Rohit Nishad Vs the State of Chhattisgarh

1. This criminal appeal has been preferred under Section 374(2) of the CrPC against judgment of conviction and order of sentence dated 20.12.2021 passed by Fast Track Special Court (POCSO Act, 2012) Bemetara (CG) in Special Session Case No.39/2017, whereby the learned Special Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:-

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Digitally signed by BINI BINI PRADEEP PRADEEP Date:2025.10.17 17:43:57 +0530

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Sl. No.	Conviction under Section	Jail Sentence	Fine Sentence	De sti	fault pulation
01.	363 IPC	RI for 01 year	Rs.100/-	RI mo	for 03 nths
02.	366 IPC	RI for 03 years	Rs.200/-	RI mo	for 06 nths
03.	376(2)(j)(n) IPC	RI for 10 years	Rs. 500/-	RI yea	for 03 rs
04.	6 of the POCSO Act	RI for 10 years	Rs.500/-	RI yea	for 03 rs

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2. The case of the prosecution, in brief, is that minor victim and the appellant/accused are residents of village Amora. On 14.4.2017, the appellant abducted the minor victim and took her to Raipur, where he kept her for about one week. On the pretext of marriage, the appellant sexually exploited the victim/prosecutrix and also performed marriage with her in Arya Samaj Mandir on 15.4.2012. Thereafter they were residing as husband and wife in a rented house at Tilda. Thus, the appellant kept the minor victim for about 02 months and 07 days at Raipur and Tilda and during this period he sexually exploited her. FIR (Ex-P/7) was lodged by father of the victim against the appellant for the offence under Sections 363 and 366 of IPC on 15.4.2017 in police Station Bemetara, Distt. Bemetara. The victim was recovered from the possession of the appellant from this rented house at Tilda Nevra vide recovery panchnama (Ex-P/1) on 12.6.2017. Statement of the victim under Section 164 CrPC was recorded vide Ex-P/5 before concerned Judicial Magistrate, her police statement as well as her statement before Child Welfare Committee was also recorded vide Ex-P/4. Spot maps vide Ex-P/6 & P/8 were prepared. Statement of other witnesses were recorded under Section 161 CrPC. Underwear of the victim was seized vide Ex-P/3, the victim was examined by Dr. Nidhi Meshram (PW-10) and vide MLC report – Ex-P/22, she opined that the victim is habitual for sexual

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intercourse and since no injury was found on her person, therefore, she could not opine about recent rape or sexual intercourse with the victim. She prepared two vaginal slides and handed over the same to the concerned police constable for chemical examination. Vaginal slides of the victim were seized Ex-P/19. Underwears of the appellant were seized vide Ex-P/11 & 12 and he was arrested vide Ex-P/13. Dakhil Kharij Register (Ex-P/20C) was seized vide Ex-P/21 from Government Higher Secondary School, Jevri Distt. Bemetara. Vaginal slides and underwear of the victim and and underwear of the appellant were sent to FSL for chemical examination vide Ex-P/28. The FSL report (Ex-P/29) is reported to be ‘negative’ as no spermatozoa is reported to be found in the articles. After completion of investigation, charge sheet was filed for the offence under Sections 363, 366 & 376 IPC and Section 4, 5(l) of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) against the appellant.

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3. The learned Upper Sessions Judge framed charges under Sections 363, 366(A), 376 IPC and Sections 4, 5(l) read with Section 6 of the POCSO Act against the appellant, who denied the charges and claimed for trial.

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4. In order to bring home the guilt of the appellant/accused, the prosecution has examined as many as 15 witnesses and exhibited 29 documents. Statement of accused/appellant under Section 313 CrPC was recorded, in which he denied all the incriminating circumstances appearing against him and pleaded innocent. No witness has been examined by the appellant/accused. The learned Special Court upon appreciation of oral and documentary evidence available on record, vide its judgment dated 20.12.2021, finding the evidence adduced by the prosecution trustworthy,

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convicted and sentenced the appellant/accused as mentioned in the opening paragraph, against which, this appeal has been filed by him.

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5. Learned counsel for the appellant submits that in the instant case, learned Special Court has held the victim minor on the basis of date of birth i.e. 28.6.1999 mentioned in the Birth Certificate of the victim. Though that Birth Certificate has not been exhibited by the prosecution, but original date of birth certificate of the victim, which the victim herself filed, has been exhibited by the Court as Ex.- Court- 1 and on the basis of aforesaid date of birth, the victim was held minor by the Special Court, whereas, as per the Dakhil Kharij Register (Ex-P/20C) of the victim, her date of birth is 19.7.2000. Thus, there are two dates of birth of the victim, which is completely contrary and there is huge difference between both the dates of birth i.e. 19.7.2000 and 28.6.1999. The victim and her parents have not stated what is the actual date of birth of the victim, as they are less educated persons. It has also not been proved that who got recorded said date of birth i.e. 19.7.2000, while admitting the victim in the school. Thus, since the victim has two different dates of birth as per records and it has not been proved by the prosecution as to by whom and on what basis the date of birth mentioned in the school was recorded, none of the above dates of birth of the victim can be considered reliable. Despite that the learned trial Court has held the victim minor, which is perverse and illegal.

