State of Chhattisgarh, Through Police Station Kasdol, District Balodabazar v. Tiranga

: Mr. Vinod Tekam, Government Advocate : Mr. Anil Singh Rajput, Advocate Division Bench Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Narendra Kumar Vyas Judgment on Board

16.07.2026 Per Sanjay S. Agrawal, J.

1. This appeal is directed against the judgment dated 29.11.2017, passed in Special Criminal Case (POCSO Act) No.21/2015, whereby, the learned Special Judge(Fast Track Court), Balodabazar (CG), has 2 acquitted the respondents with regard to the offence punishable under Sections 363/34, 366/34, 376(2)(n) and 120-B(1)/34 of IPC, read with Section 6 of the Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as ‘the Act, 2012’).

2. From perusal of the record, it appears that the respondents have been charge-sheeted with regard to the offence mentioned herein-above on the allegation that in the intervening night of 7th and 8th February, 2015, the prosecutrix was in her maternal house and was sleeping along with her sister, at about 12 O’clock in the night, when she went to Varandah in order to answer the call of nature, where she was taken away by the respondents forcefully, while threatening to commit rape upon her and in view of the alleged threat, she went along with them. It is alleged further that she was firstly taken to Lavan Bus Stand and then to Railway Station at Raipur and, from where, the respondent No.1- Tiranga, took her to Betul via Nagpur and, based upon suspicion, they were interrogated by the concerned police authorities of Betul, who, then informed their parents and after that, she returned her parental house on 11.02.2015. It is alleged further by her that during this period, she was exploited sexually by respondent No.1- Tiranga. Based upon the alleged allegations, an FIR (Ex.P-9) was registered on 11.02.2015, in connection with Crime No.78/2015 against the respondents for the offence punishable under Section 363 read with Section 34 of IPC.

3. It appears further that during the investigation, her statement (Ex.P-13) was recorded under Section 164 Cr.P.C. on 24.02.2015 and was thereafter, examined medically by Dr. (Smt.) Pratibha Sharma (PW-1) on 28.02.2015 and, during the further investigation, the vaginal slide 3 and undergarments of the prosecutrix were seized vide Ex.P-4 and Ex.P-11, respectively, while the undergarment of the respondent No.1- Tiranga vide seizure memo (Ex.P-22) stained with semen and, the articles, so recovered were sent for chemical examination, vide memo dated 10.12.2015 (Ex.P-26) and, according to the F.S.L. report, no semen was found on those articles and, after the completion of usual investigation, the charge-sheet was submitted against the respondents for the offence punishable under Sections 363, 366, 376, 120-B read with Section 34 and also under Sections 3 and 4 of the Act, 2012 and, based upon the materials, the charges were framed against them for the offence punishable under Sections 363/34, 366/34, 376(2)(n) and 120-B(1)/34 of IPC, read with Section 6 of the Act. 2012 and, the charges, so framed, were denied by them and claimed to be tried.

4. The trial Court, after considering the evidence led by the prosecution arrived at a conclusion that no offence as such was, in fact, committed upon her, nor was found to be minor at the relevant point of time and, who went along with the respondent No.1- Tiranga voluntarily and, in consequence, the respondents have been acquitted from the commission of the alleged crime and, being aggrieved, the instant appeal has been preferred.

5. Learned counsel appearing for the appellant/State submits that the finding recorded by the trial Court acquitting the respondents for the commission of the alleged crime is, apparently contrary to the materials available on record, inasmuch, as the evidence led by the prosecution has not been scanned in its proper manner and thereby, erred in acquitting them as such. 4

6. On the other hand, learned counsel appearing for the respondents has supported the impugned of acquittal as passed by the trial Court.

7. We have heard learned counsel appearing for the parties and perused the entire record.

8. The respondents have been charge-sheeted with regard to the offence punishable under Sections 363/34, 366/34, 376(2)(n), 120-B(1)/34 of IPC, read with Section 6 of the Act, 2012 on the allegation that in the intervening night of 7th and 8th February, 2015, when she went to Varandah in order to answer the call of nature, she was forcefully taken by the respondents and, the respondent No.1- Tiranga has committed sexual intercourse with her.

