2026:CGHC:16784 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 663 of 2009 Bhiyam Singh S/o Lal Sai, aged about 24 years, Agriculturist R/o Village Bhuiehari Para PS Kelhari, Distt. Korea (CG)

... Appellant versus State Of Chhattisgarh through Incharge Police Station Kelhari, District Korea (CG)

... Respondent For Appellant : Ms. Usha Chandrakar, Advocate.

For Respondent : Mr. Himanshu Yadu, Panel Lawyer Hon'ble Smt. Justice Rajani Dubey, J Judgment On Board

13-04-2026 Challenge in this appeal is to the legality and validity of the judgment of conviction and order of sentence dated 4.9.2009 passed by learned Additional Sessions Judge, Manendragarh, Distt. Korea whereby the appellant stands convicted and sentenced as under:

Conviction Sentence Under Section 363 of IPC. RI for 7 years, pay a fine of Rs.3000/-, in default thereof to suffer additional RI for 6 months.

Under Section 366 of IPC. RI for 7 years, pay a fine of Rs.3000/-, in default thereof to suffer additional RI for 6 months Both the sentences were directed to run concurrently.

02. Case of the prosecution, in brief, is that on 7.2.2009 at around 8 pm, the prosecutrix, aged about 15 years, left her house and did not return. She was searched in the nearby areas but was not traceable. During the course of enquiry on missing report, the police came to know on 16.2.2009 that she is at village Ghaghra. Thereafter, the police recovered her from the custody of the appellant. Both of them were subjected to medical examination. During investigation, statements of the witnesses were recorded, clothes of the prosecutrix and the appellant worn at the time of incident were seized; co-accused Dalbir @ Bablu was also arrested; school certificate of the prosecutrix was seized; spot map was prepared and the seized articles were sent to FSL for examination. After completion of usual investigation, charge sheet was filed under Sections 363, 366, 376, 34 of IPC.

03. Learned trial Court framed charges under Sections 363, 366, 376 and 343 of IPC against the accused/appellant and under Sections

109 read with Sections 363, 366, 376 and 343 of IPC against co- accused Dalbir Singh @ Bablu. The accused persons abjured their guilt and prayed for trial. In order to substantiate its case the prosecution examined 11 witnesses. Statements of the accused were recorded under Section 313 of CrPC wherein they denied all the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication.

04. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court while acquitting co-accused Dalbir Singh of all the charges and the accused/appellant of the charges under Sections 376 and 343 of IPC, convicted and sentenced him as mentioned in the opening paragraph of this judgment. Hence this appeal.

05. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the material available on record. Learned trial Court has committed illegality in holding the prosecutrix below 18 years of age on the date of incident whereas the prosecution failed to produce admission form with declaration of parents regarding date of birth during admission in primary school. The doctor who examined the prosecutrix suggested for ossification test for confirmation of age. However, the prosecution did not file any ossification test report. She submits that the prosecutrix (PW-2) categorically states that when her mother and father went to the house of her maternal grand-father, she voluntarily went with the appellant. On the same set of evidence, the co-accused Dalbir Singh has been acquitted of all the charges whereas the appellant has been held guilty under Sections 363 and 366 of IPC. Therefore, the impugned judgment as against this appellant being illegal is liable to be set aside.

06. Per contra, learned counsel for the State opposing the contention of the appellant submits th