[Cites 16, Cited by 0]
Chattisgarh High Court
Dulare Prakash Vishvakarma vs State Of Chhattisgarh on 11 March, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
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
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)
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
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.
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
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
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.
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
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."
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
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
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.
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
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
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
