The prosecution must prove charges beyond reasonable doubt, and the lack of evidence can result in acquittal.

JUDGMENT :

Ramesh Sinha, J.

1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973, is directed against the judgment dated 24.03.2023 passed by the Additional Sessions Judge F.T.S.C. (POSCO), Korba, District – Korba (C.G.), in Special Case (POCSO) Case No.45/2021, whereby the learned Additional Sessions Judge has convicted the appellant for offences punishable under Sections 365 and 376(2)(n) of the Indian Penal Code (hereinafter called as ‘IPC’) and sentenced to undergo RI for 7 years and fine of Rs.500/-, in default of payment of fine to further undergo RI for 6 months and imprisonment for life (which means imprisonment for the remainder of his natural life) and fine of Rs.500/-, in default of payment of fine to further undergo RI for six months.

2. Case of the prosecution, in brief, is that the victim/prosecutrix (PW-1) lodged the FIR (Ex.P-21) on 22.10.2018 at Police Station Kotwali stating inter-alia that on 19.10.2018 at about 10 P.M. she was returning back to her house alongwith her grand mother (PW-3) and other children, it is alleged that her grandmother was walking in front of them and they were walking behind her, then only friend of her uncle i.e. accused came there and told her that her uncle is calling her and on refusal by the prosecutrix, he caught her hand and get her sit on his back in a motor-cycle and took her to the house of Pappu situated at Atal Awas, Kharmora and kept her in a room and thereafter against will and consent of the prosecutrix, he committed forcibly intercourse twice on false pretext of marriage. It is further alleged that next night also, the accused/appellant committed forcibly intercourse against her will so many times. It is also alleged that on 21.10.2018 wife of the accused/appellant, brother and sister-in-law came there and abused her by filthy language and thereafter assaulted her, due to which, she sustained injuries over face and back of the body. It is further alleged that later on at about 10 A.M. uncle of the prosecutrix alongwith his friend came there and took the prosecutrix to the house. On the basis of the FIR, an offence bearing Crime No.813/2018 was registered for the offences punishable under Sections 363, 366-A, 376, 323, 342, 506/34 of the IPC, Section 6 of Protection of Children from Sexual Offences Act, 2012 and Section 3(1)(12), 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by Raghunandan Prasad Sharma and investigation was initiated.

3. During the course of investigation, police sent the prosecutrix to Primary Health Centre, Korba for primary examination and received two slides in a sealed envelope. Statements of the witnesses were recorded and the accused/appellant and other co-accused persons were arrested and articles were seized. Statement of the prosecutrix under Section 164 CrPC (Ex.P-3) was recorded before the learned Judicial Magistrate First Class, Korba, District – Korba (C.G.). After completion of the entire investigation, charge-sheet was filed before the Special Judge (SC/ST Act), Korba for trial. The accused/appellant abjured the guilt and entered into defence.

4. In order to bring home the offence, the prosecution examined as many as 15 prosecution witnesses and exhibited 22 documents Exs.P-1 to P-22. Statement of the accused/appellant was recorded under Section 313 of the CrPC in which he denied guilt. However, he examined none in his defence but exhibited Ex.D-1 in his support.

5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 24.03.2023, convicted him for offences under Sections 365 and 376(2)(n) of the IPC and sentenced as aforementioned, against which, this criminal appeal has been preferred by the appellant herein.

6. Mr.Dharmesh Shrivastava, learned counsel for the appellant would submit that the learned trial Court erred in convicting the appellant because as per the prosecution case itself the prosecutrix/victim minor