2026:CGHC:1017 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1374 of 2018 Shivchand Bariha S/o Shyamu Aged About 20 Years R/o Mungaser Police Station Bagbahra District Mahasamund Chhattisgarh, Chhattisgarh ... Appellant Digitally signed by ARPAN versus ARPAN SRIVASTAVA SRIVASTAVA Date:

2026.01.13

10:3S6:t1a7te Of Chhattisgarh Through Police Station Komakhan District Mahasamund +0530 Chhattisgarh.

... Respondent For Appellant : Mr. Ajeet Yadav, Advocate For Respondent : Mr. Rishabh Chandra Singh Deo, Panel Lawyer Hon'ble Shri Arvind Kumar Verma, Judge

Order on Board

07.01.2026

1. This criminal appeal has been preferred by appellant against the judgment of conviction and order of sentence dated 04.08.2018, passed by the Special Judge, (POCSO), Mahasamund (C.G.) in Special Session Case No.H-46/2017, whereby appellant/accused stands convicted and sentenced as under:

2. The present appeal was filed in the year 2018 and the appellant was granted bail by this Court vide order dated 11.02.2019.

3. The prosecution case, in brief, is that on 28.03.2017 complainant (father of prosecutrix) lodged missing report to the concerned Police Station mentioning therein that her daughter is missing from the house. Based upon the said report, initially the Police registered FIR for offence under Section 363 of IPC against unknown person. During investigation, on 19.09.2017, prosecutrix was recovered from the possession of appellant/accused. Her statement was recorded under Section 161 of Cr.P.C and, based upon which, accused was arrested in aforementioned crime.

4. On completion of investigation, challan/charge sheet was filed against the appellant based which, trial Court has framed the charges against him.

5. Prosecution in order to prove its case examined 17 witnesses. Statement of appellant (accused) was also recorded under Section 313 of CrPC in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. However, no evidence was adduced by him in his defence.

6. After hearing learned counsel for the parties and appreciating the evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellant in the manner as described in Para-1 of this judgment. Hence this appeal.

7. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the evidence available on record. It is submitted that the prosecutrix and the appellant were married in a temple at Cuttack, Odisha, and that the alleged sexual intercourse took place after their marriage. Therefore, the case of the appellant is covered by Explanation II to Section 375 of the IPC. It is further submitted that no case of kidnapping is made out, as the prosecutrix had left the house voluntarily. The age of the prosecutrix was also not proved by admissible evidence. The Dakhil-Kharij register was not part of the charge-sheet and was produced only during the trial. As such, the impugned judgment of conviction and the sentence awarded deserve to be set aside.

8. On the other hand, learned counsel for the State supported the impugned judgment and submits that the prosecutrix was minor on the date of incident and this fact has been duly proved by the prosecution by adducing oral and documentary evidence, therefore, her consent is irrelevant. Prosecutrix was subjected to forcible sexual intercourse by appellant. Being so, the impugned judgment is strictly in accordance with law and the present appeal is liable to be dismissed.

9. Heard learned counsel for the respective parties and perused the recorded placed on record.

10. Now this Court has to see whether the prosecution has been able to prove that on the date of incident the prosecutrix was minor?

11. PW-1/ father of the prosecutrix has deposed in his statement that the date of birth of the prosecutrix is 21.12.2000. PW-3/ prosecutrix has also deposed in her statement that her date of birth is 21.12.2000. But did not produce the b