2024:CGHC:42322-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 120 of 2016 State Of Chhattisgarh, Through The Station House Officer, Police Station Kodekurse, District North Baster, Kanker, Chhattisgarh ... Appellant versus Sahdev Rawte S/o Charanram Rawte, Aged About 30 Years R/o Village Kudekurse, Police Station Kodekurse, District North Baster, Kanker, Chhattisgarh.

... Respondent For State/appellant : Shri Ankur Kashyap, Dy.G.A.

For Respondent : Shri Chandra Bhushan Kesharwani, Advocate.

Hon'ble Shri Justice Goutam Bhaduri &

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

25/10/2024 Heard.

1. Present appeal is against the judgment dated 20^th November, 2015 passed by the Additional Sessions Judge (FTC) & Special Judge under the Protection of Children from Sexual Offences Act, 2012, North Bastar, Kanker, Digitally signed by GOURI GOURI MUDALIAR MUDALIAR Date:

2024.10.25 District-Kanker (CG) in Special Sessions case No.16/2014 whereby the

17:02:53 +0530 respondent has been acquitted from the charges under Sections 363, 366, 376(2)(I)(N) of IPC and under Section 6 of the Protection of Children from Sexual Offences Act, 2012.

2. The father of the victim lodged a report on 29/04/2014 by Ex.P-8 that the respondent has enticed away his minor daughter and having searched, they were not found. Consequently, the FIR Ex.P-9 was registered. Subsequently, the daughter was recovered and Panchnama Ex.P-3 was prepared and statement of the daughter victim (PW-3) was recorded wherein she narrated that on the pretext of marriage, she was enticed away by the respondent from the lawful guardianship of her parents and the respondent has committed forceful sexual intercourse. The statement of mother and father were also recorded. The victim was subjected to medical test as also the Radiological test wherein her age was reported by the doctor PW-12 as 14 to

15 years and on these evidence, the charge sheet was filed.

3. The respondent abjured his guilt and claimed to be tried. Prosecution on its behalf examined as many as 13 witnesses and exhibited 33 documents and in defence, the respondent also produced the documents Ex.D-1 to Ex.D-17 which are the letters written by the victim to the respondent. The court on evaluating all the facts and evidence, came to a conclusion that the prosecution was not able to prove the age of the victim that on the date of the incident she was minor and considering the other aspects and statement of the mother and father of the victim, acquitted the accused. Hence, this appeal.

4. Learned counsel for the appellant/State would submit that learned Sessions court has completely failed to take into account the statement of the doctor PW-12 who gave the Radiological report wherein the age of the girl was shown to be 14 to 15 years, therefore the evidence would suggest that the prosecution was able to prove the minority, in such case, even the consent theory is developed by the respondent/accused it would not come to his rescue and the statement of PW-3 the victim categorically establishes the fact that she was subjected to rape and was enticed away from the lawful custody of her parents. Consequently, the order of the learned Sessions Judge is liable to be interfered with.

5. Per contra, learned counsel for the respondent would submit that the burden to prove the fact that the victim was a minor was on the prosecution and the evidence of the prosecution itself would show that it failed to prove those facts as the mother and father PW-4 and PW-5 stated that they were married in 1991 and the victim was the third child, analysis of the statement would come to 1995 ½ and the date of incident is of 2014, therefore in any case she had crossed the age of minority. He would submit that the victim was in love relation with the accused which is proved by the various letters which are produced even from the jail, the victim wrote a letter to the accused which manifest that they were in relation. Conseq