1 CRA No. 634 of 2011 & ACQA No. 130 of 2011 2025:CGHC:48278 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 634 of 2011 [Arising out of judgment dated 30.07.2011 passed in Sessions Trial No.21/09 by the Additional Sessions Judge, Bemetara , District Durg, Chhattisgarh .]  Dinesh Verma S/o Kundan Verma, aged about 22 years, R/o Village Ghotwani, P.S. Saja, District Durg, Chhattisgarh. --- Appellant versus  State of Chhattisgarh, through the Station House Officer, P.S. Saja, District Durg, Chhattisgarh. --- Respondent For Appellant :- Mr. C.R. Sahu, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For Respondent-State :- Mr. Rahul Tamaskar, Government Advocate and Mr. H.A.P.S. Bhatia Panel Lawyer. ACQA No. 130 of 2011  XYZ as per Hon'ble Court Order Dated 19-09-2025 ---Appellant Versus 1. State of Chhattigarh through Police Station - Saja, Tahsil - Saja, District - Durg Chhattisgarh. 2. Dinesh Verma S/o Kunden Verma, aged about 22 years; ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.09.24 14:56:00 +0530 2 CRA No. 634 of 2011 & ACQA No. 130 of 2011 3. Pappu @ Dogendra S/o Ramkhilawan, aged about 23 years Both R/o Village - Ghotwani, Police Station & Tahsil - Saja, District - Durg Chhattisgarh. --- Respondents For Appellant :- Mr. Vaibhav A. Governdhan, and Mr. Arpan Vearma, Advocates. For State/Respondent No.1 :- Mr. Rahul Tamaskar, Government Advocate and Mr. H.A.P.S. Bhatia Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Rakesh Mohan Pandey Judgment On Board (19.09.2025) Sanjay K. Agrawal, J 1. Since these two appeals have arisen out of the common impugned judgment dated 30.07.2011 passed in Sessions Trial No. 21/09 by the Additional Sessions Judge, Bemetara, District Durg, Chhattisgarh, they have been heard together and are being decided by this common judgment. 2. By the impugned judgment 30.07.2011 passed by the Additional Sessions Judge, Bemetara, District Durg, Chhattisgarh, appellant Dinesh Verma has been convicted for offence under Section 363 of the IPC and sentenced thereunder to suffer rigorous imprisonment for two years with fine of ₹500/-; in default of payment of fine the appellant has to undergo additional rigorous imprisonment for one month, while acquitting him from offences 3 CRA No. 634 of 2011 & ACQA No. 130 of 2011 under Sections 366 & 376 of the IPC and also acquitted co- accused Pappu @ Dogendra from offence under Section 363(A) of the IPC leading to filing of appeal CRA No.634 of 2011 calling in question the legality, validity and correctness of the aforesaid judgment. Victim has also filed the appeal questioning the impugned judgment dated 30.07.2011 passed by the Additional Sessions Judge, Bemetara, District Durg, Chhattisgarh. Prosecution case:- 3. The case of the prosecution, in short, is that on 15.01.2009, at night, between 10 pm to 12 pm, at village Ghotwani, Police Station Saja, District Durg, Chhattisgarh, appellant Dinesh Verma and co- accused Papu kidnapped the minor victim (PW-1) from her lawful custody of her her father (PW-2) and took her to different places and Dinesh Verma had also committed sexual intercourse with her (PW-1). For the said offence FIR was registered vide Ex.P/5. Victim was recovered pursuant to seizure memo vide Ex.P/3. Spot map was prepared vide Ex.P/25. Victim was medically examined by Dr. Jyoti Dhruw (PW-21) and in the medical report (Ex.P/30) victim was found habitual in sexual intercourse, however, no injuries were found over the body of the victim and also no sign of recent sexual intercourse was found. As per the X- ray report (Ex.P/24) proved by Radiologist Dr. Badrinayaran 4 CRA No. 634 of 2011 & ACQA No. 130 of 2011 Dewangan (Ex.P/18), the age of the victim at the time of incident was between 16 to 17 years. As per birth certificate (Article A), seized vide Ex.P/7, date of birth of the victim is 02.03.1991, meaning thereby, at the time of incident i.e. between 15.01.2009, the age of the victim was more than 17 years 10 months. However, as per the transfer certificate of the victim (Article B), her date of birth is 06.06.1991. Undergarments of the appellant and the victim and other articles were seized. Seized articles were sent for chemical analysis to FSL, but FSL report has not been brought on record for the reasons best known to the prosecution. 4. After due investigation, appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The trial Court while acquitting the appellant from offence under Sections 366 and 376 of the IPC convicted him for offence under Section 363 of the IPC and also acquitted co-accused Pappu @ Dogendra from offence under Section 363(A) of the IPC. The appellant / accused person abjured their guilt and entered into defence. 5. In order to bring home the offence, prosecution has examined as many as 23 witnesses; two articles and exhibited 32 documents, whereas, defence, in support of its case, has not examined any witness, but exhibited 4 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC 5 CRA No. 634 of 2011 & ACQA No. 130 of 2011 in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused persons for the offence as mentioned in the opening paragraph of the judgment, against which the instant appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 7. Mr. C.R. Sahu, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified on convicting appellant Dinesh Verma for offence in question, as according to Dr. Badrinarayan Dewangan (PW-18), the age of the victim at the time of incident was 16 to 17 years and the margin of error in age ascertained by radiological examination is two years on either side, therefore, the appellant is entitled for acquittal of charges under Section 363 of the IPC on the basis of benefit of doubt. He would also submit that the trial Court has rightly acquitted the appellant from the offences under Sections 376 and 366 of the IPC. Thus, the appeal deserves to be allowed. 