State of Chhattisgarh Vs Premchand Nag @ Bholu

The present acquittal appeal has been filed by the State/appellant herein against the judgment dated 03.11.2017 passed in Special Sessions Case No.14/2017 by the learned Additional Session Judge (FTC) (under POCSO Act), Bastar at Jagdalpur (C.G.), whereby the learned trial Court acquitted the accused/respondent herein from the charge punishable under Sections 363, 366, 376 of IPC and Section 6 of POCSO Act.

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The prosecution case, in brief, is that father of prosecutrix (PW-2) filed a written report at police station – Nagarnar to the effect that on 27.02.2017 at around 2.30 PM, his daughter (prosecutrix) PW-1, aged around 14 years, left the house saying that she was going to her mother but did not return home by evening. Thereafter, he went to the elder mother of his daughter and enquired from her but he received no clue. On the basis of said report, an FIR (Ex.P5) being Crime No.23/2017 was registered against unknown person for the offence punishable under Section 363 of IPC. During search operation, the prosecutrix was recovered from the house of accused/respondent and recovery panchanama was prepared vide Ex.P-4. Thereafter, after

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obtaining the consent (Ex.P-3) of prosecutrix (PW-1) and her parents (Ex.P-8), prosecutrix was sent for medical examination to Maharani Hospital, Jagdalpur vide Ex.P-14, where she was medically examined by Dr. (Smt.) Bhawani Bhagat (PW-14) and gave her report under Ex.P-18 noticing no injuries on her body and opined that no definite opinion regarding commission of rape can be given. Mark list of class 8 of the prosecutrix was seized from Govt. Middle School, Maadpal and seizure memo was prepared vide Ex.P-7. Undergarment of the prosecutrix stained with sperm was seized vide Ex.P-1. Clothes of the accused/respondent wore at the time of incident was seized vide Ex.P-12. The accused/respondent was arrested vide Ex.P-13 and he was sent for medical examination too. After arresting the accused/respondent and upon completion of usual investigation, a charge-sheet was filed against accused/respondent under Sections 363, 366, 376 of the Indian Penal Code, and Section 6 of the POCSO Act before the jurisdictional Court followed by charge under Sections 363, 366 and 376 of IPC & Section 6 of POCSO Act. The accused/respondent however denied the charge and pleaded for trial.

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In order to prove its case, the prosecution examined as

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many as 16 witnesses. Statement of the accused/respondent was also recorded under Section 313 of the Cr.P.C. wherein the accused/respondent pleaded innocence and false implication in the crime, however, no defence witness was examined in the case.

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The learned Trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment acquitted the accused/respondent of the charge under Sections 363, 366, 376 of IPC and Section 6 of POCSO Act. Hence, this appeal by the State.

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Ms. Nand Kumari Kashyap, learned P.L. for the State/appellant submits that the impugned judgment, findings, and order of acquittal passed by the learned Trial Judge are illegal, improper, and erroneous, and therefore liable to be set aside. It is submitted that the learned Trial Court committed serious errors in the appreciation of facts and application of law, which resulted in a miscarriage of justice. The learned Trial Court failed to consider the cogent and un-rebutted evidence proving that the prosecutrix was below 18 years of age at the time of the incident, as established by the Progress Report (Ex. P-2), wherein her date of birth was recorded as 07.04.2002, and by the

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medical opinion of Dr. R.K. Singh (PW-13), Radiologist, who opined that the prosecutrix was more than 15 years but less than 18 years. Despite such clear evidence, the learned Trial Court erroneously ignored the minority of the prosecutrix and failed to appreciate that, once the prosecutrix is a minor, her consent is legally inconsequential, and the absence of injuries on her private parts cannot be a ground to disbelieve the occurrence of sexual assault. It is further submitted that the prosecution evidence clearly establishes that the respondent/accused abducted the prosecutrix without the lawful consent of her parents, under the pretext of marriage, and subjected her to sexual intercourse, yet the learned Trial Court wrongly acquitted the accused/respondent.

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On the other hand, Mr. Vikas Shrivastava, learned counsel for accused/respondent supports the impugned judgment of acquittal.

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We have heard learned counsel for the parties and perused the material available on record.

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It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 363, 366, 376 of IPC and Section 6 of POCSO Act, and after appreciation of oral and documentary evidence, the learned

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Trial Court acquitted the accused/respondent of the said charges on the ground that the prosecutrix was a consenting party to the act of the accused/respondent and the prosecution has failed to prove that the prosecutrix was minor at the time of incident.

