[Cites 34, Cited by 0]
Chattisgarh High Court
Ramesh Vishwakarma vs State Of Chhattisgarh on 12 March, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:11833-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1387 of 2024
Ramesh Vishwakarma S/o Vinod Vishwakarma Aged About 25 Years R/o
Village Bara, Post Bara, P.S. Rajnagar, District : Chhatarpur, Madhya
Pradesh
... Appellant(s)
versus
State of Chhattisgarh Through P.S. Gurur, District Balod, Chhattisgarh
...Respondent(s)
(Cause-title taken from Case Information System)
For Appellant : Ms. Khusbhoo Naresh Dua, Advocate.
For Respondent/State : Mr. Shailendra Sharma, Panel Lawyer.
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
12.03.2026
1. Heard Ms. Khusbhoo Naresh Dua, learned counsel for the appellant.
Also heard Mr. Shailendra Sharma, learned Panel Lawyer, appearing for
the State/respondent.
Digitally
signed by
BRIJMOHAN
2. Today, though the criminal appeal has been listed for hearing on I.A.
BRIJMOHAN MORLE
MORLE Date:
2026.03.13
18:56:59
+0530
No. 3 of 2024, application for suspension of sentence and grant of bail to
the appellant, however, with the consent of learned counsel for the parties,
the appeal is heard finally.
3. Accordingly, I.A. No. 3 of 2024, application for suspension of
sentence and grant of bail to the appellant, stands disposed off.
4. This criminal appeal is preferred under Section 415 (2) of the
Bharatiya Nagrik Suraksha Sanhita, 2023 (for short, 'BNSS') is directed
against the impugned judgment dated 29.04.2024 passed by the learned
District Judge (FTSC) and Special Judge (POCSO Act), District Balod
(C.G.) (for short, 'learned trial Court') in Special Sessions Case No. 74 of
2022, by which the appellant has been convicted and sentenced as under:
Conviction Sentence
Section 363 of the the Indian Rigorous imprisonment (for short,
Penal Code (for short, 'IPC') 'R.I.') for 03 years and fine of Rs.100/-,
in default of payment of fine, 01 year
R.I. more.
Section 366 of the IPC R.I. for 05 years and fine of Rs.2000/-,
in default of payment of fine, 01 year
R.I. more.
Section 6 of the Protection of R.I. for 20 years and fine of Rs.2000/-,
Children from Sexual Offences in default of payment of fine, 01 year
Act, 2012 (for short, 'POCSO R.I. more.
Act')
All the sentences shall run concurrently.
5. Learned State counsel submits that the notice issued to the father of
the victim (PW-2) has been duly served; however, none has appeared on
behalf of the victim to contest the present appeal.
6. The prosecution case, in brief, is that the complainant/father of the
victim (PW-2) appeared at Police Station Gurur on 20.05.2022 and orally
submitted an application, on the basis of which a report was registered. He
stated that he works as a labourer. The date of birth of his daughter/victim
(PW-1) is 21.08.2006, and she was 15 years, 08 months, and 29 days old
at the relevant time. On 19.05.2022, sometime between 09:00 a.m. and
5:00 p.m., she left the house without informing anyone and has not
returned home since. He searched for her in the surrounding areas and
among relatives, but no information about her whereabouts could be
found. He further described his daughter as having a fair complexion,
round face, height of about 5 feet, normal build, and long black hair. She
was wearing a white salwar suit, a nose pin, earrings, and slippers. She
had studied up to Class 10 and speaks Chhattisgarhi.
7. Based on the above oral report of the victim's father, Missing Person
Report No. 33 of 2022 was registered at Police Station Gurur, and a
search for the missing girl was initiated. Subsequently, Crime No.269 of
2022 was registered under Section 363 of the IPC, and the First
Information Report (FIR) Ex. P/10 was recorded, and investigation
commenced. During the course of investigation, the abducted victim was
recovered from the custody of the accused/appellant, Ramesh
Vishwakarma, at Police Station Rajnagar, District Chhatarpur (M.P.). Upon
interrogation of the rescued victim, it was revealed that the
accused/appellant, knowing that she was a minor belonging to a
Scheduled Tribe (Halba caste), had enticed and taken her away by luring
her with the promise of marriage and keeping her as his wife. It was further
found that the accused/appellant had forcibly established physical
relations with the victim repeatedly from 20.05.2022 to 14.07.2022.
