High Court of Chhattisgarh
Case Details
1 CRA No.420 of 2025 JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2025.09.25 10:43:34 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:48725-DB NAFR CRA No. 420 of 2025 Chandrahas Nishad S/o Lalji Nishad Aged About 21 Years R/o Dargahna, Post Borsi, Police Station Koregaon, District- Dhamtari, (C.G.) ... Appellant(s) State Of Chhattisgarh Through P.S. Guroor, District- Balod, (C.G.) versus ... Respondent(s) For Appellant : Mr. Rajesh Jain and Ms. Kiran Jain, Advocates. For Respondent(s) : Ms. Malay Jain, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Bibhu Datta Guru, Judge 23.09.2025 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 16.12.2024 passed in Special Session Trial (POCSO) No. 93/2021, by the learned Additional Session Judge, F.T.S.C. (POCSO), Balod District Balod C.G. whereby the appellant has 2 CRA No.420 of 2025 been convicted and sentenced as under:- Conviction Sentence U/s 363 of IPC R.I. for 5 years and fine of Rs. 1,000/- in default of payment of fine amount additional RI for 6 months U/s 366 of IPC R.I. for 7 years and fine of Rs. 1,000/- in default of payment of fine amount further R.I. for 6 months U/s 376(2)(n) of IPC Sentence awarded in Section 6 of POCSO Act. U/s 6 of Protection of Rigorous imprisonment for 20 Children from Sexual Offence years and fine of Rs. 1,000/- in Act, 2012 default of payment of fine amount additional R.I. for 6 months. All the sentences are directed to run concurrently. 2. Case of the prosecution in brief is that on 21.9.2021, the mother of the applicant/victim (PW-2) appeared at Chowki Kanwar, Police Station-Gurur and lodged an oral report to the effect that her daughter/victim, aged 17 years and 11 months and studying in class 12th went away from home on 20.9.2021 between 7 am to 11 am without informing anyone. On the basis of the above information, a missing person case number 66/21 was registered at outpost Kanwar under crime number 0/21 against an unknown
Facts
person and registered a first information report (Exhibit P-8) and sent the unnumbered first information report to police station- Gurur and registered a numbered crime number 323/2021 vide 3 CRA No.420 of 2025 Exhibit P-32. Taking the matter into consideration, on the same date i.e. 21.9.2021, a notice (Exhibit P-11) was given to the mother of the victim to produce documents regarding the age of the victim and on presenting the progress report of the victim for the year 2016-17, it was seized as per the seizure report (Ex.P.- 13) and on the same date, a spot map of the incident (Ex.P.-9) was prepared as per the information given by the mother of the victim. 3. During the course of investigation, the prosecutrix was recovered from the house of the appellant. Thereafter, victim and the Statements of witnesses were recorded, victim got medically examined, appellant was arrested and 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 11 witnesses in its support and exhibited 41 documents and Birth certificate as Article-A and progress report as Article-B(c). 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. 6. The trial Court after appreciating oral and documentary evidence 4 CRA No.420 of 2025 available on record, by its judgment dated 16.12.2024 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 of conviction suffers from serious infirmities in law and facts, inasmuch as the learned trial Court gravely erred in appreciating the evidence on record. It is contended that the prosecution has failed to establish the age of the prosecutrix in accordance with law, as neither the birth certificate was proved by examining the competent authority, nor the basis of entry in the school register was produced, and thus the finding regarding her minority is unsustainable. Counsel further submits that even as per the prosecution’s own case, the prosecutrix was nearly 18 years of age and capable of making her own decisions. It is further argued that the medical examination conducted by P.W.-4 Dr. Lipi Chandrakar did not reveal any internal or external injury, which belies the allegation of forcible sexual intercourse. Moreover, the prosecutrix herself admitted that she had voluntarily left her house and called the appellant, ruling out the offence of abduction. Attention is also drawn to the material contradictions between her statement under Section 164 Cr.P.C. and her deposition before the Court regarding the alleged place of occurrence, which casts serious doubt on the prosecution version. It is submitted that suspicion, however strong, cannot substitute 5 CRA No.420 of 2025 proof, and in the absence of proof beyond reasonable doubt, the appellant is entitled to benefit of doubt and acquittal., and therefore, the conviction and sentence as awarded by the learned Court below are liable to be set aside. 8.
