Chattisgarh High Court
Rajkumar vs State Of Chhattisgarh on 12 September, 2025
1
CRA No.510 of 2019
Digitally
signed by
SHOAIB
SHOAIB ANWAR
ANWAR Date:
2025.09.16
16:38:42
2025:CGHC:46871
+0530
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 510 of 2019
Rajkumar S/o Chandrahas Bagh Aged About 20 Years R/o Saldih
Police Station- Sankra, District- Mahasamund, Chhattisgarh., District
: Mahasamund, Chhattisgarh
... Appellant
versus
State Of Chhattisgarh Through The Station House Officer, Police
Station- Sankra, District- Mahasamund, Chhattisgarh., District :
Mahasamund, Chhattisgarh
... Respondent(s)
(Cause title taken from CIS)
For Appellant :Smt. Anjali Pradhan, Advocate.
For Respondent/State :Ms. Isha Jajodia, Panel Lawyer.
Hon'ble Shri Justice Bibhu Datta Guru
Judgment on Board
12/09/2025
1. This criminal appeal preferred under Section 374(2) of the
Cr.P.C is against impugned judgment of conviction and order
of sentence dated 30.10.2017 passed in Special Criminal Case
No. H-13/2017 by the learned Additional Sessions Judge, Fast
Track Court/Special Court (Protection of Children from Sexual
Offences Act), Mahasamund C.G., whereby the appellant has
been convicted and sentenced as under:-
Conviction Sentence
U/s 363 of the IPC Rigorous imprisonment for 04
years and fine of Rs. 500/- with
default stipulation.
U/s 366-A of the IPC Rigorous imprisonment for 04
years and fine of Rs. 500/- with
default stipulation.
U/s 6 of the POCSO Act Rigorous imprisonment for 10
years and fine of Rs. 1,000/-
with default stipulation.
All the sentences were directed to run concurrently.
2. Case of the prosecution in brief is that the prosecutrix
submitted a written complaint at Police Station Sankra stating
that about 3-4 months prior, she had gone to attend a
marriage ceremony at village Golazhar, where she became
acquainted with the accused. Thereafter, she occasionally
used to talk with him over the mobile phone. On 21.12.2016,
the accused came to her house at village Utekel and, under
the pretext of marriage, forcibly took her to his house at
village Saldih. However, the accused did not marry her and
instead committed forcible sexual intercourse with her
repeatedly for several days. The accused also used to assault
her and did not allow her to go outside. Subsequently, she
managed to escape and returned to her parents' house at
village Utekel. On the basis of her complaint, Police Station
Sankra registered Crime No. 27/2017 against the accused for
offences punishable under Sections 363, 366, 376 of the
Indian Penal Code and Sections 4 & 6 of the Protection of
Children from Sexual Offences Act, 2012.
3. During investigation, Spot Map (Ex.P/02) was prepared. With
regard to date of birth of the Victim, Birth and Death reporting
form (Ex.P/10) was seized. Statement of the Victim and the
Statements of witnesses were recorded. Subsequently after
completing the investigation, a charge-sheet was submitted
before the Court.
4. After framing the charges against the accused/appellant, the
charges were read out and explained to the appellant, he
denied committing the crime and demanded trial.
5. In order to bring home the offence, the prosecution has
examined 18 witnesses in its support. Statement of the
accused/appellant under Section 313 Cr.P.C was recorded,
wherein he has pleaded his innocence and false implication in
the matter. No witness has been examined in support of his
defense.
6. The trial Court after appreciating oral and documentary
evidence available on record, by its judgment dated
30.10.2017 convicted and sentenced the appellant as
mentioned in paragraph one of this judgment. Hence, this
appeal.
7. Learned counsel for the appellant submits that the impugned
judgment is perverse, erroneous, and contrary to law and
facts, and therefore liable to be set aside. It is urged that, as
per the prosecution's own case, the prosecutrix was more
than 17 years of age on the date of the incident and, in her
own deposition, admitted that she had voluntarily
accompanied the appellant from her house. The prosecutrix
and the appellant lived together for a considerable period
without objection or resistance, which clearly reflects that she
was a consenting party, and the conviction recorded against
the appellant is unsustainable in law. It is further contended
that the medical report revealed no external or internal
injuries on the prosecutrix and indicated that she was habitual
to sexual intercourse, which demolishes the prosecution's
version of forcible relations. The prosecution has failed to
discharge its duty of proving the guilt of the appellant beyond
reasonable doubt, and the trial Court has erred in convicting
the appellant on the basis of contradictory and unreliable
evidence of prosecution witnesses. The findings recorded by
the learned trial Court are perverse, harsh, and not supported
by material evidence on record. Hence, the conviction
deserves to be quashed and the appellant acquitted of the
charges.
8. Learned counsel appearing for the State opposes the
submissions made by the counsel for the appellant and
submits that the conviction of the appellant is well merited
which does not call for any interference. There is clear
evidence regarding age of the prosecutrix, therefore, this
appeal deserves to be dismissed.
9. I have heard learned counsel for the parties and considered
their rival submissions made herein-above and also went
through the record with utmost circumspection.
10. The first question for consideration would be, whether the
trial Court is justified in convicting the appellant for the
offences under Sections 363 & 366 of the IPC.
11. The appellant has been convicted for offence of kidnapping.
Kidnapping has been defined under Section 359 of the IPC.
According to Section 359 of the IPC, kidnapping is of two
kinds: kidnapping from India and kidnapping from lawful
guardianship. Section 361 of the IPC defines kidnapping from
lawful guardianship which states as under:-
"361. Kidnapping from lawful guardianship.-
Whoever takes or entices any minor under
sixteen years of age if a male, or under eighteen
years of age if a female, or any person of
unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound
mind, without the consent of such guardian, is
said to kidnap such minor or person from lawful
guardianship."
12. The object of Section 359 of the IPC is at least as much to
protect children of tender age from being abducted or
seduced for improper purposes, as for the the protection of
the rights of parents and guardians having the lawful charge
or custody of minors or insane persons. Section 361 has four
ingredients:-
(1) Taking or enticing away a minor or a person of
unsound mind.
(2) Such minor must be under sixteen years of age, if
a male, or under eighteen years or age, if a female.
(3) The taking or enticing must be out of the keeping
of the lawful guardian of such minor or person of
unsound mind.
(4) Such taking or enticing must be without the
consent of such guardian.
So far as kidnapping a minor girl from lawful guardianship is
concerned, the ingredients are : (i) that the girl was under 18
years of age; (ii) such minor was in the keeping of a lawful
guardian, and (iii) the accused took or induced such person to
leave out of such keeping and such taking was done without
the consent of the lawful guardian.
13. Reverting to the facts of the present case in light of
ingredients of offence under Section 361 of the IPC which is
punishable under Section 363 of the IPC, it is evident from the
statement of Prosecutrix (PW-3) on 21.12.2016, at about 4:00
PM, the accused allegedly called the prosecutrix on her mobile
phone and informed her that he was coming to village Utekel.
Later the same night, around 11:00 PM, the accused again
called and asked her to come out of her house to the village
square. Acting upon this, at about 11:30 PM, the prosecutrix
came out of her house and went to the square, where the
accused was waiting. It is stated that the accused then told
her that he would marry her and asked her to accompany
him. The prosecutrix replied that marriage should be with the
permission of her family members, but the accused allegedly
refused and threatened that if she did not go with him, he
would consume poison and die. On account of such
persuasion and threat, the prosecutrix went along with the
accused to village Saldih on his motorcycle and reached his
house.
14. As such, there is no evidence on record that at any point of
time, the appellant solicited or lured or induced or enticed the
victim to go with him. On the other hand, it is clearly
established that the victim herself accompanied the appellant
and there is no inducement to the victim by the appellant to
leave the lawful guardianship. Therefore, in the considered
opinion of this Court, the act/omission of the appellant, if any,
would not tantamount to "taking" within the meaning of
Section 361 of the IPC. Similarly, there is no evidence of
enticing the minor victim by the appellant. As such, the trial
Court is absolutely unjustified in convicting the appellant for
the offences punishable under Sections 363 & 366 of the IPC.
15. The second question arises before this Court whether the
victim was minor on the date of incident or not?.
16. The Victim (PW/3) in her deposition has clearly stated that
stated that her age was 17 years, her date of birth being
21.10.2000. Father of the victim (PW/2) has stated that her
daughter date of birth is 21.10.2000. In cross- examination, he
has denied the suggestion that he had mentioned prosecutrix
date of birth to the kotwar on approximation basis.
17. PW/6 - Kotwar of the village, who produced the Kotwar
Register, as Article A-1C has stated in his statement that
prosecutrix father (PW/2), had come to him for recording her
date of birth, and he had not brought any document in
support of the same. He further stated that he had recorded
prosecutrix date of birth on the basis of the oral information
given by her father.
18. Perusal of the aforesaid statements of the witnesses would
show that though there is entry regarding date of birth of the
victim in the Kotwar Register, but no documentary evidence
has been produced before the Kotwar and the date of birth
has been mentioned as per the oral information given by the
prosecutrix father.
19. The Hon'ble Supreme Court in paragraphs 40,42,43,44 and 48
of its judgment in Alamelu and Another Vs. State, represented
by Inspector of Police, 2011(2) SCC 385, the 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 Purohit1,
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 Jaiswal2, 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."
20. 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. 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 JJ 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
scrutinized 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
hypertechnical 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 JJ 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."
21. 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 JJ 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, i.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: (i) 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)(i) 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."
22. Very recently 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 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 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."
23. Thus, applying the well settled principles of law laid down by
the Hon'ble Supreme Court in the matter of Tilku Alias Tilak
Singh (supra), it is held reliable that the victim was major aged
about between 16-18 years at the time of incident according
to the principles of the Supreme Court. Further it is also stated
in the above judgment that the 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.
24. The next question for consideration would be whether the
appellant has committed rape upon her or not and commit
the said heinous offence punishable under Section 6 of the
POCSO Act.
25. From the statement of the prosecutrix, it is evident that she
had developed acquaintance with the accused about 3-4
months prior to the incident at a marriage function in village
Golazhar, and thereafter both of them remained in regular
contact over mobile phone. The accused frequently conversed
with her and expressed his desire to marry her. It also stands
admitted by the prosecutrix herself that on 21.12.2016, upon
being called by the accused late in the night, she voluntarily
came out of her house at about 11:30 p.m. and met him at the
village square. She further accompanied him on his
motorcycle to village Saldih, despite her own admission that
her family's consent was not obtained. Her further deposition
reveals that she resided with the accused at his house in
village Saldih for about two months, during which period she
maintained physical relations with him on the promise of
marriage. The fact that she continued to reside with the
accused for such a considerable period without raising any
protest or complaint indicates that the relationship was
consensual.
Subsequently, when the accused declined to marry
her and allegedly turned her out of his house, the prosecutrix
raised allegations of coercion. However, her own conduct
staying with the accused for two months, moving with him of
her own volition at midnight, and maintaining relations on
repeated occasions and further she never disclosed about the
incident clearly establishes that she was a consenting party
throughout.
26. Dr. Smt. Chandrakiran (PW/23) who conducted the medical
examination of the victim, deposed that the prosecutrix
herself informed her that for the last three months a young
man had been committing sexual intercourse with her by
force. On clinical examination, the doctor found her to be a
young girl, physically and mentally healthy. Her menstrual
cycle was stated to be regular and the last date of
menstruation was 02.01.2017. The doctor further opined that
the breasts of the prosecutrix were fully developed, and on
genital examination her external genitalia were also fully
developed. There were no signs of recent injury. On internal
examination, the hymenal membrane was found to be torn
and the tear appeared to be old.. It is further stated that the
victim had not suffered any kind of injury or any mark of
struggle that should have been made during commitment of
rape on her private parts or on any part of her body and she is
habitual to sexual intercourse.
27. Perusal of the above statements and particularly looking to
the fact narrated and the evidence adduced by the doctor and
as also there is no mark was found on any part of the body of
the victim. Hence the prosecution would not prove its case
firmly that the victim has been assaulted by aggravated
penetrative sexual assault punishable under Section 6 of the
POCSO Act.
28. Therefore, in the facts and circumstances of the case, as also
the evidence on record, it would not be safe for this Court to
hold that the appellant has committed any offence of rape
with the victim, rather it reflects from the evidence that the
victim herself had made consensual sexual intercourse with
the appellant. Thus, it cannot be said that the appellant
committed the offence.
29. The law is well settled that in case of rape, conviction can be
maintained even on the basis of sole testimony of the victim.
However, there is an important caveat which is that the
testimony of the victim must inspire confidence. Even though
the testimony of the victim 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 reasonable doubt, which
the prosecution has failed to do in the instant case.
30. For the foregoing reasons, the prosecution has not proved
that the appellant had forcefully taken away the Victim and
commit sexual assault with her forcibly and from the evidence
of the victim, the same creates doubt and also the fact that
since, it has also not proved that at the time of incident the
Victim was minor, therefore, I am of the view that the
appellant is entitled to be acquitted.
31. The accused is acquitted of the charges for which he was
tried. The appellant is reported to be on bail. His bail bonds
are not discharged at this stage and the bonds shall remain
operative for a period of six months in view of Section 481 of
the BNSS. Accordingly, the Criminal Appeal is allowed.
32. The trial court record along with a copy of this judgment be
sent back immediately to the trial Court concerned for
compliance and necessary action.
Sd/-
(Bibhu Datta Guru)
Judge
Shoaib
