High Court of Chhattisgarh
Case Details
1 CRA No.2196 of 2023 RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.07.24 18:22:46 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:35355-DB NAFR CRA No. 2196 of 2023 Anil Kumar Sahni S/o. Rajesh Sahni Aged About 28 Years R/o. Village Chainpatti, Police Station - Tariyasujan, District - Kushinagar (Up) versus Appellant State Of Chhattisgarh Through Police Station - Gariyaband, District - Gariyaband, Chhattisgarh. (Cause-title taken from Case Information System) Respondent(s) For Appellant : Mr. Hemant Gupta, Advocate For Respondent(s) : Mr. Malay Jain, PL Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per, Bibhu Datta Guru, Judge 23/07/2025 Heard. 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 31/10/2023 passed in POCSO Case No. 7/2023 by the learned Additional Sessions Judge, FTC, Special Judge (POCSO), Gariyaband (C.G.), whereby the appellant has been convicted under Section 363, 2 CRA No.2196 of 2023 366 and 376 (2) (ढ़) of the Indian Penal Code (for short ‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’), however, he has been sentenced as under:- Conviction Sentence U/s 363 of the IPC U/s 366 of the IPC U/s 6 of the POCSO R.I. for 02 years with fine of Rs. 1000/-, with default stipulation. R.I. for 05 years with fine of Rs. 2000/-, with default stipulation. R.I. for 20 years with fine of Rs. 5000/-, with default stipulation. All the sentences were directed to run concurrently. 2. Case of the prosecution in brief is that on 02/01/2023 father (PW3) of the Victim lodged a missing report alleging therein that the Victim had left towards the village pond, but she did not return till evening and subsequently, she was searched nearby vicinity, but was not found traceable. On the above report, initially, crime was registered against
Facts
the unknown person under Section 363 of the IPC and a First Information Report was registered. During investigation, progress report of Class-VIII and birth certificate of the Victim were seized. Spot map was prepared. During course of investigation, the Victim was recovered from Dongrigaon. Her statement was recorded and further offences were added against the appellant. The prosecutrix was medically examined and vaginal secretion were prepared. The appellant was also medically examined. On 10/01/2023, statement of the Victim under Section 164 of the 3 CRA No.2196 of 2023 Cr.P.C was recorded. After completion of investigation, a charge-sheet was filed before the concerned Court and after framing the charges, the same was read over to the appellant, which he denied and claimed to be tried. In order to bring home the offence, the prosecution has examined 15 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 3. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 31/10/2023 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 4.
Legal Reasoning
“51. This Court in Rameshwar v. State of Rajasthan {AIR 1952 SC 54} declared that corroboration is not the sine qua 10 CRA No.2196 of 2023 non for a conviction in a rape case. In the aforesaid case, Vivian Bose, J. speaking for the Court observed as follows:- 52. "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, ... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand." 53. The aforesaid proposition of law has been reiterated by this Court in numerous judgments subsequently. These observations leave no manner of doubt that a conviction can be recorded on the sole, uncorroborated testimony of a victim provided it does not suffer from any basic infirmities or improbabilities which render it unworthy of credence. 54. xxx xxx xxx 54. Even PW5, Thiru Thirunavukarasu stated that Sekar (A1) had brought the girl with him to his house and told him that he had married her. They had come to see Trichy and requested a house to stay. This witness categorically stated that he thought that they were newly married couple. He had made them stay in Door No. 86 of the Police Colony, which was under his responsibility. On 10th August, 1993, the police inspector, who arrived there at 10.00 p.m. told this witness that Sekar (A1) had married the girl by threatening her and "spoiled her". The girl, according to the prosecution, 11 CRA No.2196 of 2023 was recovered from the aforesaid premises. Therefore, for six days, this girl was staying with Sekar (A1). She did not raise any protest. She did not even complain to this witness or any other residents in the locality. Her behavior of not complaining to anybody at any of the stages after being allegedly abducted would be wholly unnatural. 55. Earlier also, she had many opportunities to complain or to run away, but she made no such effort. It is noteworthy that she made no protest on seeing some known persons near the car, after her alleged abduction. She did not make any complaint at the residence of Selvi, sister of Sekar (A1) at Pudupatti. Again, there was no complaint on seeing her relatives allegedly assembled at the temple. Her relatives apparently took no steps at the time when mangalsutra was forcibly tied around her neck by Sekar (A1). No one sent for police help even though a car was available. She made no complaint when she was taken to the house of PW5, Thiru Thirunavukarasu and stayed at his place. Again, there was no protest when Sekar (A1) took her to the police station on 5th day of the alleged abduction and told at the Tiruchi Police Station that they had already been married. The above behaviour would not be natural for a girl who had been compelled to marry and subjected to illicit sexual intercourse. 56. In view of the aforesaid, we are of the considered opinion that the prosecution has failed to prove beyond reasonable doubt any of the offences with which the appellants had been charged. It appears that the entire prosecution story has been concocted for reasons best known to the prosecution.” 18. 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 12 CRA No.2196 of 2023 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 13 CRA No.2196 of 2023 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…….” 14 CRA No.2196 of 2023 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 Victim (PW1) has deposed that the appellant along with other persons were staying in their house while they are doing the construction work of water tank and at that time she used to talk with the accused. Once, the appellant had called her in her own house and she had gone to meet him, where the appellant tried to forcefully made physical relationship. This witness has admitted that the appellant had made physical relationship with her for 4-5 times. According to this witness the accused called the Victim and asked her to come to Rajim by bus, thereafter, she without informing anything in her house, she proceeded, where the appellant met her and took her on motor cycle to Chichodha on the pretext of marriage, where they stayed in a rented house and during their stay, they developed corporeal relation. Subsequently, he gave Rs. 500/- and asked her to go to her home. Thereafter, the Victim returned to Gariyaband and from where she went to her brother-in-law’s house at Dogrigaon. When her sister and brother-in-law inquired, she stated that she came for preparation of card and except that nothing has been stated to them. 20. The scrutiny of entire evidence goes to show that there is no evidence 15 CRA No.2196 of 2023 on record that at any point of time the appellant solicited or persuaded the victim to leave her home. On the other hand, it is clearly established that the victim herself went to Rajim by bus and accompanied the appellant and thereafter, she and the accused stayed in a village Chichodha, District Mahasamund for a period of three days and thereafter she went to her sister’s house. 