Nohar Sai vs State Of Chhattisgarh

Conviction,Sentence

Under Section 376 of the

Indian Penal Code","Rigorous Imprisonment for 6

years and fine of Rs.300/- with

default stipulation

From the above, it is clear that the prosecutrix (PW2) was a consenting party to the act done with her by the Appellant.",

As per the prosecution story, the prosecutrix (PW2), at the time of incident, was aged about 15 years. She and her parents have not stated her",

date of birth. Her father Phoolsai (PW1) has stated in his Court statement that at the time of incident age of the prosecutrix was 15 years. In,

paragraph 7 of his cross-examination, he has categorically stated that he did not know the date, month or year of birth of the prosecutrix. He has",

further admitted that even at the time of admission of the prosecutrix in the school, he did not know the date, month or year of the birth of the",

prosecutrix. At that time, he had told the school teacher that he wanted to get the prosecutrix admitted in the school and he may record her date of",

birth as per his own assessment. He has further admitted that he had told estimated age of the prosecutrix as 15-16 years on the basis of his surmise.,

The prosecutrix (PW2) herself was not able to state her date of birth.,

Head Constable K.K. Dwivedi (PW7) has stated that birth certificate (Ex.P8) of the prosecutrix was issued by the then Station House Officer,

Hemant Khare. As per Ex.P8, the date of birth of the prosecutrix is 18.10.1984. This witness has admitted that this entry had been made on the basis",

of Kotwari Register, but the concerned Kotwari Register has not been produced before the Trial Court nor the statement of Kotwar, who made entry",

in the said Kotwari Register regarding the date of birth of the prosecutrix, has been brought on record. There is no ossification test conducted by the",

prosecution.,

There is no clinching evidence on record to establish that at the time of incident, age of the prosecutrix was below 16 years. Since she was a",

consenting party and there is no evidence on record to show that the Appellant committed sexual intercourse with her enticing her that he will marry,

her and the evidence on record shows that her age was more than 16 years, the offence alleged under Section 376 of the Indian Penal Code is not",

made out against the Appellant. Therefore, he deserves to be acquitted of the charge framed under Section 376 of the Indian Penal Code.",

Consequently, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charge",

framed against him.,

It is reported that the Appellant is on bail. His bail bonds shall continue for a further period of six months from today in view of the provisions,

contained in Section 437A of the Code of Criminal Procedure.,

Record of the Court below be sent back along with a copy of this judgment forthwith for information and necessary compliance.,