CGHC010021392017 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 152 of 2017 Suresh Kanwar S/o Mehattar Kanwar, Aged About 23 Years R/o Village Gatapara, Police Station Bakarkatta, District Rajnandgaon, Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through Station House Officer, Police Station Bakarkatta, District Rajnandgaon, Chhattisgarh ... Respondent(s) (Cause title is taken from the CIS) ------------------------------------------------------------------------------------------------------------------ For Appellant : Shri Abhishek Sharma, Advocate For Respondent/State : Shri Rishiraj Pithwa, Dy GA ------------------------------------------------------------------------------------------------------------------ Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 16.09.2026 1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure has been preferred by the appellant–Suresh Kanwar (on bail) assailing the judgment of conviction and order of sentence dated 25.11.2016 passed by the learned Upper Sessions Judge, Khairagarh, District- Rajnandgaon, CG in Special Case- 07 of 2014, whereby the appellant has been convicted and sentenced in the following manner with default stipulation: Conviction Sentence U/s 363 and 366 of the IPC RI for 4-4 years and fine of Rs.1,000- 1,000/- Digitally signed by V PADMAVATHI Date: 2026.09.18 17:23:35 +0530 Cra 152 of 2017 2 U/s 376 of the IPC RI for 10 years and fine of Rs.1,000/- U/s 6 of the POCSO Act, 2012 No separate sentence has been awarded All the sentence are directed to run concurrently 2. By the impugned judgment, the appellant has also been convicted for the offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as ‘POCSO Act’), but no separate sentence has been awarded for the offence under Section 6 of the POCSO Act, as he has already been sentenced under Section 376 of IPC. 3. Brief facts of the prosecution case are that on 27.05.2014, father of the victim, PW6 lodged a report that his minor daughter was being kidnapped by the appellant on 21.05.2014 and kept her away from her lawful guardianship and both of them were seen together by the villagers. On the report lodged by him, FIR Ex.P9 was registered against the appellant for commission of offence under Sections 363, and 366 of the IPC and the Police started investigation. During the investigation, victim PW5 was recovered on 25.06.2014 from the house of the complainant, as she came back to her own house and recovery Panchnama Ex.P10 was prepared in presence of the witnesses. The victim was sent for her medical examination to the Government CHC, Chhuikhadan, where PW7 Dr Leela Ramteke medically examined her and gave her report Ex.P11. While medically examining the victim, the doctor has not noticed any external injuries on her body and opined that the victim is habituated for sexual intercourse. Two slides of her vaginal swab were prepared, sealed and handed over to the police for their FSL examination and the victim has also been Cra 152 of 2017 3 referred for X-ray examination for her age determination. The victim was radiologically examined at the CHC, Chhuikhadan, where PW7 Dr Leela Ramteke gave her opinion that age of the victim is in between 16-18 years, and her ossification report is Ex.P12. With respect to her age and date of birth, Police has seized School Register Ex.P4C, which was seized vide seizure memo Ex.P4. After retaining the attested true copy, original register was returned to the School. The School TC, Article-A and Primary School Progress report card, Article-B have also been seized by the Police. Spot map Ex.P2 was prepared by the Police and Ex.P6 was prepared by the Patwari. Underwear of the victim has been seized vide seizure memo Ex.P5. Appellant was arrested on 26.06.2014. The vaginal slides of the victim, underwear of the victim as well as the appellant have been sent for chemical examination to the State FSL, Raipur, from where its report Ex.P16 was received. Semen and sperm were found on the vaginal slides and underwear of the victim. However, no sperm and semen were found on the underwear of the appellant. 4. Statement of the witnesses under section 161 of CrPC and statement of the victim under section 164 of CrPC have been recorded and after completion of usual investigation, charge-sheet was filed before the learned trial Court against the appellant for the offence under sections 363, 366 and 376 of IPC and sections 3 and 4 of the POCSO Act. 5. After filing of the charge-sheet, the learned trial Court framed charges against the appellant for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code and sections 3 and 4 of the POCSO Act. The appellant abjured his guilt and pleaded false implication, thereby claimed to be tried. Cra 152 of 2017 4 6. In order to bring home the charges, the prosecution has examined as many as 16 witnesses, Statement of the accused/appellant under Section 313 of the Code of Criminal Procedure was also recorded, wherein he denied the incriminating circumstances appearing against him in the prosecution evidence, pleaded innocence and submitted that he has been falsely implicated in the alleged offence. 7. Upon appreciation of the oral and documentary evidence available on record, the learned trial Court has convicted and sentenced the appellant as has been mentioned in the earlier part of the judgment. Hence this appeal. 8. Learned counsel for the appellant would submit that prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses, which cannot be made basis to convict the appellant for the offence in question. There is no legally admissible evidence with respect to age of victim that she is less than 18 years of age at the time of incident. The school register has not been proved in accordance with law and author of the register has not been examined. He would further submit that in the ossification test report Ex.P12. age of the victim has been opined that she is in between 16-18 years of age. The doctor, who conducted the ossification test of the victim has admitted in her evidence that there is possibility of variation of three years on either side. Therefore, considering the variation on higher side discretion in favour of the appellant, victim cannot be said to be less than 18 years of age. Victim is a major girl, having love affair with the appellant had eloped with him on her own will and both of them had gone to Surat, Gujrat and resided there for about a month. In between that period, victim has not made any complaint and raised Cra 152 of 2017 5 any alarm that the appellant kidnapped her and kept her away from her lawful guardianship. Since the victim was a major girl on the date of incident, and she on her own will eloped with the appellant, made consensual physical relation with him, no offence of either kidnapping or rape is made out against the appellant. Yet, the learned trial Court has convicted the appellant, hence, the impugned judgment of conviction and sentence suffers from perversity and illegality, the same is liable to be set aside and the appellant may be acquitted. 9. On the other hand, learned counsel appearing for the State opposes and would submit that but for minor omissions and contradictions the evidence of prosecution witnesses successfully proved the prosecution case beyond reasonable doubt, and it is sufficient to hold the guilt of the appellant for the alleged offence. Though the ossification test report shows that the victim is aged between 16-18 years but the discretion has already been exercised that her age is between 16-18 years. Therefore, further possibility of error of margin on either side not available to the appellant, to fetch again the error of margin in his favour. Victim’s age has been corroborated as has been considered by the doctor in her ossification report, and also as shown in the School Register. Therefore, victim is proved to be minor on the date of incident, who cannot give her consent either for eloping, staying, or for making physical relation with him. Even if the victim has not raised any alarm during her travel up to Surat, and she resided there with the appellant for about a month, that itself is not sufficient to hold that she was a consenting party, as she was found to be minor on the date of incident. Therefore, the learned trial Court has rightly considered the evidence available on record, and rightly convicted and sentenced the appellant which needs no interference. Cra 152 of 2017 6 10. Heard the learned counsel for the parties and perused the record of the trial Court. 11. The first and foremost question arises for consideration would be the age of the victim, as to whether she was minor and less than 18 years of age, or not, on the date of incident. 12. In order to consider the age of the victim, prosecution has examined the Teacher of the school, PW3, who stated in his evidence that he was the Head Master of the School and has brought the original school register with him. In the said register, date of birth of the victim has been recorded as 07.09.1997. The Police seized the Register vide seizure memo Ex.P4 and attested true copy of the same is Ex.P4A. Transfer Certificate (TC), Article-A has been issued by him and his signature is there. In cross-examination, he admitted that date of birth of the victim was recorded in the School register on the basis of TC, issued by the earlier school, which was kept in the School, and he has not brought it with him. Admission of the victim in Class-I in the school could have been explained by the Teacher of Primary School. The School register Ex.P4A is with respect to admission of the victim in Class-VI. However, there is no document produced by the prosecution with respect to initial school record of the victim, as to on what basis victim’s date of birth was brought on record in the initial School record, or the initial school record shows the same date of birth, as has been recorded in the document Ex.4A. Though PW3, the School Teacher is the author of the School register, Ex.P4A, but it is of Class-VI, and there is no record of her initial schooling. Cra 152 of 2017 7 13. The admissibility and evidentiary value of the school record has been considered by the Hon'ble Supreme Court in the cases of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602 and P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846. 14. In case of P. Yuvaprakash (supra), Hon’ble Supreme Court has held in para 14 to 16 as under : “14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in Cra 152 of 2017 8 respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: “20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by Cra 152 of 2017 9 considering the age on lower side within the margin of one year.” 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.” 15. Another piece of evidence relied upon by the prosecution is ossification test report Ex.P12, in which the doctor has opined that victim is aged in Cra 152 of 2017 10 between 16-18 years. PW7 has clearly admitted in her cross-examination that there is possibility of margin of error of three years on either side. Thus, considering the evidence of the doctor with respect to ossification report and other evidences available on record with respect to age of the victim, this court finds that prosecution could not establish the fact that the victim was minor on the date of the incident and less than 18 years of age. Yet the learned trial court has held the victim minor. 16. So far as the offence of kidnapping and rape are concerned, I again examine the evidence of victim, PW5, who stated in her evidence that she knew the appellant and he is also resident of her own village-Gaatapar. At the time when she had gone to collect Tendu leaves in the forest, appellant also accompanied her, from the way he took the victim towards Chhuikhadan by saying that he will marry her, from where they went to Rajnandgaon in a bus. Thereafter, they have gone to Surat by train. He made physical relation repeatedly with her. She accompanied him for the reason that he assured her that he will marry her. On her repeated requests, appellant took her back to her parents’ house. When she returned to her house, her parents called the parents of the appellant and thereafter, appellant had gone to the Police Station. She informed about the incident to her parents and also informed that the appellant has not married with