she had been working in the house of the accused and that the accused was responsible for her pregnancy. Thereafter, they lodged the report against the appellant. Prosecution declared her hostile and cross-examined her then she admitted her police statement. In her cross-examination, she admitted that her daughter (prosecutrix) was residing with her. She further stated that she had no prior knowledge of the accused and that she came to know of the accused only when her daughter identified him in Court. 15. P.N. Tiwari (P.W.–3) did not support the prosecution case. He only stated that the accused was residing in his house as a tenant and that he had no knowledge about as to who used to visit the house of the accused for work. 8 As his testimony did not support the prosecution, he was declared hostile. During cross-examination, he denied all the suggestions of the prosecution. 16. Bhagwatin (P.W.–5) stated in her examination-in-chief that she knew the prosecutrix. She deposed that the prosecutrix had only told her that she was feeling heaviness in her stomach and had not disclosed anything further. Since her statement was not favourable to the prosecution, she was declared hostile. In cross-examination, she denied all the suggestions of the prosecution. 17. Dr. Smt. Ujjwala Dewangan (P.W.–6) examined the prosecutrix and opined that she was approximately seven months pregnant. She gave her report vide Ex. P/8 in this regard. 18. Pyari Sahu (P.W.–8), a social worker, supported the version given by the prosecutrix. She stated that the prosecutrix had informed her that she was about five months pregnant due to the acts of the accused. After learning about the pregnancy of the prosecutrix, the accused was called and questioned. During this enquiry, the accused stated in her presence that it did not matter how much money it would cost and that the child should be aborted. In her cross-examination, she did not mention in her police statement (Ex.D/1) that as to when prosecutrix was questioned, she allegedly stated that wife of Manish David works in Daundi (Kwalangpur). She does not know as to how the police recorded 9 the same. 19. Upon perusal of Ex.D/1, it is evident that these allegations are entirely absent and a close examination of the statements of all witnesses further reveals that the prosecutrix admitted that she would not have lodged the complaint against the appellant if he had given her money; moreover, no DNA test was conducted by the prosecution to substantiate the allegations. 20. This Court in the matter of Bhuvan Verma (supra) observed and held in para 20 as under:- 20. The Hon'ble Supreme Court in the matter of Kaini Rajan (supra) held in paras 15 & 16 of its judgment as under: "15. In Ramdas V. State of Maharashtra, (2007) 2 SCC 170 this Court held that. (SCC p. 179, para 23) "23.... the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity." 16. Vijayan Vs. State of Kerala, (2008) 14 SCC 763 was a case where the complaint was made by the prosecutrix after the alleged commission of rape on her by the accused. At the time of making the case, the prosecutrix was pregnant for about seven months. This Court did not place reliance on the sole testimony of the prosecutrix. The Court noticed 10 that flaw that no DNA test was conducted to find out whether the child was born out of the said incident and the accused was responsible for the said child." 21. In view of the foregoing discussion, this Court is of the considered opinion that the prosecution has failed to establish the alleged charge against the appellant beyond reasonable doubt. The age of the prosecutrix has not been proved to be below 18 years; her testimony suffers from material omissions and contradictions; witnesses did not support the prosecution case and no DNA test or other reliable scientific evidence was brought on record to link the appellant with the pregnancy. In the absence of credible and trustworthy evidence, it would be wholly unsafe to sustain the conviction of the appellant. Accordingly, the appellant is entitled to the benefit of doubt. 22. In the result, the appeal is allowed. The impugned judgment is hereby set aside and consequently, the appellant is acquitted of the charge under Section 376 of IPC. 23. Appellant is reported to be on bail. Keeping in view the provisions of Section 437-A of Cr.P.C. (481 of the B.N.S.S.), the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, 11 the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 24. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV