Chattisgarh High Court
Dulare Prakash Vishvakarma vs State Of Chhattisgarh on 11 March, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
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2026:CGHC:11697
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 53 of 2023
Dulare Prakash Vishvakarma S/o Late Ramkumar Vishvakarama Aged About
23 Years R/o Karbala, Kundrubadi, P.S.-City Kotwali, District-Dhamtari (C.G.)
... Appellant
versus
State of Chhattisgarh Through P.S.-Hirri, District-Bilaspur (C.G.)
... Respondent
For Appellant : Mr. G.V. Kutumba Rao, Advocate
For Respondent/State : Mr. Shubham Bajpai, Panel Lawyer.
Digitally
signed by
ABHISHEK
ABHISHEK
SHRIVAS
SHRIVAS
Date:
Hon'ble Shri Ramesh Sinha, Chief Justice
2026.03.17
11:11:50
+0530
Order on Board
11.03.2026
1. It transpires from the order-sheet dated 03.05.2023 passed by a Coordinate Bench of this Court that the victim along with her father was present before the Court and, upon being asked, they expressed no objection to the suspension of sentence and grant of bail to the appellant. Further, as per the order-sheet dated 22.08.2023, the victim and her father were again present before the Court and on that day, the father of the victim submitted that the victim and the appellant had solemnized their marriage before the Arya Samaj, however, he expressed that he is not aware as to whether the appellant would keep the victim with him after being released on bail. Therefore, he sought some time to verify the 2 same from the appellant. On the request made by the father of the victim, the case was adjourned for further consideration of I.A. No. 01/2023.
2. The case has been listed today before this Court for hearing on I.A. No. 01 of 2023, which is an application for suspension of sentence and grant of bail. However, with the consent of learned counsel for the parties and considering the period of detention already undergone by the appellant, the appeal is heard finally.
3. In view of above, I.A. No. 01 of 2023 stands disposed of.
4. This criminal appeal arises out of the judgment of conviction and order of sentence dated 05.12.2022 passed by learned ASJ/ 1 st FTSC (POCSO Act), District - Bilaspur (C.G.) in Special Sessions Case No. 74/2019 whereby the appellant has been convicted and sentenced in the following manner:
Sentence Conviction
Under Section 363 of the Rigorous Imprisonment for 05 years
Indian Penal Code (IPC) with fine amount of Rs. 200/-, in
default of payment of fine further RI
for 06 months.
Under Section 366-A of the Rigorous Imprisonment for 05 years
IPC. with fine amount of Rs. 200/-, in
default of payment of fine further RI
for 06 months.
Under Section 5(L)/6 of Rigorous Imprisonment for 10 years
Protection of Children from with fine amount of Rs. 300/-, in
Sexual Offences Act, 2012 default of payment of fine further RI
(In short, 'POCSO Act'). for 02 years.
(All the sentences will run concurrently)
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5. The prosecution story, in brief, is that the complainant / victim's father resides with his family at the place mentioned in the First Information Report, i.e., Police Aarakhi Kendra - City Kotwali, Bilaspur, and he has three children. On the date of the incident, i.e., 14.03.2019, his minor daughter/victim, aged 17 years, who was studying in Class 11, had gone to school at about 12:00 PM, but did not return. When inquiries were made among nearby people and relatives and the victim could not be traced, on the same date the complainant/victim's father lodged an oral report, on the basis of which a missing person report (Gum Insan No. 09/19, Rojnamcha Sanha No. 50/19) was registered at Police Aarakshi Kendra - City Kotwali regarding kidnapping of his minor daughter/victim by an unknown person from her lawful guardianship. Thereafter, FIR No. 88/21 under Section 363 of the IPC was registered against an unknown person.
6. During the course of investigation, statements of the victim's parents and her friends Kumari Durgeshwari and Rupbai were recorded as per their narration and documented. On 15.03.2019, the Investigating Officer visited the place of occurrence and prepared the spot map (Nazri Naksha) as per the information provided by the victim's father and mother. A photocopy of the victim's Class 10 marksheet was seized after comparison with the original and prepared under seizure memo. A memorandum was sent to the In-charge, Cyber Cell, Bilaspur seeking call detail records and location details of mobile numbers and the hard copies of the call details received were annexed to the case diary.
7. On 12.05.2019, the police along with the victim's father, brother, and staff constable Jyoti Tiwari went to Village Devbahal, Police Station Khariar, Odisha, and recovered the victim from the possession of the accused in 4 the presence of witnesses, and a recovery memo was prepared accordingly. From the accused, one black coloured Oppo mobile phone was seized in the presence of witnesses. With the consent of the victim's parents, the victim was sent for medical examination (MLC) at SIMS Hospital, Bilaspur along with constable Asha Netam, and the medical report was obtained. Two sealed packets given by the doctor containing a vaginal slide and a pink coloured panty were seized under a seizure memo.
