The prosecution failed to prove the prosecutrix's minority, and her conduct indicated consent, leading to the acquittal of the appellant.

CAV Judgment

This appeal is directed against the judgment of conviction and order of sentence dated 21.8.2003 passed by the Sessions Judge, Rajnandgaon in ST No.48/2003 whereby the appellant stands convicted and sentenced as under:

All the sentences were directed to run concurrently.

02. Case of the prosecution, in brief, is that the appellant is a distant relative Kaka (uncle) of the prosecutrix, a student of class-X, and he used to frequently visit her house and say that he is in love with her and wants to marry her, to which she would not react and also could not complain to her parents out of hesitation. On 16.2.2003 while the prosecutrix was going to attend tuition class, on the way the appellant met her and asked her to elope with him right now. On this, when the prosecutrix refused, he threatened her of being defamed in the society and get her kidnapped. She got frightened and then the accused/appellant took her to Bailapasra Bus Stand and from there to Nagpur by bus. Thereafter, she was taken to Kachhipura where they resided in a rented house from 16.2.2003 to 12.3.2003 and he committed rape on her repeatedly despite her resistance. However, on much insistence of the prosecutrix, he brought her back to his house at Shanti Nagar, from where she ran away to her parents and disclosed the whole incident to them which led to registration of FIR under Sections 366, 366 and 376 of IPC against the accused.

03. During investigation, medical examination of the prosecutrix and the accused were got done, her school progress card was seized, statements of the witnesses were recorded and after completion of usual investigation, charge sheet under Sections 363, 366 & 376 of IPC was filed. Learned trial Court framed charges under Section 363, 366 and 376(1) of IPC against the accused which were denied by him and he prayed for trial.

04. In order to prove its case, the prosecution examined 11 witnesses in all. Statement of the accused was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication.

In his defence, he examined one witness.

05. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, convicted and sentenced the appellant as mentioned in para 1 of this judgment.

Hence this appeal.

06. Learned counsel for the accused/appellant submits that the impugned judgment passed against the appellant is per se illegal and contrary to the material available on record. Learned trial Court has not considered the fact that on the date of incident, the prosecutrix was aged 16 years, 9 months and 15 days as per school certificate and no radiological test was conducted despite advice of the doctor for determination of her age. Even the school certificate was not certified by any authority. According to PW-2 mother of the prosecutrix, age of the prosecutrix is more than 16 years. The case is based solely on the evidence of interested witnesses and there is no independent witness. Learned trial Court has failed to see that the prosecutrix was a consenting party as she lived with the appellant for about a month in a rented accommodation at Kachhipura, Nagpur and when they returned to Rajnandgaon, she first went to the house of the accused. Learned trial Court did not appreciate the oral and documentary evidence in its true perspective and thus committed a grave illegality in holding the appellant guilty of the aforesaid offence. Therefore, the impugned judgment is liable to be set aside.

Reliance is placed on the judgment dated 18.4.2006 of this Court in CRA No.1139/1989 in the case of Afzal Ajmi Vs. State of Madhya Pradesh (Now Chhattisgarh) and the judgment dated 18.11.2021 of the Hon'ble Supreme Court in C