21. Applying the principle of law laid down by the Supreme Court to the facts of the present case and considering the opinion of Medical Officer (PW6); her report Ex.P-13; and FSL report (Ex.P/36), which provides that no human sperm was found over Article- A i.e. Vaginal slides, Article-B i.e. Swab, Article-C i.e. Pantie and Article-D i.e. underwear of the accused and coupled with the testimony of the victim herself creates a serious lacuna in the prosecution story, the benefit of which should be granted to the appellant. On the basis of material available on record and evidence collected by the prosecution, it cannot be held that the prosecution has been able to bring home the charges against the appellant beyond reasonable doubt. 22. As a fallout and consequence of the aforesaid legal analysis, the criminal appeal is allowed and the impugned judgment dated 31/10/2023 is hereby set aside. The accused / appellant is acquitted of the said charges levelled against him. He is in jail. He shall be set at liberty forthwith if no longer required in any other criminal case. 23. Keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, 1973 (Now Section 481 of the Bhartiya Nagarik 16 CRA No.2196 of 2023 Suraksha Sanhita, 2023), the appellant is directed forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Proceure of sum of Rs.25,000/- with two reliable sureties 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. 24. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) Judge (Ramesh Sinha) Chief Justice Rahul/Gowri
Arguments
Mr. Hemant Gupta, learned counsel for the appellant would submit that the learned trial Court has failed to consider the testimonies of witness (PW-1/victim) who had not supported the case of prosecution. There are material contradictions in the statement of the witnesses. According to the learned counsel along with some other persons, the appellant was staying in the house of the Victim. He would submit that the Victim and the appellant used to talk with each other and further she accompanied the appellant to various places and had established corporeal relation with him. He would submit that the allegations 4 CRA No.2196 of 2023 levelled against the appellant is not corroborated by the FSL report as no human sperm was found. 5. On the other hand, Mr. Malay Jain, learned Panel Lawyer appearing for the respondent/State would support the impugned judgment and submits that the prosecution has proved its case beyond reasonable doubt that the victim was minor on the date of commission of offence and the trial Court has rightly convicted and sentenced the appellant, as such, the criminal appeal deserves to be dismissed. 6. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 7. The first question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 363 of the IPC ? 8. 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 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 5 CRA No.2196 of 2023 lawful guardianship.” 9. 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. 10. The Supreme Court while considering the object of Section 361 of 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 1 AIR 1965 SC 942 6 CRA No.2196 of 2023 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”. 11. 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), it is evident that on 02/01/2023, the accused called the Victim and asked her to come to Rajim by bus, thereafter, she without informing anything in her house, she proceeded, where the appellant met her and took her on 7 CRA No.2196 of 2023 motor cycle to Chichodha on the pretext of marriage, where they stayed in a rented house and during their stay, they developed corporeal relation. Subsequently, he gave Rs. 500/- and asked her to go to her home. Thereafter, the Victim returned to Gariyaband and from where she went to her brother-in-law’s house at Dogrigaon. When her sister and brother-in-law inquired, she stated that she came for preparation of card and nothing has been stated that she stayed in the company of accused for three days. During further course of her statement, she was declared hostile partially. 12. As such, there is no evidence on record that at any point of time the appellant solicited and forced the victim to go with him. On the other hand, it is clearly established that the victim herself accompanied the appellant and thereafter, she and the accused stayed at Chichodha and there is no inducement to the victim by the appellant to leave the lawful guardianship. Therefore, in the considered opinion of this Court, the act/omission of the appellant, if any, would not tantamount to “taking” within the meaning of Section 361 of the IPC 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. 13. 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 ? 8 CRA No.2196 of 2023 14. Bare perusal of the evidence of the victim girl, 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 State counsel 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. 15. So far as the age of victim is concerned, the documentary evidence including oral evidence regarding the date of birth of the victim (PW- 1) being 08/08/2007, birth certificate (Article-02) is on record in an irrefutable manner, which there is no reason to disbelieve. 16. In the matter of Jaya Mala v. Home Secretary, Govt. of Jammu & Kashmir and others2, the Supreme Court has held that a judicial notice can be taken that the margin of error in age ascertained by Radiological examination is two years on either side. Relevant para of the said judgment states as under:- 2 AIR 1982 SC 1297 9 CRA No.2196 of 2023 “9. Detenu was arrested and detained on Oct. 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention. Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert, in Oct., 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheavel in the educational institutions. This young school going boy may be enthusiastic about the students’ rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed.” 17. In Alamelu & Another (supra), where the facts and circumstances were similar to that of this case, the Supreme Court observed as under: