Chattisgarh High Court
Sahil Sahu @ Tingu @ Sukalu Sahu vs State Of Chhattisgarh on 3 January, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2025:CGHC:313-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1147 of 2024
Sahil Sahu @ Tingu @ Sukalu Sahu S/o Shri Rajkumar Sahu Aged About 20
Years R/o Narayanpur Khaira, P.S. Sargaon, District Mungeli, Chhattisgarh,
Present address : Atal Awas J. Block, Chingrajpara, P.S. Sarkanda, District
Bilaspur, Chhattisgarh
... Appellant
versus
State Of Chhattisgarh Through The District Magistrate, District Bilaspur
Chhattisgarh
... Respondent
(Cause title taken from Case Information System)
For Appellant : Mr. M.P.S. Bhatia, Advocate
For Respondent/State : Mr. Malay Kumar Jain, Panel Lawyer
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Order on Board
Per Ramesh Sinha, C.J.
03/01/2025
1. Vide order dated 02.08.2024, the notice issued to the father of the
victim (PW-1) has been served upon him, but no one appears on his
behalf to record his submission in the case, therefore, with the consent
Digitally
of the parties, the matter has been heard finally at the motion stage
signed by
VEDPRAKASH
DEWANGAN
itself.
2. The present appeal has been filed by the appellant under Section
374(2) of the Code of Criminal Procedure, 1973 against the impugned
judgment of conviction and sentence dated 12.01.2024 passed by
learned Additional Sessions Judge/First FTSC, Bilaspur, in Special
Sessions Case (POCSO Act) No. 130 of 2022, whereby the appellant
has been convicted and sentenced in the following manner:-
Conviction Sentence
U/s. 363 of IPC R.I. for 3 years and fine of Rs. 100/-,
in default of payment of fine
additional imprisonment of 10 days.
U/s. 366 of IPC R.I. for 5 years and fine of Rs. 200/-,
in default of payment of fine
additional imprisonment of 20 days.
U/s. 376(3) of IPC R.I. for 20 years and fine of Rs.
500/-, in default of payment of fine
additional imprisonment of 50 days.
U/s. 5(L)/6 of POCSO Act, R.I. for 20 years and fine of Rs.
2012 (since the appellant has 500/-, in default of payment of fine
been sentenced R.I. for 20 additional imprisonment of 50 days.
years and fine of Rs. 500/-, in
default of payment of fine
additional imprisonment for 50
days, no separate sentence
has been awarded to the
appellant for his conviction
under Section 376(2)(n) of
IPC)
3. The brief facts of the case are that the father of the victim (PW-1) had
lodged a missing report on 24.07.2022 that his minor daughter is
missing since 23.07.2022 and has not returned from her school and
her whereabouts could not be traced out. The police has registered
the FIR (exhibit P-1) for the offence under Section 363 of IPC against
unknown person and started investigation. During the investigation the
victim was recovered on 05.08.2022 from the possession of the
appellant at New Bus Stand, Tifra, Bilaspur and a recovery
Panchnama/Exhibit P-9 was prepared. The victim was sent for her
medical examination to District Hospital, Bilaspur, where she was
medically examined by PW-18/Dr. Mamata Saluja, who after medically
examined her gave report/Exhibit P-13. During her examination no
external injuries have been found on her body. Two slides of her
vaginal swab were prepared, sealed and handed over to police for
chemical examination. The victim was referred for her X-ray
examination for age determination and opined that the victim is
habitual of intercourse.
*******Spot map (exhibit P-6) was prepared by the police and Exhibit
P-5 was prepared by the Patwari. With respect to the age and date of
birth of the victim, the police has seized the school register from
Government Higher Secondary School, Tifra, Bilaspur vide seizure
memo/exhibit P-22 and after retaining the attested true copy of the
school register/exhibit P-23C, the original register was returned to the
school. According to the school register, the date of birth of the victim
is 28.03.2008. The appellant was arrested on 05.08.2022 and he too
was sent for his medical examination to District Hospital, Bilaspur,
where PW-16/Dr. Prashant Gupta has medically examined him and no
injuries have been found on his body and opined that there is no
evidence found which can prove that he is unable to perform sexual
intercourse and his report is exhibit P-27A. The vaginal slide and
underwear of the victim and the underwear of the appellant also were
sent for chemical examination to FSL, Bilaspur from where report
exhibit P-34 was received. According to the FSL report, no semen and
sperm were found in the vaginal slide and underwear of the victim.
However, in the underwear of the appellant, semen and sperm were
found.
*******The statement of the victim as well as other witnesses under
Section 161 of CRPC and the statement of the victim under Section
164 of CRPC have been recorded and after completion of usual
investigation, charge sheet has been filed before the learned trial
Court for the offence under Sections 363, 366A and 376 of IPC and
Section 4 of POCSO Act.
4. The learned trial Court has initially framed charge against the appellant
for the offence under Sections 363, 366A, 376(3) of IPC and Section
5L/6 of POCSO Act. The appellant denied the charge and claimed
trial. After recording evidence of the parties, on 06.01.2024, the charge
was amended and it was re-framed as under Sections 363, 366,
376(3) and 376(2)(n) of IPC and Section 5L/6 of POCSO Act.
Opportunity to raise objection was given to the appellant, but he
submitted that he has no objection in amending the charge and has
not claimed for re-cross examination of any witnesses.
5. In order to prove its case, the prosecution has examined as many as
18 witnesses. Statement of the appellant under Section 313 of CRPC
has also been recorded, in which he denied the circumstances
appears against him, plead innocence and has submitted that he has
been falsely implicated in the offence.
6. After appreciation of oral as well as documentary evidence led by the
prosecution, the learned trial Court has convicted and sentenced the
appellant. As mentioned in the earlier part of the judgment, hence this
appeal.
7. Learned counsel for the appellant would submit that the prosecution
has failed to prove its case beyond reasonable doubt. There are
material omissions and contradictions in the evidence of prosecution
witnesses. The school register has not been proved by the prosecution
in accordance with law to show that the victim was minor on the date
of incident. The author of the school register has not been examined.
In absence of any cogent and clinching evidence with respect to the
age of the victim, she cannot be held minor. No any birth certificate or
ossification test report have been submitted by the prosecution to
prove her age. He would further submit that the victim, being a major
girl, having love affair with the appellant, herself eloped with him and
has made consensual physical relations without raising any alarm or
any protest. No injuries have been found on the body of the victim.
When she herself had gone with the appellant, no offence of either
kidnapping or procuring a minor girl or even the offence of rape have
been made out against the appellant and he is entitled for acquittal.
8. On the other hand, the learned counsel for the State opposes the
submissions made by learned counsel for the appellant and has
submitted that the prosecution has proved its case beyond reasonable
doubt. But for minor omission or contradictions, the evidence of the
victim as well as other witnesses are reliable to convict the appellant.
The age of the victim is proved by the entries in the school
record/Exhibit P-23C, which is proved by PW-9, who is the
Headmistress of the school. From the school record, the victim is
found to be minor on the date of incident and she was being
kidnapped by the appellant and kept away from her lawful
guardianship. She was being procured by the appellant for illicit
intercourse and has committed rape upon her repeatedly. Therefore,
after considering the entire evidence available on record, the learned
trial Court has rightly convicted the appellant and sentenced him and
his appeal is liable to be dismissed.
9. We have heard learned counsel for the parties and perused the record.
10. The first and foremost question arises for consideration is the age and
date of birth of the victim as to whether on the date of incident she was
minor or not?
11. The prosecution has mainly relied upon the school register/exhibit P-
23C, which is sought to be proved by PW-9, who is the Headmistress
of the school. She stated in her evidence that since she is posted as
Headmistress of the school since last 10 years, the police has seized
the school register from her vide seizure memo/exhibit P-22. After
retaining the attested true copy of the school register/exhibit P-23C,
the original register was returned back. According to the school
register, the date of birth of the victim is 28.03.2008 and she was
admitted on 29.06.2019 in class 6 th. in the school. In cross-
examination, she admitted that the relevant entries of the date of birth
of the victim has not been made by her. She further admitted on what
basis the entries relating to her date of birth has been made, she did
not know. She voluntarily stated that the entries have been made on
the basis of TC and mark sheet. Except the school register/exhibit P-
23C, there is no documentary evidence led by the prosecution.