9. In order to establish the alleged allegations, the prosecutrix was examined as PW-9 and, it reveals from her testimony that on the said fateful day at about 12.00 pm in the night, she was taken away by the respondents when she came out to her Varandah for answering the call of nature, who have threatened to kill and, took her to village Lavan and in between Lavan and village Karda, she was raped by the respondent No.1- Tiranga and the other respondents have caught hold of her hands and legs and thereafter, they took her to Raipur, from where they went to Nagpur and was not aware where she was then taken by them. Her statement is, thus, found to be deviated from her allegation as was levelled by her in her report (Ex.P-9), as it was stated by her that on the said fateful day, she was threatened by them to commit rape, if she refused to go along with them, but the said fact has, however, not reflected from her testimony. It is to be seen further that, though, it was stated by her that she was sexually abused by the respondent No.1- 5 Tiranga, but her statement is, however, not found to be corroborated by her statement (Ex.D-3) recorded under Section 161 Cr.P.C. as it was stated therein very specifically that she was not exploited physically and the alleged version of her is found to be supported by the Investigating Officer (PW-11), who recorded her said statement. That apart, her version is even not found to be corroborated by the medical report (Ex.P-2) conducted by Dr. (Smt.) Pratibha Sharma (PW-1), who upon her examination on 28.02.2015, did not find any kind of injuries on her body, nor has seen any kind of symptoms that she was exploited physically.

10. Pertinently, to be noted here further that the alleged articles as recovered from the prosecutrix, vide Ex.P-4 and Ex.P-11 and, the articles seized from the respondent No.1- Tiranga, vide Ex.P-22, were sent for chemical examination, but, no semen was, however, found on those articles. In view thereof, it cannot be said that she was physically exploited as alleged by her in her report (Ex.P-9) and, the trial Court has not erred in holding as such.

11. It is now to be seen as to whether she was abducted forcefully by the respondents on the said fateful day or not ?

12. According to the report (Ex.P-9) lodged by her on 11.02.2015 and the statement of her (PW-9), though it was alleged that on the said fateful day and time, she was taken away forcefully by the respondents while threatening to kill, but, her alleged version, as observed herein-above is deviated from her report (Ex.P-9), as it was alleged therein that she was threatened by them to commit rape, if she refused to go along with 6 them and have not threatened her to be killed. There is, thus, material variance in her testimony and, that apart, it rather reveals from para 19 of her testimony that she went along with the respondent No.1- Tiranga on her own wish and has visited several places for the period commencing with from the intervening night of 7th and 8th February, 2015 up to 11th February, 2015 and, during such a long period, no any objection to this effect was ever raised by her and was handed over to her parents only at the intervention of the police authorities of Betul. It, thus, appears that she went along with them on her own wish and, it cannot be said, that she was taken away by them forcefully on the said fateful day, as alleged by her.

13. Now, the focal point is to ascertain whether she was minor on the said fateful day and was unable to give her consent ?

14. In order to establish the minority of the prosecutrix, the prosecution has seized a photocopy of her Aadhaar Card, vide Ex.P-5 from her maternal grand-mother (PW-7) on 11.02.2015. Although, it was alleged to have been seized as such, but from her (PW-7) testimony, it appears that except the School Certificates, nothing was seized from her. Therefore, the alleged recovery of the photocopy of the Aadhaar Card from her appears to be doubtful. Even otherwise, though her date of birth is shown to be “24.08.1999” therein, but instead of proving the same, it was, however, not compared with its original document while calling the same. Therefore, based upon such a document, it cannot be said that her date of birth is 24.08.1999 as shown therein. Besides, according to her statement, her date of birth was recorded in the School as

04.11.1997 and, it was stated suo motu that since she was not being 7 admitted into the School, therefore, her admission was made while increasing her age. There are, thus, two dates which have been shown by the prosecution regarding her date of birth.

15. It reveals further from her testimony that she was not aware as to whether her birth entry is made in Kotwari Register or not and, has stated specifically at para 25, that her mother has possessed the Birth Certificate of her, but, despite of that, the same has not been placed on record, so as to hold that what is her actual date of birth.

16. In any case, no reliance could be placed upon the photocopy of the Aadhaar Card, as there is no evidentiary value of it to arrive at a conclusion that her date of birth is “24.08.1999”, or was she below the age of 18 years at the relevant point of time. In absence of any cogent and reliable evidence led by the prosecution, it cannot be said that she was minor below the age of 18 years at the time of occurrence of the incident and, was unable to give her consent.

17. Consequently, we are of the considered view that the trial Court has not committed any illegality in acquitting the respondents from the commission of the alleged crime, so as to call for any interference in this appeal. The appeal, being devoid of merit is, accordingly, dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Narendra Kumar Vyas) Judge Judge sunita 8