IMPORTANT POINT
The prosecution failed to prove the age of the prosecutrix was below 18 years and that the appellant committed forcible sexual intercourse, leading to the acquittal of the appellant.

JUDGMENT :

RAJANI DUBEY, J.

1. The present appeal under Section 374(2) of Code of Criminal Procedure has been filed against the judgment of conviction and order of sentence dated 05.04.2003 passed by 1st Additional Sessions Judge Raipur, District- Raipur (C.G.) in Sessions Trial No. 110/2001 whereby, the trial court has convicted the appellant and sentenced him as under:-

2. Facts of the case in nut shell are that the prosecutrix was residing at Village Bharwadih with her parents and was studying in 8th class. The appellant/accused was also residing in the same village and was secretary of the Gram Panchayat of Bharwadih and he was married. Two months prior to 07.10.2000, the appellant used to talk to the prosecutrix and on the false pretext of marriage, he took the prosecutrix with him to various places and committed sexual intercourse with her. Thereafter, the matter was reported to the police station and FIR bearing Crime No. 192/2000 was registered for the offence under Sections 363, 366 & 376 of IPC. After completion of necessary formalities, charges for the offence under Sections 363, 366, 368, 376/34 of IPC were framed against the appellant and other co-accused persons before the concerned trial Court. Thereafter the matter was committed to the Sessions Court.

3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 14 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. In his defence, he examined one Bhagirathi Verma as D.W.-1.

4. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 05.04.2003, finding evidence adduced by the prosecution trustworthy, convicted the the appellant under Sections 363, 366 & 376 of IPC and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal.

5. Learned counsel for the appellant submits that the impugned judgment passed by the trial Court is arbitrary, illegal and contrary to the law applicable to the facts and circumstances of the case. Learned trial Court ought to have seen that no document regarding the age of the prosecutrix was filed or proved by the prosecution. Learned trial Court erred in convicting the appellant particularly when the doctor did not give any definite opinion with respect to commission of sexual intercourse. Learned trial Court erred in disbelieving the defence witness Bhagirathi Verma. She further submits that the learned trial Court erred in not holding that the prosecutrix is a consenting party as she went along with the appellant and never objected therefore erred in convicting the appellant.

Learned trial Court on the basis of the material available on record held conviction of the appellant which is not sustainable in the eyes of law and also looking to the material available on record, appellant should have been given the benefit of doubt. Prosecution was completely failed to prove its case against the appellant. Therefore, the impugned judgment may be set aside.

6. Reliance has been placed on this Court’s judgment dated 06.12.2023 in the matter of Kishan Dehariya Vs. State of Chhattisgarh passed in CRA No. 559 of 2022.

7. On the other hand, learned State counsel supports the impugned judgment and submits that the learned trial Court rightly appreciated the oral and documentary evidence and convicted the appellant accordingly. Hence, the impugned judgment is well merited and does not call for any interference by this Court.

8. Heard learned counsel for the parties and perused the material available on record.

9. It is clear from the record of trial Court that the learned trial Co