Consequently, additional sections were invoked in the case, namely
Sections 366, 376(2)(d), and 376(3) of the IPC, Sections 4, 5(ठ), and 6 of
the POCSO Act, and Section 3(2)(a) of the SC/ST (Prevention of
Atrocities) Act.
8. After completion of the entire investigation, and upon finding that the
accused/appellant had committed the above offences, Police Station Gurur
submitted the charge-sheet against the accused/appellant before the
learned trial Court on 10.08.2022 for trial under the aforementioned
sections.
9. In this case, the previous Presiding Officer framed charges against
the accused/appellant under Sections 363, 366, and 376(2)(k) of the IPC,
Section 5(8)/6 of the POCSO Act, and Section 3(2)(V) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. When
the charges were read over and explained to the accused/appellant, he
denied the allegations and prayed for trial.
10. Statements of the witnesses under Section 161 of the Cr.P.C. were
recorded by the police during the investigation.
11. During the trial, the prosecution examined eight witnesses as PW-1
to PW-8 and exhibited 37 documents as Exs.P/1 to P/37, as well as two
articles marked as A(C) and B(C). In order to prove the defence, the
appellant did not examine any witness or exhibit any document.
12. After appreciation of the oral as well as documentary evidence
produced by the prosecution, the learned trial Court convicted the
appellant and sentenced him as mentioned in the fourth paragraph of this
judgment. Hence, the present appeal.
13. Learned counsel for the appellant submits that the impugned
judgment of conviction and sentence is bad both in law and on facts and,
therefore, deserves to be set aside, as the learned trial Court has failed to
appreciate the evidence available on record in its proper perspective. It is
contended that the learned trial Court has erred in placing reliance upon
the testimonies of prosecution witnesses who are admittedly interested
witnesses, being close family members of the victim, and whose
statements suffer from material contradictions and inconsistencies.
Despite such infirmities, the learned trial Court failed to scrutinize their
evidence with the caution required under law. She further submits that the
determination of the victim's age has not been conducted in accordance
with the settled legal principles, and no reliable documentary evidence was
duly proved to conclusively establish the age of the victim. Consequently,
the finding recorded by the learned trial Court regarding the age of the
victim is perverse and unsustainable in law. It is further contended that the
victim and the appellant were admittedly in a consensual love relationship
and had solemnized marriage at Khajuraho (M.P.), after which they lived
together as husband and wife peacefully from 20.05.2022 to 14.07.2022.
She would further submit that during the entire alleged period, the victim
suffered no injuries, nor did she lodge any complaint with anyone despite
travelling with the appellant in public transport over a considerable
distance. Such conduct, clearly indicates that the victim had voluntarily
accompanied the appellant and was never "enticed" or taken away against
her will.
14. Learned counsel for the appellant further submits that the MLC
report (Ex.P/34A) clearly indicates that the victim had neither internal nor
external injuries, thereby suggesting absence of any violence. It is also
submitted that the FSL report (Ex.P/32) does not support the prosecution
case regarding the alleged sexual assault. These important aspects of the
evidence have not been properly considered by the learned trial Court,
resulting in serious prejudice to the appellant and leading to a grave
miscarriage of justice.
15. It is further contended by the learned counsel for the appellant that
the prosecution evidence, as a whole, does not inspire confidence and is
insufficient to establish the guilt of the appellant beyond reasonable doubt.
The learned trial Court has failed to properly appreciate the defence
submissions as well as the contradictions in the statements of prosecution
witnesses, particularly with respect to the age and consent of the victim. It
is also urged that the findings recorded in the impugned judgment are
erroneous, contrary to law, and based on surmises and conjectures. The
evidence relied upon by the learned trial Court is not of such a nature from
which a definite inference of guilt could safely be drawn against the
appellant.