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5.1 Learned counsel further submits that the victim herself has admitted that she fell in love with the appellant while studying in the school and she accompanied him and also married him of her own free will and consent. Since the victim had attained the age of majority on the date of incident, therefore, it is a case of consensual elopement as well as

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consensual physical relation. Further, the victim has stated in her deposition that now she does not want to reside with the appellant/accused as her parents have fixed her marriage with another person. Learned counsel for the appellant also informed during submission that as per his instruction, the victim had performed marriage with some other person and also delivered a child. Learned counsel lastly submits that conviction and sentence imposed upon the appellant by the learned Special Judge is completely perverse to the evidence and against the law, hence, it is prayed that the appeal may be allowed by setting aside impugned judgment and the appellant may be acquitted of all the charges levelled against him.

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6. Per contra, learned counsel for the State supports the impugned judgment.

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7. I have heard learned counsel for the parties, considered their rival submissions made and perused the material available on record.

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8. In the instant case, victim has been held minor on the date of incident, i.e. 14.4.2017. The learned Special Court has accepted the date of birth of the victim on the basis of her birth certificate (Ex.-Court-1) which was filed by the victim herself, in which her date of birth is mentioned as 28.6.1999. This finding has not been challenged by the prosecution therefore, it has attained finality and on the basis of that, it is reveled that on the date of incident, age of the victim was 17 years 10 months and 14 days, i.e. on the verge of attaining majority. Though as per aforesaid date of birth, the victim is found to be minor on the date of incident, but as per her Dakhil Kharij Register (Ex-P/20C), her date of birth is 19.7.2000.

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9. PW-2 is father of the victim. PW-3 is maternal grand father of the victim. But they have not stated in their deposition that what is the date of

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birth of the victim. Victim herself has stated her date of birth as 19.7.2000 as per the school record. But neither the victim, nor her father nor her maternal grand father have stated in their deposition as to who and on what basis recorded date of birth of the victim while admitting her in the school. Even Dakhil Kharij Register of Primary School of the victim has not been seized, rather Dakhil Kharij Register of the High School pertaining to the victim has been seized. Thus, two dates of birth are found in the record i.e. 28.6.1999 in her birth certificate and 19.7.2000 in Dakhil Kharij Register in the school record. To prove the actual date of birth of the victim, father and other relatives of the victim have not proved the fact that what is the actual date of birth of the victim.

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10. PW-3, who is maternal grand father of the victim, has stated in his deposition that the victim born in his village and her date of birth was also got recorded in the Kotwari register. That could have been the best document to prove the date of birth of the prosecutrix, but that has not been proved. Having considered two dates of birth mentioned in the school record as well as in birth certificate and which one is exact date of birth, has not been proved by the parents or other relatives of the victim and further as per the date of birth of victim mentioned in the birth certificate (Ex.-Court-1), the victim was on the verge of majority, therefore, it cannot be conclusively held that on the date of incident, the victim was minor. As such, finding recorded by the learned Special Court that the victim was minor on the date of incident is perverse and illegal.

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11. PW-1 is victim. She has admitted in her deposition that she was in love with the appellant since school days and used to talk to him on mobile phone. She herself has admitted that she wanted to marry the appellant. She

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also admitted in the cross-examination para 10 that she joined the company of the appellant and also resided with him as his wife with her own will and consent. Nowhere she has stated in her deposition that the appellant forcibly made physical relation with her, rather it is very clear from her deposition that she herself stayed with the appellant for about 02 months in Raipur as well as in Tilda.

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12. PW-2 is father of the victim, PW-3 is maternal grand father of the victim, PW-4 is uncle (mousa) of the victim and PW-5 is uncle (mama) of the victim. Though they have stated in their deposition that victim had never told them that appellant had married her and they have also not stated in their deposition that the appellant had physical relation with her. Other witnesses are formal witnesses.

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13. PW-10 Dr. Nidhi Mersam examined the victim and vide MLC report (Ex-P/22), she could not opine about the recent rape or sexual intercourse with the victim. Even vaginal slides of the victim prepared by her was got examined by FSL, Raipur and in the FSL report (Ex-P/29), it was reported to be ‘Negative’.

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14. Thus, since from the evidence brought by the prosecution, it is not proved beyond reasonable doubt that the victim was minor on the date of incident, rather it is proved from the deposition of the victim herself that she joined the company of the appellant/accused and resided with him for more than 02 months and also indulged in physical relation with him with her free will and consent. Thus, there is no cogent evidence to convict the appellant for offence charged against him. But the learned trial Court, without any lawful evidence has convicted and sentenced the appellant , hence, the same is liable to be set aside.

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15. In view of the above discussion, I am inclined to allow the present appeal and acquit the appellant.

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16. In the result, the appeal is allowed. Conviction and sentence imposed on the appellant under Sections 363, 366, 376(2)(j)(n) and Section 6 of the POCSO Act are set-aside and he is acquitted of the said charges granting him benefit of doubt.

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17. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 06 months from today in view of the provisions contained uner Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023.

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18. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith.

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19. The Criminal Appeal is allowed.

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Sd/-

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(Naresh Kumar Chandravanshi) Judge

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Bini

Rohit Nishad v. the State of Chhattisgarh

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Rohit Nishad v. the State of Chhattisgarh

Case brief

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