8. On the same date i.e., 12.05.2019, the accused was arrested in the presence of witnesses and an arrest memo was prepared. Intimation of arrest was given to his relatives, and the accused was also sent for medical examination to District Hospital, Bilaspur along with constable Satish Bhoi, after which the medical report was obtained and attached. The police statement of the victim was recorded, and she was produced before the Child Welfare Committee, Bilaspur, from where Form-24 report was obtained and attached. Supplementary statements of the victim's parents and the police statement of Damodar Yadav were also recorded. On 09.07.2019, a memorandum was sent to the Principal, Om Vidya Mandir, Karbala Road, Bilaspur requesting the admission register. The original school admission register was seized from Principal Smt. Kanta Thawait and a certified copy was obtained, while the original was returned on supurdnama. The seized articles were sent for chemical examination to the Regional Forensic Science Laboratory, Bilaspur, through a constable along with a memorandum issued from the office of the Superintendent of Police, and the acknowledgement receipt and FSL report were obtained and attached to the record.
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9. After completion of the investigation, on 09.07.2019, a charge-sheet was filed against accused Dulare Prakash Vishwakarma under Sections 363, 366, and 376 of the Indian Penal Code and Sections 4, 5, 6, and 8 of the POCSO Act.
10. On perusal of the presented charge sheet and the attached documents, prima facie it appeared that the accused had committed the offence under Sections 363, 366-A of the IPC and Section 5(L)/6 of the POCSO Act, hence charges were framed under the said Sections. On being read out and explained the charges to the accused, the accused abjured his guilt and pleaded trial, saying that he is innocent.
11. In order to establish the charge against the appellant, the prosecution examined 15 witnesses and exhibited a total of 22 documents on record. The statement of the appellant under Section 313 of the CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the appellant/accused for the offences punishable under Sections 363, 366-A of the IPC and Section 5(L)/6 of the POCSO Act, sentenced him accordingly as mentioned in para 4 of the judgment. Hence, this appeal.
12. Learned counsel for the appellant argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. It is further submitted that the learned trial court has wrongly convicted the appellant solely on the basis of the admission register (Dakhil-Kharij Register) regarding the age of the victim. The said document has been duly challenged by the defence, and the prosecution has utterly failed to conclusively prove that the victim was a minor, as alleged in their case. It 6 is also submitted that the prosecution has failed to establish the age of the victim with certainty. No medical examination for determination of age was conducted by the prosecution to substantiate its case. In such circumstances, learned trial Court ought not to have placed reliance upon the document produced by the prosecution, particularly when the same was not properly proved during the course of evidence. Learned trial court failed to appreciate that the victim was a consenting party, as is evident from the material available on record. It is further evident that the victim voluntarily entered into a relationship with the appellant and subsequently both of them got married. Since the prosecution failed to properly prove the age of the victim during the trial, the learned trial Court ought not to have convicted the appellant. It is humbly submitted that when a situation of doubt or suspicion arises in a criminal case, the benefit of doubt must necessarily be extended to the accused. However, in the present case, the learned trial Court has acted contrary to this settled principle of criminal jurisprudence and has wrongly convicted the appellant. As such, criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside.
13. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submits that a perusal of the statements of the witnesses, particularly the victim (PW-
4) and Dr. Smita Shraff (PW-7), clearly shows that they have made clear and unambiguous statements regarding the commission of the offence by the accused/appellant. It is well settled that the consent of a minor victim is legally immaterial. In the present case, the accused induced the victim away from the lawful guardianship of her natural guardian and thereafter established sexual relations with her. The prosecution examined several witnesses before the learned trial Court whose testimonies fully support 7 the prosecution case. It also submitted that after appreciating the entire evidence, both oral and documentary, the learned trial Court rightly concluded that the charges framed against the accused/appellant were proved beyond reasonable doubt and accordingly convicted him for the offences under the relevant provisions of the IPC and the POCSO Act, 2012, therefore, the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for.
14. I have heard the learned counsel for the parties and perused the record of the trial Court with utmost circumspection.
15. In relation to the age of the victim, the Investigating Officer of the case, Assistant Sub-Inspector Dinesh Tiwari (PW-14), in his inquiry regarding the victim's age, gave evidence that on 15.03.2019 he seized the victim's 10th Class mark-sheet vide Ex.P-6, in which the victim's date of birth is recorded as 21.09.2002. The father of the victim/complainant (PW-01) also stated that the date of birth of his daughter is 21.09.2002.
