NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1311 of 2017 (Arising out of judgment dated 28.06.2017 passed in Sessions Trial No. 03/2017 by the Additional Sessions Judge, Pratappur, District Surajpur, Chhattisgarh.)

 Devlal @ Motu Kodaku S/o Sahdev Kodaku, aged about 20 years R/o Village Baniyadhurpara Giriya, Police Station Chandaura, District Surajpur Chhattisgarh.

---- Appellant Versus  State of Chhattisgarh through Station House Officer, Police of Police Station Chandaura, District Surajpur Chhattisgarh.

---- Respondent For Appellant :- Mr. Jeet Patel, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee.

For State/Respondent :- Mr. Soumya Rai, Panel Lawyer.

Division Bench Hon'ble Shri Justice Sanjay K. Agrawal &

Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (19.03.2024)

Sanjay K. Agrawal, J

1. This criminal appeal under Section 374(2) of the CrPC preferred by the appellant – accused herein is directed against the impugned judgment of conviction and order of sentence dated 28.06.2017 passed by the Additional Sessions Judge, Pratappur, District Surajpur, Chhattisgarh in Sessions Trial No. 03/2017 by which appellant herein has been convicted and sentenced as under:-

Both sentences were directed to run concurrently.

2. Case of the prosecution, in short, is that on 01.01.2017 at about 3:00 pm when victim (PW-7), at the time of incident age of the victim was less than 12 years, was going to Jajawala market along with her neighbours namely Mansai (PW-10) & Phulkunwar (PW-13), appellant herein was following them and on the way to the market he (appellant) caught hold of the victim and took her forcefully towards the spot and committed sexual intercourse against her wishes knowing fully well the fact that victim (PW-7) is a minor girl and also threatened her to kill. It is further case of the prosecution that after coming home victim has informed about the incident to her mother (PW-8) and father (PW-9) pursuant to which FIR was registered vide Ex.P/9. Nazari naksha (Ex.P/6) was prepared. Victim (PW-7) was medically examined by Dr. Suchita Nirmala Kindo (PW-3) who prepared the medical report of the victim vide Ex.P/2. In the medical report (Ex.P/2) proved by Dr. Suchita Nirmala Kindo (PW-3) signs of forcefull sexual intercourse was found and two slide were sent for chemical analysis and on the underwear of the victim stains of semen were found vide Ex.P/3 by Dr. Suchita Nirmala Kindo (PW-3), but, for definite opinion it was sent for chemical analysis to FSL and in the FSL report (Ex.P/27) stains of semen and human sperm were not found. Further, on the date of offence the age of the victim was less than 12 years, as per medical evidence and as per Ex.P/1 date of birth of the victim is 10.08.2008.

3. After due investigation, appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. Statement of the appellant was taken under Section 313 of CrPC wherein, appellant / accused abjured his guilt and entered into defence stating that he has not committed the offence.

4. In order to bring home the offences, prosecution has examined as many as 18 witnesses and exhibited 28 documents and defence in support of its case has not examined any witness, but exhibited one document.

5. T