NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Judgment Reserved on 11.06.2024 Judgment Delivered on 13 .06. 2024 CRA No. 89 of 2002  Rampyare S/o Shiv Prasad Bargah, Age 25 years, Occupation-Agriculture, R/o Village Chikhladih, P.S.

Ambikapur, District: Surguja, Chhattisgarh.

---- Appellant Versus  State of Chhattisgarh through P.S. Ambikapur, District:

Surguja, Chhattisgarh.

---- Respondent ----------------------------------------------------------------------------------------

For Appellant : Mr. A.K. Prasad, Advocate.

For Respondent-State : Mr. Sanjeev Pandey, Dy.A.G.

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

CAV Judgment

1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 05-01-2002, passed by the 1^st Additional Sessions Judge, Ambikapur, District: Surguja (C.G.), in Sessions Trial No.144/2000, whereby the appellant-accused has been convicted as under:-

Conviction Sentence U/s 363 of the IPC R.I. for 5 years and fine of Rs.500/-, in default of

All the sentences are directed to run concurrently.

2. Facts of the case, in brief is that Rambali(PW-1), father of prosecutrix lodged a missing report at P.S.-Ambikapur, Dist:Surguja (C.G.) that on 10-03-2000, her daughter was gone for grazing the cattle, but she was not returned to home. On the basis of report and after due investigation, it was revealed that the appellant is a person who took the prosecutrix (PW-5) forcefully from Prajapati Bricks Kiln towards forest. Thereafter, on the pretext of marriage, appellant took the prosecutrix at different places and committed sexually intercourse with her from 10-03-2000 to 17-03-2000. Prosecutrix was studied at 5^th standard and her date of birth was recorded as 02-01-1986. On the basis of missing report, FIR was registered against the appellant vide Ex.P-17. Medical examination of prosecutrix was conducted by Dr.Shipra Shrivastava and submitted a report vide Ex.P-16. Undergarments of prosecutrix were seized vide Ex.P-7 and underwear of appellant was seized vide Ex.P-20 and advised to sent for its chemical examination. School admission register of prosecutrix vide Ex.P-12(C) was submitted by Shyamlal Gupta(PW-6), Assistant Teacher of School of village Chikhladih and marksheet were seized vide Article-A. After completion of investigation, charge sheet was filed.

3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 11 witnesses and exhibited 24 documents. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. The appellant has neither examined any witness nor exhibited any document.

4. After hearing both the parties, the trial court passed the impugned judgment of conviction and order of sentence.

5. Learned counsel for the appellant submits that the date of birth of prosecutrix (PW-5) is not proved. He further submits that Rambali(PW-1), father of prosecutrix stated that the age of prosecutrix was 18-19 years at the time of incident and her mother has shown inability to state the correct age of prosecutrix. Ossification test to determine the age of prosecutrix has not been conducted. Prosecutrix was consenting party. For the offence under section 363, 366 of the Indian Penal Code, 1860, it was necessary to prove that age of the prosecutrix was less than 18 years at the time of the incident. For the offence under section 376 of the Indian Penal Code, it was necessary to prove that t