Sukchand Shori vs State Of Chhattisgarh on 3 January, 2024

[Cites 27, Cited by 0]

Chattisgarh High Court

Sukchand Shori vs State Of Chhattisgarh on 3 January, 2024

1. Challenge in this appeal is to the judgment of conviction and sentence dated 07-08-2023 passed by the learned Additional Sessions Judge, FTSC (POCSO), Kondagaon, District Kondagaon, in POCSO Case No. 21/2020, whereby the appellant has been convicted for commission of the offence under Sections 376(2)(n) of IPC, Section 6 of Protection of Children from Sexual Offences Act, 2012, (hereinafter called as the POCSO Act), and Section 3(2)(v) of Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter called as SC/ST Act) and sentenced him as below:-

Conviction                                                Sentence
Under Section 6 of the POCSO Act                          RI for 20 years and to pay fine of
                                                          Rs.1,000/- in default of payment of fine,
                                                          one month additional RI
Under Section 3(2)(v) of the SC/ST Act                    Life imprisonment and to pay fine of
                                                          Rs.1,000/- in default of payment of fine,
                                                          one month additional RI
Under Section 376(2)(n) of the IPC                        No separate sentence has been awarded
                                                                 Cra 1797 of 2023

                                      2

2. Brief facts of the case are that, the prosecutrix has lodged a written report to the Police Station-Keshkal, alleging that that she is aged about 17 years, belongs to Caste-Gond and residing at village Chiprel. In the month of October 2019, when she had gone to see Dussehra festival in her village, there she met with the appellant, and had introduction with him. He stayed in her house that night and left in the morning. Thereafter, they regularly talk to each other through mobile phone and he often used to come to village Chiprel to her house. In the month of December, he came on his motorcycle to her house, allured her on the pretext of marriage, and taken her to village Singanpur on his motorcycle. They stayed in the house of one Dubey Maharaj, where the appellant has committed sexual intercourse with her for 03 days continuously. After 05 days when her family members called her through mobile phone, the appellant left her to village Chiprel, and thereafter, he avoided to talk to her and also stopped visiting her house. On account of her physical relation with the appellant, she had pregnancy of about 04 months. When her family members noticed her womb looking bigger than the normal size, they asked her for the same, then she disclosed the incident to her family members, and came to the Police station to lodge the report. On the basis of written report Ex.P1, FIR Ex.P2 was registered by the Police on 13-04-2020 against the appellant for the offences punishable under Sections 363, 366, 376 of IPC and section 6 of POCSO Act.

3. Prosecutrix was sent for her medical examination to the Community Health Centre, Keshkal, from where she was sent to CHC Farasgaon.

Cra 1797 of 2023 3 She was examined by PW7 Dr.Jyotirmay Prabhawati, who after conducting examination of the prosecutrix, has given the report Ex.P14. During the examination of the prosecutrix, no any external injury was found over her body and the doctor has opined that there is no sign suggestive of recent use of force/forceful penetration of vagina/anus. The doctor has found that the prosecutrix was carrying pregnancy of 26-28 weeks, however, she advised for Ultra-sound test for confirmation of position of fetus. The UPT (Urine Pregnancy Test) was found positive and her obstetric USG report is Ex.P15. The Police has prepared spot map Ex.P3 and the Patwari has prepared spot map Ex. P4. On 13-04-2020, the progress report of the Class 5 th of the prosecutrix was seized vide Ex.P7. On 19-04-2020, the motorcycle of the appellant was seized vide Ex.P22. The appellant was arrested on 19-04-2020 and he too was sent for his medical examination to CHC Keshkal where Dr. Tejeshwar Netam (P.W.4) has examined him and gave his report Ex.P9 and opined that there is no any finding that person is unable to sexual intercourse. Two glass slides were prepared from glance penis and handed over them to the Police for FSL examination. On 14-05-2020, the Police has seized the School admission and discharge register from Primary School, Chhote Para, Chiprel, in which the date of birth of the prosecutrix is mentioned as 07-12-2002. After retaining attested true copy of the said school register (Ex.P17C), the original register was given back to the school. The seized underwear and slides were sent for FSL examination. The Police have seized the Caste certificate of the prosecutrix vide Ex.P10. Statement under section 164 of Cr.P.C. of the prosecutrix was recorded, statement under section 161 CRPC of the Cra 1797 of 2023 4 prosecutrix as well as the prosecution witnesses have been recorded and after completion of investigation, charge sheet was filed against the appellant for the offences under Sections 363, 366, 376(2)(n) of IPC, Section 6 of POCSO act and also under section 3(2)(v) and 3(2)(v)(a) of the SC/ST Act, 1989.

4. The learned trial court has framed charges against the appellant under sections 366, 376(2)(n) of IPC, section 6 of POCSO Act and section 3(2)(v) of the SC/ST Act. The appellant abjured his guilt, pleaded innocence and claimed trial.