16. On an overall appreciation of the material available on record, it is
submitted that the prosecution has failed to prove the charges framed
against the appellant beyond reasonable doubt. Therefore, the conviction
recorded by the learned trial Court is unsustainable in law and the
appellant deserves to be acquitted of all the charges levelled against him.
In support of her submissions, learned counsel for the appellant has
placed reliance upon the judgments of Ashik Ramjaii Ansari vs. State of
Maharashtra & Another, reported in 2023 SCC OnLine Bom 1390 and
Moneshwar Alias Rinku Katlam vs. State of Chhattisgarh, reported in
2026 SCC OnLine Chh 1946. It is submitted that in Ashik Ramjaii Ansari
(supra), the Court observed that when the conduct of the victim indicates
that she voluntarily accompanied the accused and there is absence of
injuries or other corroborative evidence indicating force, the prosecution
case must be scrutinized with great caution. Similarly, in Moneshwar
Alias Rinku Katlam (supra), the Court held that where the evidence on
record reflects a consensual relationship and the prosecution fails to
establish the essential ingredients of the offence beyond reasonable
doubt, the benefit of doubt must go to the accused. Relying on the
principles laid down in the aforesaid decisions, it is argued that the
appellant is entitled to the benefit of doubt and consequent acquittal.
17. On the other hand, learned State counsel opposes the arguments
advanced by the learned counsel for the appellant and submits that the
impugned judgment of conviction and sentence has been passed after due
appreciation of the oral as well as documentary evidence available on
record and does not suffer from any illegality or perversity warranting
interference by this Court. It is submitted that the prosecution has
successfully proved the age of the victim through cogent and reliable
documentary evidence, particularly the Birth Certificate (Article A(C)),
wherein the date of birth of the victim is recorded as 21.08.2006, which
clearly establishes that the victim was a minor on the date of the incident.
The learned trial Court has rightly relied upon the said document while
recording the finding regarding the age of the victim. It is further submitted
that the testimony of the victim is trustworthy, cogent, and inspires
confidence, and the same stands duly corroborated by other prosecution
witnesses. The mere relationship of the witnesses with the victim does not
render their evidence unreliable, particularly when their statements remain
consistent on material particulars. It is further contended that consent is
immaterial in cases involving a minor, and the alleged love affair or
marriage, even if accepted, does not dilute the statutory offence under the
IPC and the POCSO Act. The learned trial Court has rightly rejected the
defence version and has correctly appreciated the legal position governing
the case. Lastly, it is argued that the prosecution has proved the charges
against the appellant beyond reasonable doubt, and no ground is made
out for interference with the impugned judgment. Accordingly, it is prayed
that the present appeal deserves to be dismissed.
18. We have heard learned counsel for the parties and perused the
record of the trial Court with utmost circumspection.
19. The first and foremost question arose for the consideration would be
whether the victim was minor and less than 18 years of age on the date of
incident or not ?
20. In order to determine the age of the victim, this Court has carefully
examined the evidence available on record. The prosecution has relied
upon the FIR (Ex.P/10), the missing person report, the statements of the
father of the victim and the victim herself, the birth certificate (Article A-C),
as well as the testimony of the Investigating Officer. All these documents
and oral testimonies consistently record the date of birth of the victim as
21.08.2006, thereby forming a coherent and consistent chain of evidence
regarding her age.
21. The father of the victim (PW-2), in his judicial testimony, has
categorically stated that the date of birth of his daughter is 21.08.2006 and
that she was born in their village. He further deposed that the police had
issued a notice to him for the production of documents relating to the caste
of the victim, which is Ex.P/12. He stated that he had provided the birth
certificate of the victim, issued by the Government of Chhattisgarh
(Planning, Economic and Statistics Department), Directorate of Economics
and Statistics, to the police for the purpose of establishing the age of the
victim. The said document was seized by the police and a seizure memo
(Ex.P/13) was prepared, bearing his signatures. He further stated that he
had subsequently produced the original birth certificate before the learned
trial Court, which, upon comparison with the certified copy already placed
on record, was found to be correct. Accordingly, the original birth certificate
was marked as Article A, while its certified copy was marked as Article A-C.
He also deposed that the police retained the verified copy of the birth
certificate in the case record and returned the original to him on
Supurdnama (Ex.P/14). He further stated that he has two children, the
victim being the younger child, and an elder son. His testimony remained
unshaken during cross-examination, and no material contradiction could
be elicited so as to discredit his version.
22. The victim (PW-1) herself, in her examination-in-chief before the
learned trial Court, has clearly stated that her date of birth is 21.08.2006
and that she has one elder brother. Her testimony regarding her age has
remained consistent, and nothing material has been elicited during her
cross-examination to cast any doubt upon the correctness of her stated
date of birth.
23. Upon a cumulative appreciation of the oral as well as documentary
evidence available on record, it becomes evident that the date of birth of
the victim as 21.08.2006 stands duly proved. The evidence adduced by
the prosecution in this regard is consistent, reliable, and legally admissible,
and there is no material on record to discredit the same. Accordingly, this
Court is of the considered view that on the date of the incident the victim
was a minor and below 18 years of age.
24. Very recently, the Hon'ble Supreme Court in the matter of Birka
Shiva v. State of Telangana, reported in 2025 SCC OnLine SC 1454 has
observed as under:
"8. The evidentiary value of such an entry made in public or
official registers may be admissible in evidence under
Section 35 of the Indian Evidence Act, 1872. However,
admissibility is distinct from probative value. While such
documents may be admitted into evidence, their evidentiary
weight depends on proof of their authenticity and the
source of the underlying information. Mere production and
marking of a document as exhibited by the Court does not
amount to proof of its contents. Its execution has to be
proved by leading substantive evidence, that is, by the
'evidence of those persons who can vouchsafe for
Hereinafter referred to as the 'Evidence Act' the truth of the
facts in issue'. [See: Narbada Devi Gupta v. Birendra
Kumar Jaiswal] We may refer to a few judicial
pronouncements of this Court in this regard:
8.1. This Court, in Birad Mal Singhvi v. Anand Purohit,
held that the entries contained in the school register
are relevant and admissible but have no probative
value unless the person who made the entry or
provided the date of birth is examined. It was
observed:
"14. ... If entry regarding date of birth in the
scholar's register is made on the information given
by parents or someone having special knowledge
of the fact, the same would have probative value.
... 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. The entry contained in the
admission form or the scholar's register must be
shown to be made on the basis of information
given by the parents or a person having special
knowledge about the date of birth of the person
concerned. If the entry in the scholar's register
regarding date of birth is made on the basis of
information given by parents, the entry would have
evidentiary value, but if it is given by a stranger or
by someone else who had no special means of
knowledge of the date of birth, such an entry will
have no evidentiary value. ...
15. Section 35 of the Indian Evidence Act lays
down that entry in any public, official book,
register, record stating a fact in issue or relevant
fact and made by a public servant in the discharge
of his official duty specially enjoined by the law of
the country is itself the relevant fact. To render a
document admissible under Section 35, three
conditions must be satisfied, firstly, entry that is
relied on must be one in a public or other official
book, register or record; secondly, it must be an
entry stating a fact in issue or relevant fact; and
thirdly, it must be made by a public servant in
discharge of his official duty, or any other person
in performance of a duty specially enjoined by law.
An entry relating to the date of birth made in the
school register is relevant and admissible under
Section 35 of the Act, but the entry regarding the
age of a person in a school register is of not much
evidentiary value to prove the age of the person in
the absence of the material on which the age was
recorded. ... The courts have consistently held
that the date of birth mentioned in the scholar's
register or secondary school certificate has no
probative value unless either the parents are
examined or the person on whose information the
entry may have been made is examined..."
(Emphasis Supplied)
This decision has been consistently followed by
this Court in Pratap Singh v. State of Jharkhand;
Babloo Pasi v. State of Jharkhand; Murugan v.
State of T.N.; State of M.P. v. Munna; C.
Doddanarayana Reddy v. C. Jayarama Reddy;
and Manak Chand v. State of Haryana.
8.2. A coordinate Bench of this Court in State of
Chhattisgarh v. Lekhram, through S.B. Sinha, J.,
clarified that though entries in school registers are
admissible under Section 35 of the Evidence Act, their
evidentiary value improves only when corroborated by
oral testimony of persons who are aware of its content,
such as parents or the person who made the entry at
the time of admission. It held as under:
"12. A register maintained in a school is
admissible in evidence to prove date of birth of
the person concerned in terms of Section 35 of
the Evidence Act. Such dates of births are
recorded in the school register by the authorities
in discharge of their public duty. PW 5, who was
an Assistant Teacher in the said school in the
year 1977, categorically stated that the mother of
the prosecutrix disclosed her date of birth. The
father of the prosecutrix also deposed to the said
effect.
13. ...The materials on record as regards the age
of the prosecutrix were, therefore, required to be
considered in the aforementioned backdrop. It
may be true that an entry in the school register is
not conclusive, but it has evidentiary value. Such
evidentiary value of a school register is
corroborated by oral evidence as the same was
recorded on the basis of the statement of the
mother of the prosecutrix."
8.3. Similarly, this Court in Satpal Singh v. State of
Haryana, stated that though a document may be
admissible, but to determine whether the entry
contained therein has any probative value, may still be
required to be examined in the facts and
circumstances of a particular case. It held as follows:
"26. In Vishnu v. State of Maharashtra [(2006) 1
SCC 283 : (2006) 1 SCC (Cri) 217] while dealing
with a similar issue, this Court observed that very
often parents furnish incorrect date of birth to the
school authorities to make up the age in order to
secure admission for their children. For
determining the age of the child, the best
evidence is of his/her parents, if it is supported by
unimpeccable documents. In case the date of
birth depicted in the school register/certificate
stands belied by the unimpeccable evidence of
reliable persons and contemporaneous
documents like the date of birth register of the
municipal corporation, government
hospital/nursing home, etc., the entry in the
school register is to be discarded.
xxx
28. Thus, the law on the issue can be
summarised that the entry made in the official
record by an official or person authorised in
performance of an official duty is admissible
under Section 35 of the Evidence Act but the
party may still ask the court/authority to examine
its probative value. The authenticity of the entry
would depend as to on whose
instruction/information such entry stood recorded
and what was his source of information. Thus,
entry in school register/certificate requires to be
proved in accordance with law. Standard of proof
for the same remains as in any other civil and
criminal case."
8.4. In Madan Mohan Singh v. Rajni Kant, this Court
held that the entries made in the official record may be
admissible under Section 35 of the Evidence Act, but
the Court has a right to examine their probative value.
The authenticity of the entries would depend on whose
information such entries stood recorded. It was held as
follows :
"20. So far as the entries made in the official
record by an official or person authorised in
performance of official duties are concerned,
they may be admissible under Section 35 of the
Evidence Act but the Court has a right to
examine their probative value. The authenticity
of the entries would depend on whose
information such entries stood recorded and
what was his source of information. The entries
in school register/school leaving certificate
require to be proved in accordance with law and
the standard of proof required in such cases
remained the same as in any other civil or
criminal cases.
21. ... For determining the age of a person, the
best evidence is of his/her parents, if it is
supported by unimpeachable documents. In
case the date of birth depicted in the school
register/certificate stands belied by the
unimpeachable evidence of reliable persons
and contemporaneous documents like the date
of birth register of the Municipal Corporation,
government hospital/nursing home, etc., the
entry in the school register is to be discarded.
..."
8.5. This Court, in Alamelu v. State, while dealing with
a similar factual matrix, held that the prosecution had
failed to prove that the girl was a minor at the relevant
date since the transfer certificate of a Government
School showing age was not duly proved by witnesses.
It observed as under:
"40. Undoubtedly, the transfer certificate, Ext.
P-16 indicates that the girl's date of birth was
15-6-1977. 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. 31-7-
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 Evidence Act, 1872. 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.
41. We may notice here that PW 1 was
examined in the Court on 9-8-1999. In his
evidence, he made no reference to the transfer
certificate (Ext. P-16). He did not mention the
girl's age or date of birth. PW 2 was also
examined on 9-8-1999. She had also made no
reference either to her age or to the transfer
certificate. It appears from the record that a
petition was filed by the complainant under
Section 311 CrPC seeking permission to
produce the transfer certificate and to recall
PW 2. This petition was allowed. ... In her
cross- examination, she had merely stated that
she had signed on the transfer certificate, Ext.
P-16 issued by the school and accordingly her
date of birth was noticed as 15-6- 1977. She
also stated that the certificate has been signed
by the father as well as the Headmaster. But
the Headmaster has not been examined.
Therefore, in our opinion, there was no reliable
evidence to vouchsafe for the truth of the facts
stated in the transfer certificate."
(Emphasis supplied)
9. In the attending facts, we find that the evidentiary
value of Ex.P11 is significantly undermined in the
absence of corroborating material. We say so for the
following reasons:
(i) PW-13, who is the Headmaster of Zilla Parishad
High School, Chandanapur, Peddapalli District
(erstwhile Karimnagar District), stated that the victim
studied in his school from 2007 to 2013, i.e., 6th Class
to 10th Class and that the Admission Register records
her date of birth as 3rd November 1996. However, in
his cross-examination, he admitted that he had no
personal knowledge as to the source or basis on which
the date of birth was recorded therein or if the recorded
date of birth was correct or not. The relevant part of his
testimony is extracted hereunder:
"...In our school there is not clerk to maintain records. I
did not produce any certificate pertaining to earlier
school I, In which P.W.3 studies up to 5th Class. There
must be basis for entering date of birth of a student in
our school such as her earlier school record. I do not
have personal knowledge as to what record was
produced by parents of P.W. 3 as basis to enter her
date of birth in our school as I was not Head Master in
2007.
I cannot say in which school P.W.3 studied up to 5th
Class. In the nominal roll register of our school, the
signature of P.W.3 was obtained. I do not have
personal knowledge whether the said date of birth of
P.W.3 was correct or not and I am giving evidence only
on the basis of record."
(Emphasis Supplied)
(ii) The prosecution has failed to examine the person
who had made the entry in the Admission Register to
ascertain on what basis such an entry was made. More
so, the entry in respect of the date of birth of the victim
in the primary school register, i.e., 1st Class to 5th
Class, has not been produced and proved before the
Courts below to verify the age as per its records. It is
also not possible to ascertain from the records as to
whether the date of birth was provided by the parents
or simply entered at the behest of another party,
without verification, at the time of admission to Zilla
Parishad High School.
(iii) The testimonies of PW-1, PW-2 and PW-3 are also
telling that none of them mentioned the victim's age
with specificity. There is no reference to Ex.P11, and
no attempt was made by the prosecution to adduce
corroborative testimony regarding the victim's date of
birth from her family members.
Thus, while examining the issue at hand, on the anvil
of the principles elucidated above, it is essential to
notice that the prosecution has failed to toe the line of
legal requisites. There is nothing on record to
corroborate the date of birth of the victim as recorded
in the birth certificate (Ex.P11) issued by the school.
Therefore, it cannot be relied upon to definitely
determine the age of the victim and held with certainty
that the victim was below sixteen/eighteen years of
age.
11. Furthermore, none of the victim's family members,
i.e., her mother and brothers have said anything about
the age of the victim in their depositions made in the
Court. Even the victim is effectively silent on this
aspect, only stating that she and her siblings were born
approximately two years apart and thereby making an
estimation of their ages as well as her own.
Throughout her deposition, the victim has remained
silent with regard to her particular date of birth.
12. Well, suffice it to say that Courts of law cannot make a
determination of guilt in thin air, based on estimations. In
the present facts and circumstances, the proof submitted
by the prosecution in the form of Ex.P11 (birth certificate
issued by the school) was not sufficient to arrive at a
finding that the prosecutrix was less than sixteen/eighteen
years of age, especially when such a document was not
sufficiently corroborated. Therefore, it was neither safe nor
fair to convict the appellant based on it, particularly in the
context where the age of the victim was such a pivotal
factor."
