High Court of Chhattisgarh
Case Details
1 AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.07.21 14:04:20 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:33970 NAFR CRA No. 656 of 2004 1 – Ghoorsay, S/o Kariman Aged About 24 Years R/o Girwar Ganj, P.S. - Surajpur (C.G.). 2 - Mukul Dev S/o Niranjan, Aged About 28 Years R/o Girwarganj, P.S. Surajpur (C.G.). versus ... Appellants. 1 – The State Of Chhattisgarh through P.S. Surajpur, Chhattisgarh. ... Respondent. For Appellants For State/Respondent
Legal Reasoning
: Shri Ram Vifal Ram Rajwade, Advocate. : Shri Sanjeev Pandey, Deputy Advocate General. Hon'ble Shri Deepak Kumar Tiwari, J Judgment on Board 18/07/2025 1. The present Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 has been preferred against the judgment of conviction and order of sentence dated 28.07.2004 passed by the First Additional Sessions Judge, Surajpur, Chhattisgarh in Sessions Trial No.296/2003, whereby 2 the learned Sessions Judge has convicted and sentenced the appellants as under:- Conviction Sentence Under Section 363 of IPC RI for one year and fine of Rs.250/-, in default of payment of fine, to undergo RI for one month. Under Section 366 of IPC RI for one year and fine of Rs.250/-, in default of payment of fine, to undergo RI for one month. Both the sentences were directed to run concurrently and the sentence already undergone to be adjusted. 2. Case of prosecution, in brief, is that minor prosecutrix (PW-3), aged about 15 years, lodged an FIR (Ex.P/5) on 27.05.2002 with the police station Surajpur stating therein that on the date of incident i.e. 26.05.2002, at about 12:00 noon, she was standing outside her house, when co-accused namely Lakhan came on a motorcycle and pursuaded her to sit on the motorcycle on the pretext of arranging employment. They both went near Kalri hospital in Bishrampur and leaving the prosecutrix there, Lakhan went somewhere else. After some time, co-accused Lakhan along with appellants came to the place in a drunken state took her near Kumda nursery and made her consume liquour and thereafter, committed gang rape with her one after another. Then all of them went to a local cinema theatre and enjoyed the movie and had their dinner in a local hotel. After that, they again 3 consumed liquor and dropped the prosecutrix near her house at about 3 am. When father of the prosecutrix (PW-5) enquired as to why and where she was roaming around, she then informed the entire incident. After due investigation, charge sheet was filed against the appellants along with other co-accused namely Lakhan. 3. In order to prove its case, prosecution examined as many as 13 witnesses and exhibited 23 documents. 4. Statement of the appellants were recorded under Section 313 Cr.P.C., in which, they denied the circumstances appearing against them and pleaded innocence and false implication. 5. After hearing the parties, the learned trial Court vide impugned judgment acquitted the appellants and other co-accused person namely Lakhan of the charge under Section 376 (2) (g) of IPC, however, convicted and sentenced them under sections as mentioned in para 1 of this judgment. 6. It is pertinent to mention that co-accused Lakhan Lal preferred a separate Criminal Appeal bearing No.681/2004 which has been allowed in part by sentencing him to the period already undergone by him by the coordinate Bench vide judgment dated 04.09.2024. 7. Learned counsel for the appellant submits that prosecution has miserably failed to prove that on the date of incident prosecutrix (PW-3) was below 18 years of age. He submits that there is no material document like school register, kotwari panji or birth 4 certificate or any educational certificate containing the date of birth by which definite age of the prosecutrix can be ascertained has been filed or proved. He further submits that there is no report of ossification test/radiological examination of the victim as well. He also submits that father of the prosecutrix (PW-5) categorically admits the fact that date of birth of the prosecutrix has been recorded in the school only on the basis of assumption. He further submits that even during investigation, there is variance in the recording of age of the victim in recovery (Baramdagi) panchnama (Ex.P-4), wherein, her date of birth has been recorded as 19 years, however, the Doctor Smt. Snehlata Kujur (PW-11) who examined the victim, in particular, her teeth, in her report (Ex.P/14), opined that 28 teeth are present, according to which, age of the prosecutrix has been estimated to be between 18-26 years. Therefore, the trial Court has wrongly held that the victim is below the age of 18 years. He further submits that appellants and co-accused namely Lakhan have already been acquitted of the charge under Section 376 (2) (g) of IPC being a consenting party. He further submits that prosecutrix herself accompanied the other co-accused person namely Lakhan and the present appellants, in any manner, have not enticed or abducted the victim from the lawful custody of her parents. At last, he prays to allow the appeal and the appellants may be acquitted of the charges. 5 8. On the other hand, learned State counsel would support the impugned judgment and would submit that the same is well merited and does not call for any interference. 9. I have heard learned counsel for the parties and perused the material available on the record with utmost circumspection. 10. In order to convict a person under Sections 363 & 366 of IPC, the prosecution is required to prove that the victim is less than 18 years of age and the accused person took or enticed the victim without the consent of lawful guardian. The first ingredient relates to the age of the prosecutrix which has an extremely crucial bearing in the case. 11. In the case at hand, during the investigation, the prosecution has not collected any evidence with regard to the ossification/radiological examination, neither any kotwari register nor birth certificate or any other educational certificate containing the date of birth by which definite age of the prosecutrix can be ascertained. Even during investigation, in baramdgi panchnama (Ex.P-4), age of the victim was recorded as 19 years. Further, Dr. Snehlata Kujur (PW-11), who had examined the victim (PW-3), gave the opinion that on the basis of the teeth present 28 in number, prosecutrix’s age was more than 18 years. Father of the victim (PW-5) though deposed that on the date of incident victim was aged about 13 years 08 months, however, in the cross-examination at para 6, he categorically admits that school teacher has recorded the age of 6 the victim in the school only on the basis of assumption. Though the victim has studied upto 5th standard, however, no such certificate or dakhil kharij register has been collected or proved. Hence, from such nature of evidence, it appears that there is conflicting evidence as regards age of the victim and, therefore, the benefit of this uncertainty as to the age should go to the accused. 12. In view of the aforesaid, this Court is of the opinion that the prosecution has failed to prove that the victim was below the age of 18 years on the date of incident, therefore, the conviction recorded by the trial Court against the appellants under Sections 363 & 366 of IPC is not sustainable and the same is accordingly set aside.
Decision
13. In the result, this Criminal Appeal is allowed. 14. The appellants are reported to be on bail. They need not surrender. The bail bonds furnished by them shall remain in operation for a period of 6 months in view of the provisions contained under Section 437-A of the Cr.P.C. Sd/- (Deepak Kumar Tiwari) Judge Avinash