her. The appellant has also made physical relation with the victim near talab of the village. In her cross-examination, she admitted that she used to go to the jungle to collect Tendu leaves and the appellant took her to Chhuikhadan by walking. From there, they had gone to Surat via Rajnandgaon by train. She admitted that while traveling with the appellant, she has not made any complaint or Cra 152 of 2017 11 raised any alarm. Even in the train, or bus, she has not made any complaint to any co-passenger that she has been forcefully taken by the appellant. Even she has not protested him, though there are number of persons present on the platform and in the train also there are number of passengers, yet she has not made any complaint to anyone. She traveled 22 hours in the train, while going to Surat. In Surat she also worked at a different place, and the appellant worked at a different place. Other laborers were also residing at the place, where she was residing but she has not informed to any of them about the incident. 17. From the evidence of the victim, it clearly reveals that while traveling from Chhuikhadan to Surat via Rajnandgaon, the victim has not made any complaint, rather, she voluntarily accompanied the appellant and resided with him at Surat, and made physical relationship with him. During the entire period, she has not raised any protest against the act of the appellant, which clearly shows her consensual act in eloping with the appellant and making physical relationship with him. 18. PW4, mother of the victim stated in her evidence that her daughter was being taken by the appellant and she was found after about a month. In her examination-in chief, she disclosed that she did not know as to about the incident. PW6 is father of the victim. He stated in his evidence that when he could not find his daughter in his house, he enquired from the villagers, who informed him that the victim and the appellant were seen together. Thereafter, he lodged report to the Police. After about a month, appellant left his daughter at his elder daughter’s house at village-Nachaniya, who informed him about her. When he met with his daughter, she informed him about the incident. In Cra 152 of 2017 12 his cross-examination, his evidence is relevant only to the extent that when he could not find his daughter in his house, he lodged the report and when his daughter came back from Surat, other proceedings were drawn by the Police during investigation, and his daughter informed him about the incident. When the victim is being found consenting party in eloping with the appellant and making physical relation with him, the evidence of her father has no much significance. 19. PW7, Dr Leela Ramteke, who medically examined the victim has not found any external, or internal injury on her body and gave her report Ex.P11. There is no sign of any protest or struggle on the body of the victim, which also corroborates her consensual act with the appellant. 20. So far as the alleged elopement and kidnapping of the victim are concerned, in view of the evidence available on record, it is necessary to consider the judgment of the Hon’ble Supreme Court in S. Varadarajan v. State of Madras, AIR 1965 SC 942, wherein it has been held as under: "9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have Cra 152 of 2017 13 taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. 10. 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. In our, opinion 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. That part, in our opinion, 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". 21. From the conduct of the victim and in view of the aforesaid judgment of S. Vardarajan (supra), it cannot be said that the appellant has kidnapped the victim and procured the minor girl, as the victim is not found to be minor and no offence of either kidnapping or procuring a minor girl is made out against the appellant. Cra 152 of 2017 14 22. Recently, the Hon’ble Supreme Court in the matter of Tilku @ Tilak Singh v. State of Uttarakhand, Criminal Appeal No. 183 of 2014, decided on 06.02.2025, has considered the aforesaid judgment of S. Varadarajan (supra) and hold that when the victim herself voluntarily gone along with the appellant, traveled to various places and also resided with him without raising any objection, no offence of kidnapping is made out. 23. When the victim has not stated anything specific against the appellant while going to Surat along with the appellant, when the victim did not alleged anything specific that the appellant has forcibly taken her to Surat, where he made physical relation against her will, or consent, it cannot be said that the appellant has kidnapped her and committed rape upon her, particularly when the victim was found to be major and has voluntarily eloped with him and resided with the appellant for about a month. During that period, without making any complaint, and without any protest, she engaged in making physical relation with him, amounts to her consensual physical relation with the appellant. 24. The version of the victim commands great respect and acceptability, however, if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omission in the statement of the victim and her parents. 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, 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 Cra 152 of 2017 15 accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case and the appellant is entitled for benefit of doubt. 25. Considering the overall evidence available on record, and the facts and circumstances of the case, this Court is of the considered opinion that the prosecution failed to prove its case beyond reasonable doubt and the appellant is entitled for benefit of doubt. 26. Accordingly, the appeal filed by the appellant is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. Appellant is acquitted from all the alleged offences. 27. Appellant is reported to be on bail. His bail bonds shall continue for a further period of six months as provided under Section 481 of the BNSS 2023. 28. The record of the trial Court be sent back along with copy of this judgment. Sd/- (Ravindra Kumar Agrawal) JUDGE padma