16. In this regard, the prosecution has produced the evidence of the victim's parents concerning her date of birth. The victim's mother (PW-2), in her deposition, stated that at the time of the incident the victim was a minor and further gave evidence that the Police had seized the victim's mark sheet in her presence as per seizure memo (Ex.P-6). Likewise, in the examination-in-chief, the victim's father (PW-01) also stated that the age of the victim is 21.09.2002.
17. So far as to prove the age of victim is concerned, the documentary evidence regarding the date of birth of the victim (PW-4) being 21.09.2002, her High School Mark-sheet (Article - A) is present on record in an irrefutable manner, which there is no reason to disbelieve. 8 The High School Mark-sheet of the victim has been seized, in which the date of birth of the victim (PW-4) has also mentioned as 21.09.2002. The alleged incident is of 14.03.2019. Hence, during this period, the age of the victim (PW-4) is proved to be 16 years 5 months and 21 days of age, and the trial Court has also held in para 25 of the impugned judgment that at the time of incident, the age of the victim was 16 years 05 months and 21 days, and if consent was given for sexual intercourse on the date of incident, it does not amount to an offence under the POCSO Act.
18. In the matter of Tilku Alias Tilak Singh V. The State Of Uttarakhand, reported in 2025 INSC 226, the Supreme Court has held that he victim, who is between 16 to 18 years of age is very much in the age of understanding as to what was right and wrong for her. Relevant para of the said judgment states as under:-
"16. Even if the finding of the learned Single Judge of the High Court that the prosecutrix was between 16 to 18 years of age is to be accepted, in our view, the offence under Sections 363 and 366 IPC would still not be made out.
17. This Court in the case of S. Vardarajan v. State of Madras, reported in 1964 SCC OnLine SC 36 had an occasion to consider almost similar facts that arise for consideration in the present case. This Court has observed thus:
"7. .....It will thus be seen that taking or enticiting away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to 9 what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub- Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back 10 to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her......."
18. It is thus clear that the prosecutrix, who according to the learned Single Judge of the High Court, was between 16 to 18 years of age was very much in the age of understanding as to what was right and wrong for her.
19. From the evidence of the prosecutrix itself, it will be clear that she had voluntarily gone along with the appellant herein, travelled to various places and also resided as husband and wife at Dehradun."
19. The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 366 of the IPC ?
20. Though, the doctor who conducted medical examination of the victim has concluded in her statement that there was no fresh injury or any mark of resistance was present on the body of the victim. As such, there is no corroborative evidence placed by the prosecution to prove the guilt of the accused for the offence punishable under Section 366 of the IPC.
21. From the perusal of the evidence of the victim girl (PW-04), it appears that victim girl was simply accompanied the accused without being enticed or influenced. Mere accompanying a person without being induced does not constitute an offence under Section 366 of the IPC. Though, the learned Panel Lawyer vehemently contended that age of the victim girl has proved by the prosecution that she is minor as on the date of incident, nevertheless, in order to convict the accused for the offence under Section 366 of the IPC, other two essential ingredients i.e. the 11 victim girl must be induced by the accused and she must be induced by the accused person to go from a place or to do any act with an intent that such girl may be knowing that it is likely that she will be forced or seduced to illicit intercourse by another person. As such, the prosecution has failed to prove the ingredients of offence under Section 366 of the IPC.
22. So far as the issue of forceful sexual intercourse by the appellant upon the victim is concerned, the victim (PW-04) stated in her deposition that the incident took place on 14.03.2019. Her school timing was from 12:00 PM to 05:00 PM. She and the accused had liked each other for about three years prior to the incident, and they had already planned to go to Odisha on the day of the incident. On that day, she left her house to go to school and was waiting for the accused near Thakur Dev Temple. The accused arrived there on a motorcycle along with his friend Neeraj, and he dropped the at the railway station. From Bilaspur, the accused and she took a train to Raipur, and from there they boarded another train at around 8:30 PM to Khariar Road, Odisha. In Khariar, a friend of the accused came to receive them and took them to Village Devbahar, where they stayed for 15 days. Thereafter, the accused and she went to Khariar, where the accused started working in a clothing shop, and she used to go to work at a general store. They stayed in Khariar for about one month. During their stay there, they had physical relations several times. After that, the accused received a phone call from a police officer named Tiwari from Kotwali Police Station, who informed him that the police were coming to take them back.