12. PW-2/the victim, has stated in her evidence that she did not know her
date of birth, but the year of her birth is 2008. When the leading
question has been asked from her by the prosecution, she admitted
that in the school, her date of birth is recorded as 28.03.2008. In
cross-examination, she stated that she did not know, as to who has
got recorded her date of birth in the school. She had studied in Silver
Bells School from KG-1 up to class-3. She has got admitted in the
Government Higher Secondary School in class-4 th. She did not know,
as to whether her birth certificate has got prepared or not. She also did
not know as to on what basis her date of birth is recorded in Tifra
school.
13. PW-1/the father of the victim, has stated that his daughter is aged
about 14 years and her date of birth is 28.03.2008. In cross-
examination, he stated that he has not got prepared the birth
certificate of his daughter. He did not remember, as to who has got her
admitted in the school. He further admitted that on what age she was
admitted in the school. He further stated that the victim was admitted
in Silver Bells Private School, Tifra in nursery class, but he could not
remember as to whether any certificate/mark sheet was given to her
from Silver Bells School. He admitted further that from Silver Bells
School no certificate or mark sheet was provided to police. He further
admitted that on what basis the date of birth of the victim is recorded in
the school, he did not know. He submitted her class 5 th and 8th mark
sheet to the police.
14. PW-3, who is the mother of the victim has also stated that the date of
birth of her daughter is 28.03.2008. In cross examination, she admitted
that they have not got prepared her birth certificate and she has not
gone to school for her admission. She further admitted that on what
basis her date of birth is recorded in the school, she did not know and
she has not disclosed her date of birth to the police at the time of
recording of her police statement.
15. PW-5, uncle of the victim has also did not know about her date of birth.
16. The admissibility and evidentiary value of the school register for
determination of the age of the victim has been considered by the
Hon'ble Supreme Court in the matter of Alamelu and Another Vs.
State, represented by Inspector of Police, 2011(2) SCC 385. In
paragraphs 40, 42, 43, 44 and 48 of its judgment, the Hon'ble
Supreme Court has observed as under:
"40. Undoubtedly, the transfer certificate, Ex.P16
indicates that the girl's date of birth was 15th
June, 1977. Therefore, even according to the
aforesaid certificate, she would be above 16 years
of age (16 years 1 month and 16 days) on the date
of the alleged incident, i.e., 31st July, 1993. The
transfer certificate has been issued by a
Government School and has been duly signed by
the Headmaster. Therefore, it would be admissible
in evidence under Section 35 of the Indian
Evidence Act. However, the admissibility of such a
document would be of not much evidentiary value
to prove the age of the girl in the absence of the
material on the basis of which the age was
recorded. The date of birth mentioned in the
transfer certificate would have no evidentiary
value unless the person, who made the entry or
who gave the date of birth is examined.
42. Considering the manner in which the facts
recorded in a document may be proved, this Court
in the case of Birad Mal Singhvi Vs. Anand
Purohit, observed as follows:-
"The date of birth mentioned in the scholars'
register has no evidentiary value unless the
person who made the entry or who gave the
date of birth is examined....Merely because
the documents Exs. 8, 9, 10, 11, and 12 were
proved, it does not mean that the contents of
documents were also proved. Mere proof of
the documents Exs. 8, 9, 10, 11 and 12 would
not tantamount to proof of all the contents or
the correctness of date of birth stated in the
documents. Since the truth of the fact,
namely, the date of birth of Hukmi Chand and
Suraj Prakash Joshi was in Issue, mere proof
of the documents as produced by the
aforesaid two witnesses does not furnish
evidence of the truth of the facts or contents
of the documents. The truth or otherwise of
the facts in issue, namely, the date of birth of
the two candidates as mentioned in the
documents could be proved by admissible
evidence i.e. by the evidence of those
persons who could vouchsafe for the truth of
the facts in issue. No evidence of any such
kind was produced by the respondent to
prove the truth of the facts, namely, the date
of birth of Hukmi Chand and of Suraj Prakash
Joshi. In the circumstances the dates of birth
as mentioned in the aforesaid documents
1988 (Supp) SCC 604 have no probative
value and the dates of birth as mentioned
therein could not be accepted."
43. The same proposition of law is reiterated by
this Court in the case of Narbada Devi Gupta Vs.
Birendra Kumar Jaiswal, where this Court
observed as follows:-
"The legal position is not in dispute that
mere production and marking of a document
as exhibit by the court cannot be held to be a
due proof of its contents. Its execution has to
be proved by admissible evidence, that is, by
the "evidence of those persons who can
vouchsafe for the truth of the facts in issue".