5. In order to bring home the charge, the prosecution has examined as many as 16 witnesses. The statement under section 313 of CrPC of the appellant was also recorded in which he denied the material appearing against him and pleaded innocence and has submitted that he has been falsely implicated in the offence.

6. After appreciation of the evidence available on record, the learned trial Court has convicted the appellant and sentenced him as mentioned in para 01 of this judgment. Hence this appeal by the accused/appellant.

7. Learned counsel for the appellant would argue that the appellant is innocent and has been falsely implicated in the offence, and no offence is made out against him as alleged. The prosecution has failed to prove their case beyond reasonable doubt. There is no cogent and legally admissible evidence available on the record to show that the prosecutrix was minor and less than 18 years of age on the date of incident. Except the school admission and discharge register, no other document like Cra 1797 of 2023 5 Kotwari register or birth certificate or even the ossification test report has been filed by the prosecution to determine her age, and therefore, the finding recorded by the trial Court that on the date of incident the prosecutrix was minor is erroneous. The basis on which the entry of date of birth of the prosecutrix has been made in the school register has not been proved by the prosecution, in absence of which, it can not be considered that the entry made in the school register is the correct date of birth of the prosecutrix. Learned counsel for the appellant would further argue that the prosecutrix has never made any complaint against the appellant and it is only when her parents saw her womb appearing bigger than its normal size, they asked her the reason, then she disclosed the incident to them. No alarm was raised at the time of alleged commission of offence of rape. He would further argue that on the date of lodging the report against the appellant, the prosecutrix was carrying pregnancy of about 26-28 weeks but no DNA test was conducted by the prosecution to ascertain the paternity of the child. Even if any act of sexual relation was being made by the appellant with the prosecutrix, the same was consensual, which does not come under the definition of rape. Learned counsel further argued that the prosecutrix was in love affair with the appellant and she had physical relationship with the appellant on her own will. Hence, the alleged offences of IPC, POCSO Act and SC/ST Act are not made out against the appellant, and he is entitled for acquittal.

8. On the other hand, the learned counsel for the state opposes the argument advanced by the learned counsel for the appellant and submitted that the prosecutrix was minor and below 18 years of age at Cra 1797 of 2023 6 the time of incident, proved by the school admission and discharge register Ex.P17C, which shows her date of birth as 07-12-2002. The school register is an admissible piece of evidence to determine the age of the prosecutrix, and the same has been proved by the Teacher Habiram (PW10), who was working in the School. In MLC report of the prosecutrix, the doctor has opined that the prosecutrix is carrying pregnancy of 26-28 weeks. The evidence of the prosecutrix needs no corroboration and on her sole testimony, conviction can be made. Therefore, there is no illegality or infirmity in the findings of the learned trial court. Prosecutrix, who was minor on the date of incident, was abducted by the appellant and kept away from the lawful guardianship of her parents. Therefore, the impugned judgment of conviction and sentence needs no interference.

9. We have heard learned counsel for the parties and perused the record carefully.

10. With regard to age of the prosecutrix, the prosecution has mainly relied upon the school admission and discharge register Ex.P17C and the statement of PW10, Habiram, who is the Teacher of the school. PW10 has stated in his deposition that he is posted at Primary School, Chhote Para, Chiprel, as Teacher. The Police has asked for the school admission and discharge register with respect to date of birth of the prosecutrix, who is the victim of rape. The Police have seized the school admission and discharge register vide Ex.P10. He has brought the original register with him in which the date of birth of the prosecutrix is mentioned as 07.12.2002. The attested true copy of the school register Cra 1797 of 2023 7 is Ex. P17C and he made entry of date of birth of the prosecutrix in the school register. In cross examination, he admitted that on the basis upon which entry of date of birth of the prosecutrix is made in the school register, is not available in the said register. Who has got admitted her in the school, is also not available. Details of the person under whose instruction the date of birth of the prosecutrix was entered in the said school register is also not available. He further stated that though the information is available in the declaration form but he has not produced any such declaration form during investigation. He has further admitted that there is no endorsement in the school register as to on what basis her date of birth is recorded in it.

11. The prosecutrix, PW1, has only stated in her deposition that at the time when the appellant has taken her along with him, she was minor. Police has seized her progress report of Class 5 th with regard to her date of birth. Although, the seizure memo has been prepared as Ex.P7 but for the reason best known to the prosecution, the same has not been marked as article. She has not disclosed her date of birth. In cross examination, the prosecutrix has admitted that the Police has not seized her birth certificate.

12. PW 2, mother of the prosecutrix has not stated her date of birth in her deposition. In the cross examination, this witness has admitted that she could not know the date of birth of her daughter/prosecutrix. PW3, father of the prosecutrix has also not stated her date of birth.