23. The father of the victim/complainant (PW-01), in his examination-in-chief has stated that he identified the victim as his daughter and stated that at 12 the time of the incident, the victim was 16 years old. Her date of birth is 21.09.2002. At that time, she was studying in Class 11 at XXXX. On 14.03.2019, she left the house at about 11:00 AM to go to school along with her friend Durgeshwari Verma. However, she did not return home from school by evening, while her friend Durgeshwari returned home. When we asked Durgeshwari about my daughter, she told us that while they were going to school, two boys arrived on a motorcycle near the temple, and one of them was the accused. They took my daughter with them on the motorcycle. After that, we searched for the victim around the house and also went to the house of the accused, but he was not present there. The accused's aunt (chachi) told us that the accused had taken some clothes with him saying that he was going to attend a wedding. Thereafter, my wife and I went to City Kotwali Police Station, where I lodged a report stating that someone had taken my daughter away. The report lodged by me is Exhibit P-1, and my signatures are present on portion 'A' of the document. The police officers questioned me, recorded my statement, and took photographs. At the time of giving my statement, I had expressed suspicion that the accused had taken my daughter away.
24. Thus, the evidence presented by the parents of the victim (PW-01 & PW-
02) merely establishes that the victim and the accused had liked each other for about three years prior to the incident, and they had already planned to go to Odisha on the day of the incident. On that day, she left her house to go to school and was waiting for the accused near Thakur Dev Temple without informing anyone, and despite search, she could not be found, leading to registration of a missing report. 13
25. From the medical and expert evidence placed on record, it is evident that no conclusive opinion has been given with respect to the allegation of forcible intercourse. The Medical Officer, Dr. Ismita Sharaf (PW-7), in her deposition, specifically stated that during the examination, the victim was in full consciousness and was cooperating with the examination. She was of normal physique. Her blood pressure was 120/70 mmHg and pulse rate was 86 per minute. The date of her last menstruation was 22.04.2019, and the pregnancy test was negative. Her axillary hair, pubic hair, and breasts were fully developed, and her abdomen was normal. The uterus was normal, and no external injuries were found on her body. The pubic hair and external genital area were fully developed, and no injury marks were found. The cervix and vagina were healthy, and no injury marks were present. The hymen was found torn and healed. Since the hymen was already torn and healed and the victim appeared to be habitual to sexual intercourse, no definite opinion could be given regarding recent sexual intercourse.
26. From the testimonies available on record, particularly that of the victim (PW-04), it is evident that the victim and the appellant were acquainted with each other for about three years prior to the incident and had developed a relationship of familiarity. The victim herself has categorically stated that both of them had planned to go to Odisha together and that she voluntarily left her house and met the appellant near Thakur Dev Temple. The victim further admitted that she travelled with the appellant to Raipur and thereafter to Khariar Road, Odisha, and stayed with him for a considerable period of time.
27. The evidence of the victim further reveals that during their stay in Odisha, both of them resided together and also worked separately at different 14 establishments. The victim has also stated that during that period she and the appellant had physical relations several times. The conduct of the victim, as reflected from her own testimony, does not indicate any element of force, threat or coercion exercised by the appellant.
28. The medical evidence placed on record also assumes significance. As per the testimony of the Medical Officer (PW-07), no external or internal injuries were found on the body of the victim and the hymen was found torn and healed. The doctor has further opined that the victim appeared to be habituated to sexual intercourse and therefore no definite opinion could be given regarding recent sexual intercourse. Thus, the medical evidence does not support the allegation of forcible sexual intercourse.
29. It is a settled principle of criminal jurisprudence that though conviction in sexual offences can be based on the sole testimony of the victim, such testimony must inspire confidence and must be of sterling quality. In the present case, when the testimony of the victim is considered in the light of the surrounding circumstances, the medical evidence and the conduct of the parties, it creates serious doubt regarding the prosecution version that the victim was taken away or subjected to sexual intercourse against her will.
30. Considering the entire evidence available on record, it appears that the victim voluntarily accompanied the appellant and continued to stay with him for a considerable period without raising any alarm or complaint. The material on record clearly indicates that both the victim and the appellant were in a consensual relationship and had left together out of their own volition. In such circumstances, the essential ingredients required to constitute the offences under Sections 363 and 366-A of the IPC as well 15 as Section 5(L)/6 of the POCSO Act are not satisfactorily established by the prosecution beyond reasonable doubt.
31. For the foregoing reasons, this Court is of the considered opinion that the prosecution has failed to prove the charges against the appellant beyond reasonable doubt. Accordingly, the criminal appeal deserves to be and is hereby allowed. The impugned judgment of conviction and order of sentence dated 05.12.2022 passed by the learned ASJ/1st FTSC (POCSO), Bilaspur in Special Sessions Case No. 74/2019 is set aside. The appellant is acquitted of all the charges levelled against him.
32. Keeping in view of the provisions of Section 437-A CrPC (now Section 481 of BNSS), the appellant is directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon'ble Supreme Court.
33. Registry is directed to send a copy of this judgment and transmit the original records to the trial Court concerned for necessary information and compliance, forthwith.
Sd/-
(Ramesh Sinha) Chief Justice Abhishek