Chattisgarh High Court
State Of Chhattisgarh vs Khen Singh Dewar on 28 June, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Acquittal Appeal No. 163 of 2010
State of Chhattisgarh, through the S.H.O, P.S.
Devari, Distt. Durg, Chhattisgarh.
Appellant
Versus
Khemsingh Dewar, S/o Darji Dewar, Aged about 26
years, Village Jamgaon (R), P.S. Ranchirai, Distt.
Durg, Chhattisgarh.
Respondent
For Appellant/State : Mr. Ashish Tiwari, Dy. G.A.
For Respondent:Mr. Ashok Kumar Swarnakar, Advocate
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
28/06/2022
Sanjay K. Agrawal, J.
1. This acquittal appeal is directed against the
impugned judgment dated 29/09/2007 by which learned
Additional Sessions Judge, Balod has acquitted the
respondent from charges punishable under Sections
363, 366 and 376(1) of IPC.
2. Mr. Ashish Tiwari, learned State counsel on behalf
of the appellant/State, would submit that learned
Session Judge has committed grave legal error in
acquitting the respondent from the aforesaid
charges holding the victim to be major by relying
upon medical opinion, rejecting documentary
evidence brought on record in the form of Exhibit
P/13C. He would further submit that learned Session
Judge is also absolutely unjustified in holding the
victim to be consenting party without appreciating
the testimony of victim Mina Kumari (P.W.1). As
such, the instant appeal be allowed and the
judgment of acquittal be set aside.
3. On the other hand, Mr. Ashok Kumar Swarnakar,
learned counsel for the respondent, would submit
that going by paragraphs 10, 11, 12, 13 and 23 of
the statement of victim Mina Kumari (P.W.1), it is
evident that she was a consenting party and as
such, the respondent herein has rightly been
acquitted by extending the benefit of doubt.
4. We have heard learned counsel for the
appellant/State, considered his submissions and
perused the record with utmost circumspection.
5. With regard to the determination of age of the
victim, learned trial Court, after appreciating the
oral and documentary evidence on record, reached to
the conclusion that at the time of the incident,
victim was a major by holding that prosecution has
failed to prove the document Ex. P/13C in
accordance with law as the document on the basis of
which victim's date of birth has been recorded in
Ex. P/13C has not been brought on record and the
person who has admitted the victim in school has
also not been examined. Learned trial Court has
further held the victim to be major being 19 years
of age by relying upon the medical evidence of Dr.
Badri Narayan Dewangan (P.W.13) and by relying x
ray report Ex. P/6. After hearing learned counsel
for the parties and after going through the
records, we are of the considered opinion that
learned trial Court is absolutely justified in
holding the victim to be major as prosecution has
miserably failed to prove the document Ex. P/13C.
We hereby affirm the said finding recorded by the
trial Court.
6. The next issue is to ascertain as to whether the
victim was a consenting party. A careful perusal of
the statement of victim Mina Kumari (P.W.1) would
show that she had many opportunities to make a
complaint about the offence being committed by the
respondent for a period extending upto 7 years from
the date of the offence but she did not avail any
of those opportunities and moreover, she did not
inform about the incident to anyone, not even her
mother Smt. Laxmi Bai (P.W.3). In that view of the
matter, the finding recorded by the trial Court
that victim was a consenting party is a possible
view and is not open for interference in this
appeal in view of limited scope of interference in
appeal against acquittal.
7. The instant appeal stands dismissed accordingly.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet
