The Chhattisgarh High Court acquitted a man in a POCSO case after finding that the prosecution was a consenting party and was habitual in sexual intercourse. The High Court also considered the fact that her age was not verified.

The Criminal Appeal before the High Court was filed under Section 374(2) of Criminal Procedure Code, 1973 by the appellant against the judgment of conviction whereby he was sentenced to undergo rigorous imprisonement for 10 years under Section 376(2)(n ) of IPC and rigorous imprisonement for 10 years under section 6 of Protection of Children from Sexual Offences Act, 2012. Both sentences were ordered to run concurrently.

The Single Bench of Justice Arvind Kumar Verma held,“....this Court is of the opinion that the age of the prosecutrix is not verified and not proved by the prosecution that prosecutrix was minor at the time of incident and she was a consenting party and also it is a case of elopement. Therefore, in the above facts and circumstances of the case, aforementioned sections would not be made out against the appellant.”

“ Her uncle and police only took her to her home and lodged an FIR. This shows that she is a consenting party and even the Doctor PW-09 in her deposition has stated that she did not found any external and internal injury on the body of the victim as well as on her private part. The secondary sexual organs were fully developed and the prosecutrix was habitual of sexual intercourse”, it added.

Advocate Anurag Khatri represented the Appellant while Panel lawyer Rishabh Singh Deo represented the Respondent.

Factual Background

The father of the victim lodged a report stating that, failing to find his daughter one day, he suspected that the accused appellant had lured her. The next day, the victim was recovered from the possession of the appellant from Durg. The Trial Court vide the impugned judgment, convicted and sentenced the accused appellant in the aforementioned manner. Aggrieved thereby, the appellant approached the High Court.

Arguments

One of the arguments raised by the appellant was that the victim had herself stated in her examination that she was above 18 years of age. There was also no valid documentary evidence which could ascertain that the age of the victim at the time of the incident was below 18.

Reasoning

The Bench referred to Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 which provides for presumption and determination of age. It was noticed that the prosecution had mainly relied upon the Dakhil Kharij Register, wherein the date of birth of the prosecutrix was mentioned as April 10, 2001. There was no documentary evidence available on record, and also no Kotwari Register had been produced. Even the ossification test of the prosecutrix has not been done.

Noticing that there was no legally admissible evidence about the age of the prosecutrix, that on the date of incident she was a minor, the Bench said, “There is no any kotwari register or ossification report, produced by the prosecution to determine her actual age on the date of incident, that she was below 18 years of age.”

On a perusal of the statements of prosecutrix , her father as well as other prosecution witnesses and after considering the evidence collected by the prosecution, the Bench found that no clinching and legally admissible evidence had been brought by the prosecution to prove the fact that the prosecutrix was minor and less than 18 years of age on the date of incident. The Bench thus set aside the findings given by the trial Court that on the date of incident, the victim was a minor.

It was noted that the prosecutrix in her statement had stated that in the year 2018, the accused appellant used to work as a waiter in a hotel, and he gave her a mobile phone through which they both used to talk to each other. She also stated that in a phone call, he should take her from Gariyaband otherwise she would commit suicide. The accused appellant then took her with him. They both stayed in some hotel where they developed a physical relationship, and later her uncle and the Police came to take her to Gariyaband.

The Bench found that the prosecutrix had nowhere disclosed that at any point of time, the appellant had committed any forceful sexual intercourse with her; rather, it was a mutual consent for physical relations. She had stated that she went with him and remained with him for some days. It was also noted by the Bench that the Doctor had stated that the prosecutrix was habitual of sexual intercourse and she was a consenting party.

Thus, allowing the appeal, the Bench set aside the judgment of conviction. “Appellant stands acquitted of all the charges levelled against him. The appellant is reported to be in jail. He is released forthwith, if not required in any other case”, it held.

Cause Title: Tarun Sen v. State Of Chhattisgarh Through The Magistrate (Neutral Citation: 2025:CGHC:16015)

Appearance:

Appellant: Advocate Anurag Khatri

Respondent: Panel lawyer Rishabh Singh Deo

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Chhattisgarh High CourtJustice Arvind Kumar Verma

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.