44. In our opinion, the aforesaid burden of proof
has not been discharged by the prosecution. The
father says nothing about the transfer certificate in
his evidence. The Headmaster has not been
examined at all. Therefore, the entry in the transfer
certificate can not be relied upon to definitely fix
the age of the girl.
48. We may further notice that even with reference
to Section 35 of the Indian Evidence Act, a public
document has to be tested by applying the same
standard in civil as well as criminal proceedings.
In this context, it would be appropriate to notice
the observations made by this Court in the case of
Ravinder Singh Gorkhi Vs. State of U.P.4 held as
follows:-
"The age of a person as recorded in the
school register or otherwise may be used for
various purposes, namely, for obtaining
admission; for obtaining an appointment; for
contesting election; registration of marriage;
obtaining a separate unit under the ceiling
laws; and even for the purpose of litigating
before a civil forum e.g. necessity of being
represented in a court of law by a guardian or
where a suit is filed on the ground that the
plaintiff being a minor he was not
appropriately represented therein or any
transaction made on his behalf was void as
he was a minor. A court of law for the
purpose of determining the age of a (2006) 5
SCC 584 party to the lis, having regard to the
provisions of Section 35 of the Evidence Act
will have to apply the same standard. No
different standard can be applied in case of
an accused as in a case of abduction or rape,
or similar offence where the victim or the
prosecutrix although might have consented
with the accused, if on the basis of the
entries made in the register maintained by
the school, a judgment of conviction is
recorded, the accused would be deprived of
his constitutional right under Article 21 of the
Constitution, as in that case the accused may
unjustly be convicted."
17. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &
Others, 2022 (8) SCC 602, while considering various judgments, the
Hon'ble Supreme Court has observed in para 33 as under:
"33. What emerges on a cumulative consideration
of the aforesaid catena of judgments is as
follows:
33.2.2. If an application is filed before the Court
claiming juvenility, the provision of sub-section
(2) of section 94 of the JJ Act, 2015 would have to
be applied or read along with sub-section (2) of
section 9 so as to seek evidence for the purpose
of recording a finding stating the age of the
person as nearly as may be.
xxxx
xxxx
xxxx
33.3. That when a claim for juvenility is raised, the
burden is on the person raising the claim to
satisfy the Court to discharge the initial burden.
However, the documents mentioned in Rule 12(3)
(a)(i), (ii), and (iii) of the JJ Rules 2007 made under
the 33 Act, 2000 or sub-section (2) of section 94 of
JJ Act, 2015, shall be sufficient for prima facie
satisfaction of the Court. On the basis of the
aforesaid documents a presumption of juvenility
may be raised.
33.4. The said presumption is however not
conclusive proof of the age of juvenility and the
same may be rebutted by contra evidence let in by
the opposite side.
33.5. That the procedure of an inquiry by a Court
is not the same thing as declaring the age of the
person as a juvenile sought before the JJ Board
when the case is pending for trial before the
concerned criminal court. In case of an inquiry,
the Court records a prima facie conclusion but
when there is a determination of age as per sub-
section (2) of section 94 of 2015 Act, a declaration
is made on the basis of evidence. Also the age
recorded by the JJ Board shall be deemed to be
the true age of the person brought before it. Thus,
the standard of proof in an inquiry is different
from that required in a proceeding where the
determination and declaration of the age of a
person has to be made on the basis of evidence
scrutinised and accepted only if worthy of such
acceptance.
33.6. That it is neither feasible nor desirable to lay
down an abstract formula to determine the age of
a person. It has to be on the basis of the material
on record and on appreciation of evidence
adduced by the parties in each case.
33.7 This Court has observed that a hyper.
technical approach should not be adopted when
evidence is adduced on behalf of the accused in
support of the plea that he was a juvenile.
33.8. If two views are possible on the same
evidence, the court should lean in favour of
holding the accused to be a juvenile in borderline
cases. This is in order to ensure that the benefit of
the JJ Act, 2015 is made applicable to the juvenile
in conflict with law. At the same time, the Court
should ensure that the JJ Act, 2015 is not
misused by persons to escape punishment after
having committed serious offences.
33.9. That when the determination of age is on the
basis of evidence such as school records, it is
necessary that the same would have to be
considered as per Section 35 of the Indian
Evidence Act, Inasmuch as any public or official
document maintained in the discharge of official
duty would have greater credibility than private
documents.