6 CRA No. 634 of 2011 & ACQA No. 130 of 2011 8. Mr. Rahul Tamaskar and H.A.P.S. Bhatia, learned State counsels and Mr. Vaibhav A. Goverdhan and Mr. Arpan Verma, learned counsels for the victim, would oppose the prayer made learned counsels for appellant Dinesh Verma and submit that the trial Court has erred in acquitting accused persons namely Dinesh Verma and Pappu @ Dogendra from offences under Sections 366 & 376 of the IPC and Section 363(A) of the IPC, respectively. 9. We have heard learned counsel for the parties, considered their rival submission made herein above and gone through the records precisely. Discussion & Analysis :- 10. Age of the victim:- Admittedly, the trial Court acquitted both accused persons namely Dinesh Verma and Pappu @ Dogendra from offence under Section 376 of the IPC holding the victim to be a consenting party and proceeded to acquitted appellant Dinesh Verma for offence under Section 363 of the IPC. However, in order to consider the cases of both the parties i.e. criminal appeal as well as the acquittal appeal, it would be appropriate to consider the age of the victim on the date and time of the incident which the trial Court in paragraph 32 of its judgment has discussed and held that on the basis of the birth certificate (Article A), the age of the victim at the time of incident was more than 16 years and less than 18 years and further held 7 CRA No. 634 of 2011 & ACQA No. 130 of 2011 that the victim was the consenting party as she visited at several places along with accused Dinesh Verma and concludingly, convicted appellant Dinesh Verma for offence under Section 363 of the IPC while acquitting him from the offences under Sections 376 and 366 of the IPC and also acquitted Pappu @ Dogendra from offence under Section 363(A) of the IPC. 11.As per Article A issued by Station House Officer, the date of birth of the victim is 02.03.1991 and as per transfer certificate i.e. Article B, the date of birth of the victim is 06.06.1991. However, author of both the documents have not been examined, therefore, it could not be established that the date of birth of the victim is either 02.03.1991 or 06.06.1991 and the same is of no use to the prosecution. In that case, we are required to consider the ossification test to determine the age of the victim. In the instant case, since the certificate of matriculation examination from the concerned Board is not available and the birth certificate as well as the transfer certificate given by the Station House Officer and School, respectively, are available however, the same is of no use to the prosecution as held above, we will refer the ossification test conducted by Dr. Badrinarayan Dewangan (PW-18) to determine the age of the victim at the time of incident. As per the ossification report/x-ray report (Ex.P/24) proved by doctor (PW- 18) the age of the victim at the time of incident was between 16 to 8 CRA No. 634 of 2011 & ACQA No. 130 of 2011 17 year which can be two years more or less. In this regard, the decision of the Supreme Court in the matter of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and others 1 , may be noticed here, in which, their Lordships have held that margin of error in age ascertained by radiological examination is two years on either side, therefore, in the instant case, the age of the victim could be between 18 to 19 years. As such, on that basis of radiologist report (Ex.P/24), the age of victim was more than 18 years on the date of offence. 12.Furthermore, the victim visited along with the accused Bemetara to Kawardha by bus, Kawardha to Jabalpur and Jabalpur to Lucknow, where she stayed along with the accused for a period of 3 months. As such, though the trial Court has erred in holding the victim to be minor on the date and time of the incident, but the trial Court is justified in holding that the victim was the consenting party and, therefore, Dinesh Verma and Pappu @ Dogendra have rightly been acquitted of the charges under Sections 376, 366, and 363(A) of the IPC. 13.Appellant Dinesh Verma, has been convicted for offence under Section 363 of the IPC on the basis that he had kidnapped the minor victim. However, in the foregoing paragraph we have already held that on the date of incident, the age of the victim was 1 AIR 1982 SC 1297 9 CRA No. 634 of 2011 & ACQA No. 130 of 2011 more than 18 years. Kidnapping from lawful guardianship is an offence under Section 361 of the IPC for which punishment is provided under Section 363 of the IPC. Section 361 of the IPC states that whoever takes or entices any minor under sixteen years if a male, or under eighteen years of age if a female, out of keeping of the lawful guardian of such minor, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. In the present case, since the age of the victim was more than 18 years on the date and time of offence, Section 361 read with Section 363 of the IPC would not be applicable in the present case and, therefore, the conviction of the appellant for offence under Section 363 of the IPC is hereby set aside. Conclusion:- 14.In view of the aforesaid discussion and analysis, we are of the considered opinion that the prosecution has not been able to bring home the offence against appellant Dinesh Verma beyond reasonable doubt as the victim was the major on the date and time of the incident, she was the consenting party and, therefore, medical evidence is also of no use to the prosecution. As such, the appellant is entitled for acquittal on the basis of principles of benefit of doubt. As a consequence, Criminal Appeal No.634/2011 filed by appellant Dinesh Verma is allowed and 10 CRA No. 634 of 2011 & ACQA No. 130 of 2011 ACQA No.130/2011 is dismissed. Appellant Dinesh Verma is stated to be on bail. He need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437- A of the CrPC. 15.This criminal appeal is allowed. 16.Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Rakesh Mohan Pandey) Judge Judge Ankit