Legal Reasoning
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 11 CRA No.420 of 2025 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 12 CRA No.420 of 2025 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.” 21. Thus on the basis of the settled law and the other documentary evidence in the present case, it is not in dispute that on the date of incident the victim was aged about 17 years 11 months and as such she was very much competent to decide for herself. 22. The next question for consideration would be whether the appellant has tried to outrage the modesty of the victim? 23. Victim, (PW- 1) stated in her examination-in-chief that she lives with her mother, grandmother, and sister. She further stated that they are one brother and one sister. She stated that two years ago, when she passed her 10th grade exam, in 2019, the accused had come to her village to play Band baja in a marriage ceremony. She first met him there. The accused asked for her mobile number, and she gave it to him. She further stated that the accused and she used to communicate on the phone. She stated 13 CRA No.420 of 2025 that the accused proposed to her over the phone a year ago, saying, "I love you and want to marry you." she said yes to the accused. She was 17 years old at the time. She further stated that after proposing, the accused came to her friend's house in her village. She went to her place when the accused invited her and the accused and she did not go anywhere else. She further stated that on September 20, 2021, she traveled to Dhamtari by bus and from there she called the accused and accordingly the accused reached the place and then took her on his bike to Raipur, where she stayed with him for a day. She further stated that they established physical relations and she did not refuse the said act of the accused. Thereafter, the accused took her to his home in Dargahan at night. In the morning, the police from Chowki Kanwar came there and brought both of them to Chowki Kanwar. In cross-examination, the prosecutrix admitted that on 03.03.2020, the accused had visited her village to meet her but denied that he had taken her to Dhamtari or had any sexual relations with her. She clarified that on 20.09.2021, it was she who had called the accused to Dhamtari and not the other way around. She further stated that although the accused had proposed to her in 2019, she initially refused on the ground of being a minor, but later she herself expressed her willingness to marry him. She admitted that she had voluntarily left her house on the date of incident, travelled to Dhamtari, called the accused, and thereafter 14 CRA No.420 of 2025 went with him to Raipur and later to his village Dargahan, where she stayed overnight in the company of the accused’s mother while the accused slept separately, and no sexual intercourse took place there. She also admitted that she was a Class 12th pass student, mature enough to interact freely with classmates of both genders, and that she herself had asked the accused to marry her. She also admitted that she and the accused used to talk daily on the phone and that she had requested him to come and take her for marriage. 24. PW-4, Dr. Lipi Chandrakar, deposed that she was posted as Medical Officer at District Hospital, Balod and on 22.09.2021 at about 06:18 p.m., the prosecutrix was brought before her for genital examination. She stated that on conducting both external and internal examinations, she prepared the medico-legal report (Ex. P-23). On external examination, she found that the secondary sexual characters of the prosecutrix were well developed according to her age, and there was no injury or abrasion on the external parts of her body. On internal examination, she found the hymen torn but no injury or abrasion present on the internal genital organs. She further stated that two vaginal slides were prepared, sealed, and handed over to the said Woman Constable for chemical analysis. In her opinion, without the report of the chemical examination, no definite conclusion could be drawn regarding recent sexual intercourse with the 15 CRA No.420 of 2025 prosecutrix. The FSL report (P-41) is positive and human sperm was found. 25. 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 rape upon her, rather it reflects from the evidence that the victim herself had made consented sexual intercourse with the appellant. It is also clear from the statements of the prosecution witnesses that the physical relation they made was consensual in nature, thus, it cannot be said that the appellant committed the offence. 26. 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.
Arguments
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. We 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 appellants for offence under Section 363 of the IPC ? 11. The appellant has been convicted for offence under Section 363 of the IPC, which is punishable for 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 6 CRA No.420 of 2025 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. The Supreme Court while considering the object of Section 361 of 7 CRA No.420 of 2025 the IPC in the matter of S.Varadarajan v. State of Madras1, took the view that if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so and held that if evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian and held as under:- “It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”. 14. 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 & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra). 1 AIR 1965 SC 942 8 CRA No.420 of 2025 15. Upon a careful consideration of the evidence, particularly the testimony of the prosecutrix, this Court is of the view that the offence under Section 363 IPC is not made out. In cross- examination, she admitted that she had voluntarily left her house, called the accused to meet her, and accompanied him to Dhamtari, Raipur, and Dargahan of her own free will. She further admitted that she herself had asked the accused to marry her. Thus, it is clear that there is no inducement to the victim by the appellant to leave the lawful guardianship of her parents. 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 in light of judgment of the Supreme Court in S.Varadarajan (supra). 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 offence under Section 363 of the IPC. 16. 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 ? 17. Bare perusal of the evidence of the victim girl, it appears that victim girl voluntarily 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 State counsel vehemently contended 9 CRA No.420 of 2025 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. 18. The next question arises before this Court whether the victim was minor on the date of incident or not? 19. The Victim (PW/1) in her deposition has stated that she is studying in Class 12th and her date of birth is 02.10.2003. Mother (PW-2) of the victim has stated that her daughter was studying in 12th class and her date of date of birth is 02.10.2003. Further, the birth certificate (Article-A) of the victim seized in which date of birth is mentioned as 02.10.2003 and progress report of Class-8th [Article- B(c)] in which date of birth is mentioned as 02.10.2003. 20. 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 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. Relevant para of the said judgment states as 10 CRA No.420 of 2025 under:- “16. Even if the finding of the learned Single Judge of the High Court that the prosecutrix was between 16 to
Decision
27. For the foregoing reasons, the prosecution has not proved that the appellant had forcefully taken away the Victim, 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, we are of the view that the appellant 16 CRA No.420 of 2025 is entitled to be acquitted. 28. In the result, the appeal is Allowed. The impugned judgment of conviction and sentence dated 16.12.2024 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail. He be released forthwith if not required in any other case. 29. Keeping in view the provisions of Section 437-A Cr.P.C., the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 30. The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Jyoti