33.10. Any document which is in consonance with
public documents, such as matriculation
certificate, could be accepted by the Court or the
33 Board provided such public document is
credible and authentic as per the provisions of the
Indian Evidence Act viz., section 35 and other
provisions.
33.11. Ossification Test cannot be the sole
criterion for age determination and a mechanical
view regarding the age of a person cannot be
adopted solely on the basis of medical opinion by
radiological examination. Such evidence is not
conclusive evidence but only a very useful
guiding factor to be considered in the absence of
documents mentioned in Section 94(2) of the JJ
Act, 2015."
18. Recently, in case of P. Yuvaprakash Vs. State represented by
Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme
Court has held in para 14 to 17 as under:
"14, Section 94 (2)(iii) of the 33 Act clearly
Indicates that the date of birth certificate from the
school or matriculation or equivalent certificate by
the concerned examination board has to be firstly
preferred in the absence of which the birth
certificate issued by the Corporation or Municipal
Authority or Panchayat and it is only thereafter in
the absence of these such documents the age is
to be determined through "an ossification test" or
"any other latest medical age determination test"
conducted on the orders of the concerned
authority, l.e. Committee or Board or Court. In the
present case, concededly, only a transfer
certificate and not the date of birth certificate or
matriculation or equivalent certificate was
considered. Ex. C1, i.e., the school transfer
certificate showed the date of birth of the victim as
11.07.1997. Significantly, the transfer certificate
was produced not by the prosecution but instead
by the court summoned witness, i.e., CW-1. The
burden is always upon the prosecution to
establish what it alleges; therefore, the
prosecution could not have been. fallen back upon
a document which it had never relied upon.
Furthermore, DW-3, the concerned Revenue
Official (Deputy Tahsildar) had stated on oath that
the records for the year 1997 in respect to the
births and deaths were missing. Since it did not
answer to the description of any class of
documents mentioned in Section 94(2) (i) as it was
a mere transfer certificate, Ex C-1 could not have
been relied upon to hold that M was below 18
years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki
vs. State of Uttar Pradesh & Ors. this court
outlined the procedure to be followed in cases
where age determination is required. The court
was dealing with Rule 12 of the erstwhile Juvenile
Justice Rules (which is in pari materia) with
Section 94 of the JJ Act, and held as follows:
"20. Rule 12 of the JJ Rules, 2007 deals with
the procedure to be followed in
determination of age. The juvenility of a
person in conflict with law had to be decided
prima facie on the basis of physical
appearance, or documents, if available. But
an inquiry into the determination of age by
the Court or the JJ Board was by seeking
evidence by obtaining: (1) the matriculation
or equivalent certificates, if available and in
the absence whereof; (ii) the date of birth
certificate from the school (other than a play
school) first attended; and in the absence
whereof; (iii) the birth certificate given by a
corporation or a municipal authority or a
panchayat. Only in the absence of either (i),
(ii) and (iii) above, the medical opinion could
be sought from a duly constituted Medical
Board to declare the age of the juvenile or
child. It was also provided that while
determination was being made, benefit could
be given to the child or juvenile by
considering the age on lower side within the
margin of one year."
16. Speaking about provisions of the Juvenile
Justice Act, especially the various options in
Section 94 (2) of the JJ Act, this court held in
Sanjeev Kumar Gupta vs. The State of Uttar
Pradesh & Ors that:
"Clause (i) of Section 94 (2) places the date
of birth certificate from the school and the
matriculation or equivalent certificate from
the 2021 (12) SCR 502 [2019] 9 SCR 735
concerned examination board in the same
category (namely (i) above). In the absence
thereof category (ii) provides for obtaining
the birth certificate of the corporation,
municipal authority or panchayat. It is only in
the absence of (i) and (ii) that age
determination by means of medical analysis
is provided. Section 94(2) (a)(i) indicates a
significant change over the provisions which
were contained in Rule 12(3)(a) of the Rules
of 2007 made under the Act of 2000. Under
Rule 12(3)(a) (i) the matriculation or
equivalent certificate was given precedence
and it was only in the event of the certificate
not being available that the date of birth
certificate from the school first attended,
could be obtained. In Section 94(2)(1) both
the date of birth certificate from the school
as well as the matriculation or equivalent
certificate are placed in the same category.