25. Reverting to the facts of the present case in the light of the aforesaid
legal position, it is evident that both the father of the victim and the victim
herself have categorically and consistently stated that the date of birth of
the victim is 21.08.2006. Their testimonies are duly corroborated by the
contemporaneous documentary evidence available on record, particularly
the birth certificate (Article A-C) issued by the competent authority of the
Government of Chhattisgarh, which has been duly proved during the
course of trial. The said document was produced by the father of the
victim, seized by the police under seizure memo (Ex.P/13), and
subsequently the original was produced before the learned trial Court and
marked as Article A, while its certified copy was marked as Article A-C.
The Investigating Officer has also supported and proved the said
document during his deposition.
26. In the present case, the date of birth of the victim is consistently
reflected in the oral as well as documentary evidence on record, including
the FIR (Ex.P/10), the testimony of the victim (PW-1), the testimony of her
father (PW-2), and the birth certificate (Article A-C). There is no material
contradiction, inconsistency, or circumstance brought on record by the
defence to cast any doubt upon the authenticity or correctness of the said
evidence. Thus, the evidence adduced by the prosecution with respect to
the age of the victim is consistent, cogent, and reliable, forming a complete
and credible chain of proof. Accordingly, this Court is satisfied that the
prosecution has successfully established that the victim was below 18
years of age on the date of the incident, and therefore the finding recorded
by the learned trial Court holding the victim to be a minor is well-founded,
legally sustainable, and calls for no interference.
27. The next question for consideration would be whether the appellant
has committed rape upon her or not ?
28. Very recently, in the matter of Tilku Alias Tilak Singh v. The State
Of Uttarakhand, reported in 2025 INSC 226, the Supreme Court while
dealing with the case of S. Varadarajan Vs. State of Madras, reported in
AIR 1965 SC 942, has held 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 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 enticing
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."
29. Upon an exhaustive re-appreciation of the entire evidence on record,
this Court finds that the prosecution case, far from establishing forcible
abduction or sexual assault, itself discloses that the relationship between
the victim and the appellant was one of mutual affection and voluntary
companionship.
30. The victim (PW-1), in her deposition before the learned trial Court,
stated that she resides with her parents and elder brother and that she is
younger than her brother. She was studying in Class XI and stated that her
date of birth is 21.08.2006. Her father is engaged in agriculture, while her
mother works as a sweeper in the village school. She further stated that
her caste is Halba, which falls under the category of Scheduled Tribe.
According to her testimony, about one and a half years prior to the
incident, she received a phone call from an unknown number. Upon
enquiry, the caller introduced himself as Ramesh Vishwakarma, a resident
of village Bara, Madhya Pradesh. Thereafter, they started communicating
regularly over the phone. During their conversations, the appellant
expressed his love for her and proposed marriage, to which she
responded positively after a few days.
31. She further deposed that on 19.05.2022, the appellant came to
Gurur to meet her and, at his request, she went to the Gurur bus stand,
where they met and conversed for about two to three hours. Thereafter,
the appellant took her by bus to Raipur, from where they travelled by train
to Jhansi and thereafter proceeded to Chhatarpur. She stated that the
appellant initially took her to the house of his elder sister at village
Kheerwa, where she stayed with him for about four to five days.
Thereafter, she was taken to his parental house at village Bara, Madhya
Pradesh, where she remained for about two weeks. Subsequently, the
appellant took her to Haryana, where they stayed together for about four to
five days. The victim further stated that during their stay at the house of the
appellant's elder sister, the appellant first established physical relations
with her despite her refusal. According to her, she was about 15 years old
at that time and the appellant was aware of her age. She also deposed
that thereafter both of them were brought by the police to Police Station
Gurur, where her statement was recorded. She admitted her signatures on
several documents including the recovery memo (Ex.P/1), the
Supurdnama (Ex.P/2) through which she was handed over to her parents,
the consent for medical examination (Ex.P/3), the seizure memo relating to
the underwear worn at the time of the incident (Ex.P/6), the spot map and
Panchanama prepared by the Patwari (Exs.P/7 and P/8) and her
statement recorded before the Judicial Magistrate First Class, Gundardehi
(Ex.P/9).
