2025:CGHC:14148 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1835 of 2024

1 - Jogaram Kadti S/o Shri Podiya Kadti Aged About 36 Years R/o Permapara Madadhi, P.S. Kirandul, District Dantewada (C.G.) ... Appellant(s)

versus

1 - State Of Chhattisgarh Through Police Station - Kirandul, District Dantewada (C.G.) ---- Respondent ------------------------------------------------------------------------------------------

For the Appellant : Mr. Praveen Kumar Tulsyan, Advocate.

For the State/Respondent : Mr. Laxmeen Kashyap, Advocate ------------------------------------------------------------------------------------------

Hon'ble Shri Arvind Kumar Verma, Judge

Order on Board

24.03.2025

1. With the consent of the parties, the present matter is heard finally.

2. This criminal appeal has been preferred by the appellant against the judgment of conviction and order of sentence dated 26.09.2024, passed in Special Session (POCSO) Case No. 117/2023 by which the learned Additional Session Judge (F.T.C.) South Bastar Dantewada, (CG),whereby the appellant has been convicted and sentenced as follows:-

3. The prosecution case, in brief, is this that victim had lodged FIR against the present appellant and alleged that on 07.11.2023, the present appellant had called her outside the house by threatening her and thereafter took her to Madadhi Gechapara Jungle and committed forceful sexual intercourse. Based upon the said report, FIR was registered against the appellant for the offence punishable under Sections 376 of IPC & u/s 04, 06 of POCSO Act of Indian Penal Code. On completion of investigation, final report/charge sheet was filed against appellant.

4. Prosecution in order to prove its case examined total 11 witnesses.

Statements 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.

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

6. Learned counsel for appellant submits that age of the prosecutrix was 16 years, 9 months and 22 days at the time of alleged incident, but no authentic documentary proof was filed in order to show that the prosecutrix was a minor girl on the alleged date. The date of birth mentioned as 15.01.2007 in 10^th class mark-sheet (ExP-9) cannot be said to be conclusive as the author of the said document could not be examined and the basis on which the date of birth of the victim is recorded in the said school register have also not been proved. No any kotwar register, birth certificate or ossification test have been produced by the prosecution for determination of the actual age of the victim.

7. Learned counsel for the appellant would further submit that the victim was having love affair with the appellant and she herself eloped with him on her own sweet will and have not made any complaint to anyone while going with the appellant by motorcycle. She has also not raised any alarm while she has been taken by the appellant and also while staying with him and making physical relation with him. The evidence of the victim does not inspire the confidence and therefore no offence under IPC and POCSO Act are made out against the appellant.

8. Learned counsel further submits that trial Court convicted the appellant relied upon the statement of PW-1/victim, but her statement is not reliable as there are many contradictions, omissions and development in her statement, which was not considered properly by the learned trial court. From the statements of the prosecutrix recorded before the police, Magistrate and the Court it reflects that she is not a reliable witness and appears to be a consenting party to the act of appellant. Trial Court also ignored the fact that nothing has been f