Advocates:
['PARAG KOTECHA', '', 'JITENDRA MUDLIAR', 'A G']

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 451 of 2014

•

Somnath @ Som S/o Siyaram Yadav, Aged About 25 Years, R/o.

Karaihapara, Ratanpur, Distt. Bilaspur C.G., Chhattisgarh

---- Appellant

Versus

•

The State of Chhattisgarh Through P.S. Ratanpur, Distt. Bilaspur C.G.,

Chhattisgarh

--- Respondent

For Appellant : Shri Parag Kotecha, Advocate.

For Respondent/State: Shri Aditya Sharma, Panel Lawyer.

Hon'ble Shri Justice Rajendra Chandra Singh Samant

Judgment on Board

27/06/2019

1.

This appeal has been preferred against judgment dated 28-03-

2014 passed in Special Session Case No.168/2013 by the

Special Judge under Protection of Children from Sexual Offences

Act (in short 'POCSO Act') and Additional Sessions Judge

(F.T.C.), Bilaspur, Chhattisgarh convicting the appellant under

Section 363, 366 of the IPC and Section 4 of POCSO Act and

sentencing him with R.I. for 4 years, R.I. for 4 years and R.I. for

10 years along with fine of Rs.3000/-, Rs.3000/- and Rs.10000/-

respectively with default stipulations and direction that all the jail

sentences shall run concurrently.

2.

The case of the prosecution, in brief, is this, that the appellant

abducted the minor prosecutrix on 01-01-2013 and kept her in his

custody for about one month during which she was sexually

exploited by him. A missing report was lodged on 03-01-2013.

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The prosecutrix was recovered on 10-02-2013 vide recovery

memo (Ex.-P/1) from the custody of the appellant. Then on the

basis of the information given by the prosecutrix the FIR was

lodged on 11-02-2013. The case was investigated and charge

sheet was filed before the Court below.

3.

The appellant was charged under Section 363, 366, 376(2)(>) of

the IPC and Section 4 of POCSO Act, to which he denied and

prayed for trial.

4.

On completion of the prosecution evidence, the appellant was

examined under Section 313 of the Cr.P.C. in which he denied all

the incriminating evidence against him, pleaded innocence and

false implication. No witness was examined in defence.

5.

On completion of the trial, the impugned judgment has been

passed in which the appellant has been convicted and sentenced

as aforementioned.

6.

It is submitted by learned counsel for the appellant that the

appellant has been erroneously convicted by the trial Court

without there being any evidence of prosecution beyond

reasonable doubt. The prosecutrix (PW-1) herself discloses that

she had been a willing and consenting party throughout. The age

of the prosecutrix was below 18 years this has not been proved

by the prosecution beyond reasonable doubt. The prosecutrix

(PW-1) herself has stated that her date of birth is 17-03-1998,

whereas, her father has stated that her date of birth is 17-03-

1997 which is contradictory statement. Therefore, this should not

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have been believed by the Court below. The prosecution has

deliberately suppressed the report of the radiologist at the time of

trial because the report stated the age of the prosecutrix to be

above 18 years. Therefore, that report may be taken notice of by

this Court. Hence, on this basis it can be said that the

prosecution has failed to prove the minority of the prosecution.

Therefore, the applicant is entitled for acquittal. In the alternative,

it is prayed that if this Court is not convinced to acquit the

appellant from the charges, then his sentence of imprisonment

may be reduced to the period already undergone by him in jail.

7.

Learned counsel for the State/respondent opposes the grounds

raised in the appeal and the submission made in this respect and

submits that the prosecutrix (PW-1) has herself and her parents

have authority to make statement regarding age and date of birth

of the prosecutrix, whereas, the opinion of the radiologist is just

an opinion which cannot rebut the statement made by the

witnesses. Hence, the prosecution has clearly established that

the prosecutr