HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 842 of 2021 Aabaad Ali @ Aabaad Farooqui Ali, S/o Shri Mohammed Ali @ Mohammed Ali Farooqui Aged About 32 Years, R/o Baijnathpara (Behind Madrasa), Police Station City Kotwali, District Raipur, Chhattisgarh. ---- Appellant Versus State Of Chhattisgarh Through District Magistrate Raipur, Chhattisgarh.

---- Respondent ___________________________________________________ For appellant – Ms. Jaya Gupta and Ms. Vikeshvari, Advocates.

For State – Shri Abhishek Singh, PL.

For complainant – Shri Aditya Tiwari, Advocate.

Hon'ble Shri Justice Goutam Bhaduri &

Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board Per Goutam Bhaduri, J.

23/02/2024 Heard.

1. Instant appeal is against the judgment of conviction and order of sentence dated 24/07/2021 passed in Special Criminal Case No.264/2016 by the Additional Sessions Judge, First Fast Track Special Court, Raipur whereby the appellant has been convicted for life imprisonment under section 376 (2) (i) and (n) of IPC and fine of Rs.1,00,000/- was imposed and in default of payment of fine, RI for 1 year has been ordered.

2. The case of the prosecution, in brief, is that the victim was studying Urdu at Madarsa at Baijnath Para, Raipur. The appellant who used to stay at Madarsa used to touch her body parts and one day forcefully committed sexual intercourse, that incident continued and having objected to it, life threat was given to her. Subsequently, she was shifted from Madarsa at Baijnath Para, Raipur to Madarsa, Kanker on 28/08/2016. She was studying there and on 12/09/2016 she delivered a baby girl. Thereafter, having enquired, it was revealed that the appellant had committed forceful sexual intercourse, knowing full well that she is a minor. Police during the investigation, collected the evidence and after recording of the statement and collection of the documents, charge sheet was filed. The appellant abjured his guilt during the trial and claimed to be tried. Prosecution examined as many as 12 witnesses and examined 30 documents. Learned trial court after evaluating the facts and evidence, convicted the accused as aforesaid. Hence, this appeal.

3. Learned counsel for the appellant would submit that the prosecution has utterly failed to prove that the victim was a minor. She would further submit that the date of birth according to the prosecution itself at one part is shown to be 30/10/1997 and the date of incident since was stated from 20/08/2015 to 28/08/2016 she became major. It is further submitted that another date of birth is shown to be 30/07/2002 but at whose instance the date of birth was written, it is not clear inasmuch as PW-1 father has categorically stated that he has not disclosed the date of birth. She would further submit that nature of the incident would show where the happening of the incident is reported has a common thoroughfare and other girls also used to study there, therefore the prosecutrix being a major, she was a consenting party. She would further submit that the victim has also denied the DNA test as was offered, therefore that also raises a doubt and in the statement of the prosecutrix in the police statement she disclosed that she was subjected to rape by one on a day and she could not identify the person, it would go to show that the appellant has been falsely implicated in this case, therefore finding of the court below is liable to be set aside.

4. Per contra, learned State counsel would submit that the prosecution was able to prove the date of birth of the victim to be 30/07/2002. Consequently, on the date of the incident, she was a minor, as a result thereof, consent would be immaterial. He further submits that the statement of the prosecutrix itself would show that she maintained the stand that the appellant has committed the rape, therefore under the circumstances, no doubt exist about the happening of the crime and the finding is well merited, which do not call for any interference.

5. Shri Aditya Tiwari, lea