Cra 1797 of 2023 8

13. From evidence of the prosecutrix (PW1), Habiram (PW10), working as Teacher of the school, the School Register Ex.P17C, and deposition of her parents in their evidence, the prosecution could not establish that on the date of incident prosecutrix was minor and less than 18 years of age. No any birth certificate, ossification report or Kotwari register has been filed by the prosecution.

14. PW15, Sunita Uike, the Investigating Officer has stated in her deposition that she has not seized the declaration form from the school which was filled up at the time of admission of the prosecutrix, the Kotwari register and Jachcha Bachcha card have also not been seized by her. She further admits in her deposition that she has not investigated as to who got the prosecutrix admitted in the school, and who entered her date of birth in the register.

15. PW16 Amit Patel, who has also conducted part of the investigation, has stated in his deposition that he has not investigated as to who has taken the prosecutrix for her admission in the school. There is no clinching evidence available on record to prove that the date of birth of the prosecutrix is 07.12.2002. Therefore, it seems that her is mentioned in the school register only on assumption.

16. The relevancy of the school admission and discharge register came for hearing before the Hon'ble Supreme Court in Alamelu and Another Vs. State, represented by Inspector of Police, reported in 2011(2) SCC 385, in which the Hon'ble Supreme Court has held that the Transfer Certificate which is issued by the Government School, and is duly signed Cra 1797 of 2023 9 by the Head Master, would be admissible in evidence under Section 35 of the Evidence Act 1872. However, admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded.

17. In paragraphs 40 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under:

"40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded.

48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P. held as follows:-

"38. The age of a person as recorded in the school register or otherwise may be used for various purposes; namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum, e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Cra 1797 of 2023 10 Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

18. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under:

"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.

Cra 1797 of 2023 11 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.

33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.

33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."

19. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, reported in 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under :

"14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest Cra 1797 of 2023 12 medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.

15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:

"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."

16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:

"Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category Cra 1797 of 2023 13 (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. "

17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference."

20. In the instant case, although the date of birth of the prosecutrix is mentioned in the School admission and discharge register as 07-12-2002, and on that basis, on the date of incident, age of the prosecutrix appears to be below 18 years of age, but as has been observed in preceding paragraphs that there is no evidence on the basis of which the date of birth of the prosecutrix was recorded in the school register. The parents of the prosecutrix as well as the prosecutrix herself have not given any date of birth in their deposition. The declaration form submitted in the school at the time of admission has not been produced by the Police. No any ossification report, Kotwari register or birth certificate have been produced by the prosecution to prove the age of the prosecutrix. Therefore, it would not be safe to hold that the prosecutrix was minor on the date of incident. Therefore, we set aside the findings of the trial court that on the date of incident, the prosecutrix was minor and below 18 years of age.

Cra 1797 of 2023 14

21. So far as allegation of rape is concerned, PW1, the prosecutrix has stated in her deposition that she came in contact with the appellant from the time of Dussehra festival in her village, when he also came there and thereafter, they started talking with each other on mobile phone. After about 04 days of Dussehra festival. The appellant has taken her along with him on the pretext of threshing work of paddy and kept her in her brother's house at village Singanpur. He kept her about 08 days and made physical relation with her. When she was not found at her parents' house, they called the appellant through mobile phone, and asked him to bring back the prosecutrix to her house, then, he left her in her parent's house. After some days, when she went to her uncle's house for a marriage function, elderly persons asked her after seeing her womb which appears to be bigger than its normal size and then she disclosed the incident to her parents. Then she lodged the report to the Police. She said that 2 months prior to recording her deposition, she gave birth to a girl child. In cross examination also, she has admitted that at the time of festival, she met with the appellant and thereafter, she talked to him regularly through mobile phone. She has further admitted that the appellant regularly came to her house in presence of her parents. She further admitted that she used to call the appellant and call him to come to her village. It is also admitted by her that she went to village Singanpur for cutting of the paddy crop and stayed there for about 5-6 days. She has admitted that while her stay at Singanpur, they made physical relation with mutual consent. After staying there for about 7-8 days at village Singanpur, she returned back to her village. She further admits that the appellant still wants to marry her, but since she belongs to Cra 1797 of 2023 15 different caste, her parents were not ready to permit her to marry with the appellant. She further admits the fact that she had relationship with the appellant, and she never disclosed it to her parents. She further admits that, on the instance of her uncle, she lodged the written report. The prosecutrix has not deposed that the appellant has made physical relation forcefully or against her will or consent; rather she stated that she made physical relationship with consent. No alarm was raised at the time of making physical relationship and no any complaint has been made about the alleged incident of rape till she was medically examined and 26-28 weeks pregnancy was confirmed.