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In the present case, the prosecution sought to establish the age of the prosecutrix primarily on the basis of her Class 8^th mark list (Ex. P-2), wherein her date of birth was recorded as 07.04.2002. The prosecutrix (PW-1) herself stated that she was 14 years of age and relied upon the said mark list. However, it is significant to note that no independent witness was examined by the prosecution to prove the basis on which the said date of birth was entered in Ex. P-2. The prosecution did not produce the school admission register, nor examined any school authority to substantiate the correctness of the date of birth mentioned in the mark list. Further, both the father (PW-2) and mother (PW-3) of the prosecutrix categorically stated that they did not know the exact date of birth of their daughter, thereby rendering the documentary evidence doubtful.

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As regards medical evidence, Dr. R.K. Singh (PW-13), who conducted the ossification test for age determination, opined that the age of the prosecutrix was above 15 years and

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below 18 years, and submitted his report (Ex. P-17).

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The learned Trial Court correctly appreciated this evidence and finds that, as per settled medical jurisprudence, a margin of two years on either side is permissible in ossification tests. Consequently, the medical opinion did not conclusively establish that the prosecutrix was below 18 years of age on the date of the incident, i.e., 27.02.2017. Thus, the learned Trial Court rightly held that the prosecution failed to prove beyond reasonable doubt that the prosecutrix was a minor at the relevant time.

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With regard to the incident itself, the testimony of the prosecutrix (PW-1) reveals material inconsistencies. Although she initially alleged that the accused/respondent took her away after threatening her, she was declared hostile and, during cross-examination, admitted that the accused/respondent had been in a love relationship with her for the last two years and that she accompanied him on his motorcycle on the pretext of marriage, whereafter physical relations were established. She further admitted, in response to defence suggestions, that she was also in love with the accused/respondent, that she had been visiting his house since 2016, and that while accompanying him, she did not inform her parents that she was being taken away

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forcibly. She also admitted that the report lodged by her father mentioned that she had left the house without informing anyone due to disgrace.

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The aforesaid conduct, admissions, and overall testimony of the prosecutrix clearly demonstrate that she was a consenting party and that she accompanied the accused/respondent voluntarily and without any protest. This conclusion is further corroborated by the medical evidence of Dr. Bhawani Bhagat (PW-14), who found no external or internal injuries on the body of the prosecutrix and could not give any definite opinion regarding forcible sexual intercourse. The absence of injuries and lack of medical corroboration lend further support to the defence version. The learned Trial Court minutely appreciated the evidence of prosecutrix (PW-1) and medical evidence and has recorded its finding that the prosecution has failed to prove its case beyond reasonable doubt. The learned Trial Court has rightly find that the prosecution has not prove the age of the prosecutrix below 18 years of age.

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14. The Hon'ble Apex Court in its recent judgment dated 12.02.2024 (Criminal Appeal No 1162 of 2011) passed in the matter of Mallappa and Ors. Versus State of Karnataka , has held in para 36 as under:-

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36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:-

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"(I) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive-inclusive of all evidence, oral and documentary;

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(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge; (iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

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(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

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(v) If the appellate Court is inclined to reverse the acquittal in appeal on a reappreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

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(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."

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Thus from the discussion aforesaid and judicial pronouncement of Hon’ble Supreme Court in the matter of Mallappa (supra) & the view taken by the learned Trial

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Court in acquitting the accused/respondent of the charges under Sections 363, 366, 376 of IPC and Section 6 of POCSO Act, this Court finds no illegality in the order impugned acquitting the respondent particularly when there is a settled legal position that if on the basis of record two conclusions can be arrived at, the one favouring the accused has to be preferred. Even otherwise, the prosecution thus has utterly failed in proving its case beyond reasonable doubt and the Trial Court has been fully justified in recording the finding of acquittal which is based on proper appreciation of evidence available on record. Furthermore, in case of appeal against the acquittal the scope is very limited and interference can only be made if finding recorded by the trial Court is highly perverse or arrived at by ignoring the relevant material and considering the irrelevant ones. In the present case, no such circumstance is there warranting interference by this Court.

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Accordingly, this Court finds no merit in the appeal. The judgment of acquittal passed by the learned Trial Court is affirmed, and the acquittal appeal stands dismissed.

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Sd/Sd/- (Rajani Dubey) (Radhakishan Agrawal) JUDGE JUDGE

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Digitally signed by VIJAY BHARATRAO PEKDEpekde Date: 2026.01.15 16:56:05 +0530

State of Chhattisgarh v. Premchand Nag @ Bholu

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State of Chhattisgarh v. Premchand Nag @ Bholu

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