NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 326 of 2004 Sanjoo @ Sanjeev Kumar S/o Damodar Sahu, Occupation- Driver, aged about 21 years, resident of Old Market Dalli Rajhara, Distt. Durg (C.G.)

---- Appellant Versus State Of Chhattisgarh --- Respondent --------------------------------------------------------------------------------------------------------------

For Appellant : Mr. Praveen Dhurandhar, Advocate For State/Respondent : Mr. Kishan Lal Sahu, Dy. G.A.

Single Bench : Hon'ble Shri Justic e Sanjay S. Agrawa l Order on Board

12.02.2024

1. This appeal has been preferred by the accused under Section 374 (2) of the Code of Criminal Procedure, 1973 questioning the legality and propriety of the judgment of conviction and order of sentence dated 23/02/2004 passed by Special Judge, SC/ST Act, Bastar at place Jagdalpur in Sessions Trial No.481/2003, whereby the appellant has been convicted and sentenced as under:-

2. Briefly stated the facts of the case are that on 26/01/2003, a written report (Ex.P-3) was lodged by the father of the prosecutrix before the Police Station- Narayanpur by submitting inter alia that in the intervening night of 24^th and 25^th of January, 2003, his daughter was taken by the appellant towards Kondagaon. Based upon the said information, an FIR (Ex.P-4) was registered on 26/01/2003 against the appellant for the offence punishable under Sections 363 and 366 of IPC read with Section 120-B of IPC and during the investigation, the concerned Police Station has obtained the “Dakhil Kharij Register” (Ex.P-2C) from the Principal of the Government Girls Higher secondary School, Narayanpur and that by recording the statement of the prosecutrix, her father and others’ have submitted the charge-sheet before the concerned Court for the offence punishable under Sections 363, 366 and 376 read with Section 120-B of IPC.

3. The concerned Court has framed the charges with regard to the aforesaid offence and the offence, so framed has been denied by the appellant .

4. In order to bring home the guilt of the appellant, the prosecution has examined as many as 9 witnesses, while none was examined by the appellant in rebuttal.

5. After considering the evidence led by the prosecution, the appellant has found to be guilty of the alleged offence, and accordingly, he has been convicted and sentenced by the learned trial Court for the alleged offence as mentioned here in above. Being aggrieved, the appellant has preferred this appeal.

6. Learned Counsel appearing for the appellant while inviting attention to the statement of father of the prosecutrix submits that the prosecutrix was major at the relevant point of time, however, without taking note of his statement in its proper manner, the trial Court has committed an illegality in arriving to a conclusion that the prosecutrix was minor at the relevant point of time while placing its reliance upon the “Dakhil Kharij Register” (Ex.P-2C). It is contended further that though the date of birth of the prosecutrix was mentioned therein as 17.04.1987, but since author of the said document was not examined to prove the same, therefore, no reliance could have been placed upon it while convicting the appellant as such. It is contended further that the prosecutrix was examined by Dr. Shashikala Thakur (PW-8), who referred for her examination to the radiologist for determining of her age, but the report of the radiologist was not proved by the prosecution and in absence of any cogent and reliable evidence, the trial Court ought not to have convicted the appellant as such. In support, he placed his reliance upon the decision rendered by Hon’ble the Supreme Court in the matter of Alamelu and Another vs. State represented by Inspector of Police, reported in 2011 (2)