22. PW2, mother of the prosecutrix, has stated in her deposition that the prosecutrix is her daughter. The prosecutrix was being taken by the appellant to village Singanpur, and when she was asked to return, the appellant left the prosecutrix to her house. She asked from the prosecutrix, but she has not disclosed any incident to her. The prosecutrix has not disclosed the fact that she is having relation with the appellant. When the prosecutrix appears to be pregnant, she asked her and then she disclosed that she got pregnancy from the appellant and thereafter, the report has been lodged. In cross examination, she has admitted that the appellant regularly used to come to her house. Mother of the prosecutrix further admits that when prosecutrix was staying at village Singanpur, she regularly talk to her daughter. She further admits that since the appellant belongs to a different caste, they refused for their marriage.

Cra 1797 of 2023 16

23. PW3, father of the prosecutrix, has stated in his deposition that he knows the appellant. Appellant has taken his daughter to village Singanpur along with him and upon asking to the appellant, he left the prosecutrix to her parents' house. After returning to her house, the prosecutrix has not disclosed any incident to him. After some time, on the advice of the villagers, he lodged the report. In cross examination, this witness has admitted that at the time of Dussehra festival, his daughter has taken the appellant with her to her house and he stayed there. He was in knowledge of the fact that the prosecutrix went to Singanpur and therefore he has not lodged any missing report. He further admits that he doesn't want to lodge any report against the appellant, but on being insisted by the villagers, he lodged the report.

24. During the medical examination of the prosecutrix, there are no external or internal injuries were found on the body of the prosecutrix by the doctor. At the time of her medical examination, she was carrying pregnancy of about 26-28 weeks.

25. Till her medical examination, prosecutrix has not disclosed the incident to any one despite allegation of repeated sexual intercourse with her by the appellant. From the evidence of the prosecutrix, it appears that she continued in physical relationship with the appellant without making any complaint to anybody which dragged us to draw the conclusion that the prosecutrix is a consenting party in making physical relationship with the appellant and that was the reason she has not disclosed the incident to anybody and when she became pregnant, she was having no other option except to disclose it to her parents. Had she Cra 1797 of 2023 17 been subjected to forceful sexual intercourse and raised hue and cry at the time of incident in the night, the persons of adjoining houses would certainly be gathered there to rescue her, but it is not the case. There is no sign of struggle on the body of the prosecutrix. The conduct of the prosecutrix shows that she was in relation with the appellant on her own consent. The prosecution has sent the slides prepared from the vaginal swab of the prosecutrix and her clothes to get it examined by FSL for presence of semen or sperms on the articles but there is no FSL report on record.

26. In view of the preceding discussions, this court is of the opinion that prosecutrix was a consenting party in making physical relationship with the appellant. She has not made any complaint to any person of nearby place and has not shouted for help. It is not the case that appellant has committed forceful sexual intercourse with the prosecutrix, without her will or consent.

27. Considering the entire evidence available on record, the evidence with regard to the age and conduct of the prosecutrix, we are of the opinion that the prosecution has failed to prove that the prosecutrix was less than 18 years of age at the time of incident. Further, she was a consenting party with the appellant in making physical relation with him. Therefore, in the above facts and circumstances of the case, the offences under Section 376(2)(n) of the IPC, and Section 6 of the POCSO Act are not made out against the appellant.

Cra 1797 of 2023 18

28. So far as the conviction of the appellant under Section 3(2)(v) of the SC/ST Act is concerned, since, there is no offence is made out against the appellant under Section 376(2)(n) of the IPC, he cannot be convicted for the offence under Section 3(2)(v) of the SC/ST Act because the Section 3(2)(v) of the SC/ST Act provides that whoever, not being a member of a scheduled caste or a scheduled Tribe, commits any offence under the Indian Penal Code, punishable with imprisonment for a term of 10 years or more, shall be punished with imprisonment for life and with fine.

29. PW15, Sunita Uike, the Investigating Officer has stated in her deposition that the prosecutrix have not stated that the appellant has committed sexual intercourse on the ground that she belongs to Gond caste. In the instant case, the appellant has not committed any offence of the IPC, hence, not found him guilty of the offence under the IPC and therefore, he cannot be convicted or sentenced under the SC/ST Act.

30. For the forgoing reasons, the appeal is allowed. The judgement of conviction and order of sentence dated 07-08-2023 is set aside. The appellant stands acquitted from all the charges. Appellant is reported to be in jail since 24-06-2023. He be released forthwith, if not required in any other case.

31. Keeping in view the provisions of section 437-A of Cr.P.C., the appellant is directed to furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure for a sum of Rs. 25,000/- with two reliable sureties in the like amount before the court concerned Cra 1797 of 2023 19 forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.

32. The lower court records along with a copy of this judgment be sent back immediately to the trial Court concerned, for compliance and necessary action.

                         Sd/-                                        Sd/-
              (Ravindra Kumar Agrawal)                       (Ramesh Sinha)
                       Judge                                  Chief Justice

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