17. In Abuzar Hossain Gulam Hossain Vs. State of
West Bengal, this court, through a three-judge
bench, held that the burden of proving that
someone is a juvenile (or below the prescribed
age) is upon the person claiming it. Further, in that
decision, the court indicated the hierarchy of
documents that would be accepted In order of
preference."
19. From perusal of the record, it appears that except from the school
register/exhibit P-23C, there is no other documentary evidence led by
the prosecution to prove her age. In absence of any documentary
evidence regarding her date of birth or age, like any Kotwari register,
birth certificate or even any ossification test report, only on the basis of
oral evidence, it would not be safe to hold the age of the victim that
she was minor on the date of incident, particularly when the oral
evidence is based on the school entries and there is no basis on which
the date of birth of the victim is recorded in the school register. Further,
the said the school register/exhibit P-23C is of class 6 th and there is no
evidence of initial schooling of the victim. Therefore it is very difficult to
hold for this Court that the victim was minor on the date of incident.
20. So far as the offence of kidnapping and rape are concerned, we again
examined the evidence of the victim.
21. PW-2, the victim has stated in her evidence that she knew the
appellant and 2-3 months back, when she was going to school, the
appellant proposed her that he will marry with her. She accompanied
with the appellant and then they had gone to the house of maternal
aunt of the appellant at Bilaspur from where they changed their clothes
and had gone to Delhi by train. They stayed for a day in his friend's
house at Delhi and thereafter they had gone to Allahabad by train.
They stayed there together for 2-3 weeks, where the appellant had
made physical relation with her 4-5 times. Since they feel short of their
funds and their amount were spent, they are returning to their village
and came to Bilaspur Bus Stand, where they have caught by her uncle
and police. When the leading question was asked from her by the
prosecution, she admitted that the appellant came to her tenant house
to meet him and when she was going to school, he proposed her. The
appellant given the small gifts occasionally and she too was having the
talking terms with him. She admitted that on the date of incident she
left her house along with her clothes and Rs. 600/- cash. She had
gone along with the appellant to his maternal aunt's house and
thereafter had gone to railway station Bilaspur. The appellant took her
to Allahabad and they were resided in a rented house. She further
admitted that the appellant took her in Sai Mandir, at Allahabad,
applied vermilion on her head and after garlanding Mangalsutra and
considering that she is his wife, he made physical relation with her.
She further admitted that when her landlord came to know that a
report has been lodged against the appellant, he has got vacated the
rented house and while returning back they have caught at Bilaspur
Bus Stand. In cross-examination, she admitted that while going with
the appellant and residing together with him, she has not made any
complaint to anyone that the appellant kidnapped her. She admitted
that on the way to school, the houses of her known persons are there
are there. She even has not disclosed about the incident to her friend.
She returned back from Allahabad by train. From the evidence of this
witness, it is amply clear that she has not raised any alarm and has
not made any complaint while traveling with the appellant up to Delhi
and Allahabad, even while staying with him at Allahabad, she has not
made any complaint to anyone of the vicinity, where she was residing
in rented house or even she has not informed her landlord.
22. PW-1, father of the victim has stated in his evidence that when his
daughter is missing, he lodged missing report to the police and after
about 10-11 days, when the police has got information, he was being
called by the police at police station and his brother had gone with the
police and subsequently informed that his daughter is recovered from
Bus Stand, Bilaspur. He admitted in his evidence that the appellant
had made physical relation with his daughter, considering that both of
them have married. He further admitted that when the victim came
back to his house, she has not disclosed any incident to him, but she
disclosed the incident to her mother. He further admitted that her
friends have also not disclosed anything about his daughter.
23. PW-3, the mother of the victim has also stated that when the victim
was missing, they have lodged the missing report and after some
days, she was recovered and brought by the police. The victim has not
disclosed anything to her, but in her presence she disclosed the
incident to Mahila Police. She disclosed that the appellant took her to
Allahabad, performed marriage with her and they were resided
together as husband and wife. When the leading question was asked
from her, she admitted that the appellant took her to Delhi, from where
took her to Allahabad, performed marriage at Sai Mandir at Allahabad
by applying vermilion on her head and garlanding Mangalsutra and
thereafter made physical relation with her. When they feel shortage of
their fund, they return back to Bilaspur.