32. In her cross-examination, the victim admitted that she had been
regularly talking to the appellant over the phone and that at times she
herself used to call him. She further admitted that she had gone to the
Gurur bus stand on her own volition to meet the appellant and thereafter
travelled with him from Gurur to Raipur, then to Jhansi and thereafter to
Chhatarpur without raising any complaint before any person or authority.
She also admitted that she stayed with the appellant from 20.05.2022 to
14.07.2022, during which period they lived together and physical relations
were established several times. She further stated that the appellant had
told his relatives that she was 21 years old and that he had applied
vermilion in the parting of her hair at the Khajuraho temple, Madhya
Pradesh, which she considered to be a form of marriage.
33. It further emerges from her testimony that despite the alleged act of
marriage at the Khajuraho temple, she did not disclose the said fact to her
parents or any member of her family. She also admitted that she continued
to accompany the appellant and resided with him at different places during
the aforesaid period. These admissions are relevant while evaluating the
overall conduct of the victim as reflected from her own testimony.
34. The evidence on record further indicates that the victim travelled
with the appellant across several places including Gurur, Raipur, Jhansi
and Chhatarpur and later stayed with him in Haryana. During the course of
this travel and stay, she admittedly did not raise any alarm or complaint
before any person or authority. The record also does not indicate any
allegation of force, threat or coercion at the time of undertaking the
journey.
35. The conduct of the victim during the period she remained with the
appellant also assumes relevance. She admitted that she stayed with him
for a considerable period and moved with him from one place to another.
There is no specific allegation that she was confined or prevented from
contacting others during this period. These circumstances require careful
appreciation while assessing the allegations of kidnapping or abduction.
36. The allegations relating to sexual intercourse also require scrutiny in
the light of the entire evidence on record. While the victim stated that the
appellant established physical relations with her despite her refusal, she
also admitted that they stayed together for a considerable period and
physical relations occurred several times during that period. These aspects
of her testimony require cautious evaluation.
37. The medical evidence on record also does not reveal the presence
of any external or internal injuries suggestive of forcible sexual intercourse.
The medical examination does not record any signs of struggle or
violence. Though certain samples were collected, the evidentiary value of
such material must be appreciated in conjunction with the overall evidence
available on record.
38. It is well settled that a conviction for sexual offences can be based
on the sole testimony of the victim if the same is found to be wholly reliable
and of sterling quality. At the same time, where the evidence on record
gives rise to reasonable doubt, the Court must evaluate the testimony with
due caution.
39. In the present case, the victim admittedly accompanied the appellant
and travelled with him to different places and stayed with him for a
considerable period. She also admitted that she did not disclose the
alleged incidents to any person during the said period. The learned trial
Court, while recording conviction, appears not to have fully examined the
effect of these admissions made by the victim during her cross-
examination.
40. It is a settled principle of criminal jurisprudence that the prosecution
is required to prove its case beyond reasonable doubt, and the accused is
entitled to the benefit of any reasonable doubt arising from the evidence
on record.
41. Having considered the entire evidence on record, including the
testimony of the victim and the surrounding circumstances, this Court is of
the opinion that certain aspects of the prosecution case create reasonable
doubt with regard to the essential ingredients of the offences alleged
against the appellant under Sections 363 and 366 of the IPC as well as the
provisions of the POCSO Act.
42. Consequently, the appeal is allowed. The impugned judgment of
conviction and order of sentence dated 29.04.2024 passed by the learned
trial Court are hereby set aside, and the appellant is acquitted of all the
charges levelled against him. The appellant has been in custody since
15.07.2022 and shall be released forthwith, if not required in any other
case.
43. Keeping in view the provisions of Section 437-A of the Cr.P.C. (now
Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023), the
appellant is directed to furnish a personal bond of Rs. 25,000/- with one
surety in the like amount before the Court concerned. The said bond shall
remain effective for a period of six months, along with an undertaking that
in the event of filing of a Special Leave Petition against this judgment, the
appellant shall appear before the Hon'ble Supreme Court of India upon
receipt of notice.
44. The trial Court record, along with a copy of this judgment, be
transmitted forthwith to the concerned trial Court for information,
compliance and necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Brijmohan