24. PW-5, the uncle of the victim has also stated that when the victim was
missing, they have lodged the missing report. During the search of the
victim, they came to know that she had gone with the appellant and
there is suspicion on him, which was informed to the police. On
05.08.2022, the victim was recovered from the possession of the
appellant from Tifra Bus Stand and recovery Panchnama/exhibit P-9
was prepared. When she returned back, she disclosed about the
incident that the appellant allured her and kidnapped her, took her to
Delhi and Allahabad, applied vermilion on her head and made physical
relation with her. When their fund was finished they returned back to
Bilaspur. In cross examination, he too has stated that he has not seen
the appellant and victim together and they only raised suspicion that
the appellant has kidnapped the victim.
25. PW-18, Dr. Mamata Saluja, who medically examined the victim has not
found any external injuries on her body and found the victim habitual
for sexual intercourse. There is no sign of any protest on her body.
Even from the FSL report/exhibit P-34, no semen and sperm were
found either on the vaginal side of the victim or her underwear.
26. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942,
the Hon'ble Supreme Court has held that:
"9. It must, however, be borne in mind that there is a
distinction between "taking" and allowing a minor to
accompany a person. The two expressions are not
synonymous though we would like to guard
ourselves from laying down that in no conceivable
circumstance can the two be regarded as meaning
the same thing for the purposes of of the Indian
Penal Code. We would limit ourselves to a case like
the present where the minor alleged to have been
taken by the accused person left her father's
protection knowing and having capacity to know the
full import of what she was doing voluntarily joins
the accused person. In such a case we do not think
that the accused can be said to have taken her away
from the keeping of her lawful guardian. Something
more has to be shown in a case of this kind and that
is some kind of inducement held out by the accused
person or an active participation by him in the
formation of the intention of the minor to leave the
house of the guardian.
10. It would, however, be sufficient if the prosecution
establishes that though immediately prior to the
minor leaving the father's protection no active part
was played by the accused, he had at some earlier
stage solicited or persuaded the minor to do so. In
our, opinion if evidence to establish one of those
things is lacking it would not be legitimate to infer
that the accused is guilty of taking the minor out of
the keeping of the lawful guardian merely because
after she has actually left her guardian's house or a
house where her guardian had kept her, joined the
accused and the accused helped her in her design
not to return to her guardian's house by taking her
along with him from place to place. No doubt, the
part played by the accused could be regarded as
facilitating the fulfillment of the intention of the girl.
That part, in our opinion, falls short of an inducement
to the minor to slip out of the keeping of her lawful
guardian and is, therefore, not tantamount to
"taking".
27. The version of the prosecutrix commands great respect and
acceptability, but if there are some circumstances which cast some
doubt in the mind of the court on the veracity of the prosecutrix's
evidence, then it will not be safe to rely on the said version of the
prosecutrix. There is contradiction and omissions in the statement of
the prosecutrix and her parents. The law is well settled that in case of
rape, conviction can be maintained even on the basis of sole
testimony of the prosecutrix. However, there is an important caveat
which is that the testimony of the prosecutrix must inspire confidence.
Even though the testimony of the prosecutrix is not required to be
corroborated, if her statement is not believable, then the accused
cannot be convicted. The prosecution has to bring home the charges
leveled against the appellant beyond any reasonable doubt, which the
prosecution has failed to do in the instant case.
28. The aforesaid evidence available on record are not unerringly pointed
towards guilt of the appellant that he kidnapped the victim and
procured her for illicit intercourse and has committed rape upon her.
When the prosecution failed to prove that she was minor on the date
of incident and when it is found that she herself had gone with the
appellant on her own will, they were having frequent consensual
physical relations, it can safely be held that no offence as alleged has
been proved by the prosecution against the appellant.
29. In the result, the appeal filed by the appellant is allowed. The
impugned judgment of conviction and sentence is hereby set aside.
The appellant is acquitted from the alleged offence. The appellant is
reported to be in jail since 05.08.2022. He be released forthwith if not
required in any other case.
30. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik
Suraksha Sanhita, 2023, the appellant- Sahil Sahu @ Tingu @
Sukalu Sahu is directed to furnish a personal bond for a sum of Rs.
25,000/- with one surety in the like amount before the Court
concerned, which shall be effective for a period of six months along
with 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 thereof, shall appear before the Hon'ble
Supreme Court.
31. Registry is directed to transmit the trial Court record along with a copy
of this order to the Court concerned forthwith for necessary information
and compliance.
Sd- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
ved
