1 / 17 2025:CGHC:7366 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1033 of 2019 Judgment reserved on 19.11.2024 Judgment delivered on 10.02.2025 Kishore Khatik S/o Bannaji Khatik Aged About 30 Years R/o Village Pachewar, District Tonk Rajasthan, At Present R/o Khatik Mohalla, Madanganj, Under Over Bridge, Gandhi Nagar, Kishangarh, District Ajmer, Rajasthan., District : Ajmer, Rajasthan ... Appellant versus State Of Chhattisgarh Through Station House OfÏcer, Police Station Gudiyari, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Respondent ---------------------------------------------------------------------------------------- For the Appellant : Mr. K.K. Pandey, Advocate Respondent/State : Mr. Pramod Shrivastava, Dy. GA ---------------------------------------------------------------------------------------- Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment \ 1. This Criminal Appeal under Section 374 (2) of CrPC has been filed against the judgment of conviction and order of sentence dated 08.04.2019 passed by Special Judge (Protection of Children from Sexual Offences Act) Raipur in Special Criminal SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2025.02.10 18:09:18 +0530 2 / 17 (POCSO) Case No. 02/2018 by which the appellant has been convicted under Sections 363,366,376 of the IPC and 6 Protection of Children from Sexual Offences Act,2002 and sentenced him to undergo rigorous imprisonment for 3 years to pay fine of Rs. 500/- in default of payment of fine to undergo additional RI for 1 month under Section 363 IPC, RI for 5 years and to pay fine of Rs. 500/- in default of payment of fine to undergo additional RI for 1 month under Section 366 IPC, RI for 3 years to pay fine of Rs. 500/- in default of payment of fine to undergo additional RI for 1 month under Section 376 IPC and RI for 10 years to pay fine of Rs. 2000/- in default of payment of fine to undergo additional RI for 2 months under Section 6 of POCSO Act with a direction to run the sentence concurrently. 2. The prosecution case, in brief, is that the victim’s mother lodged a missing report of her daughter under missing report No. 1 of 2017 in Police Station on the basis of which FIR Ex.P-6 was registered against unknown person alleging that her minor daughter without information went to anywhere from her house and did not return and in spite of intense search made by her, they could not discover the whereabouts of the victim thereafter Police registered Crime No. 02/2017 under Section 363 IPC. During investigation, on 18.11.2017 the mother of victim presented the victim before the Police Station Gudhiyari thereafter recovery panchanama was prepared and statement of victim under Section 164 CrPC was registered by the Police wherein it is alleged that prior to one and half year she went to 3 / 17 Hanuman Mandir near Railway Station where co-accused Pappu met with her, gave prashad and took her with him and married her and thereafter the accused took the minor victim with him to Kishangarh Rajasthan where he kept the victim as his wife and had committed sexual intercourse with her, as a result of which she became pregnant and gave birth to a child. Subsequently, the accused was arrested and offence under Sections 366, 376 of the IPC and Section 6 of the POCSO Act was also added against him. On completion of usual formalities, challan was filed before the Special Judge and learned Special Judge on hearing the parties and after appreciation of evidence and material on record convicted the appellant as mentioned above. 3. In order to bring home the guilt of appellant, the prosecution has examined as many as 10 witnesses, victim (PW-1), Bablu Ramteke (PW-2), Shiv Kumar Sahu (PW-3), Dr. Bhanu Pratap Chandrakar (PW-4), Mukesh Jha (PW-5), Shivlal Ratnakar (PW- 6), Dr. Manshi Malin (PW-7), Lakhan Lal Sahu (PW-8), Dr. Vidya Shrikumar (PW-9) and Santoshi Malin (PW-10) and exhibited documents from Ex.P-1 to Ex. P-19 A. The accused did not examine any witness in his support. Statement of the accused was recorded under Section 313 CrPC. 4. The victim (PW-7) was examined before the Court wherein her statement under Section 164 CrPC was recorded before the Court wherein she has stated that Pooja took her to Raipur Railway Station where she told me that she will come after 4 / 17 drinking water, but did not return thereafter a man and a woman came there and gave prashad to eat her, after eating the same she became unconscious the name of man was Pappu and woman was Gayatri. They took her to their house. Both of them forcefully got her married to Kishore Khatik and sent her with him to Kishangarh Rajasthan where the appellant and his mother used to beat her oftenly. She called her aunt on phone and told her that she was at Kishangarh Rajasthan then her mother came to Kishangarh to take her back. Accused Kishore Khatik was threatening to kill my mother and my younger sister and her mother filed a report before police station about my missing thereafter she came back to Raipur with her mother in October 2017. She also stated that Pappu and Gayatri forcibly took her to their house and sold her to accused Kishore Khatik where the appellant kept her as his wife and from the said relationship one child was also born, birth certificate of the child was annexed as Exhibited as Article -A. 5. Mother of the victim was examined before the Court wherein she has stated that the victim was left at Raipur Railway Station by her friend where Munna and Bablu met with her thereafter they called the appellant at Ramnagar and they gave mixed intoxicated food thereafter the appellant along with co-accused took the victim to Jaipur where she became conscious then the co-accused and appellant threatened her on the point of knife thereafter they took her to Kishangarh and kept her there and committed marpit with her. She has also 5 / 17 stated that the victim called her sister’s mobile and narrated the incident to her thereafter she went to Kishangarh with police and took her to Raipur with her. The victim came with her minor son and recovery panchama (Ex.p-2) was prepared by the police. The witness has stated that she lodged the missing report of her daughter in police Station Gudhiary. The other witnesses have reiterated the stand taken by the victim in her evidence and they have fully supported the case of the prosecution. 6. Learned Special Court after appreciating evidence, material on record has convicted appellant for commission of offence under Sections 363,366,376 of the IPC and 6 Protection of Children from Sexual Offences Act 2012 and sentenced him as mentioned above. Being aggrieved with the judgment of conviction and order of sentence of the Special Court the appellant has preferred the appeal before this Court. 7. Learned counsel appearing for the appellant submits that the prosecution has not proved its case beyond reasonable doubt and and without there being any iota of evidence, the trial Court has convicted the appellant. He would further submit that the Police has not recovered the victim from the possession of the appellant and the victim was in love affair with the appellant. The prosecution has not been able to prove the ingredient of offence under Sections 363, 366, 376 of the IPC and Section 6 of the POCSO. He would further submit that there is omission and contradiction in the statement of 6 / 17 prosecution witnesses which is overlooked by the trial Court and would pray for set aside the judgment of conviction and order of sentence. To substantiate his submission, he would refer to the judgment of High Court of Chhattisgarh in the case of Hasib Khan vs. State of Chhattisgarh in CRA No. 1599 of 2022 decided on 13.02.2024. 8. Per contra learned counsel for the state would submit that the prosecution has proved its case beyond reasonable doubt, therefore, the order impugned does not suffer from any irregularly or infirmity warranting interference by this Court in the instant appeal. 9. I have heard learned counsel for the parties and perused the record. 10. In order to consider the age of the victim I have examined the evidence available on record produced by the prosecution i.e. statement of the headmistress of the primary school wherein the said witness has stated that as per Dakhil Kharij Register the age of the victim is 03.07.2009. The said witness was examined by the defense wherein she has admitted that she was not posted when the parents of the victim admitted her in the school. She has also stated that she cannot say that parents of the victim have submitted any certificate regarding date of birth of the victim. She has also stated that regarding the date of birth Dakhil Kharij Register was available in the school and no other documents are available with her. 7 / 17 11. For conviction of the accused under the POCSO Act, this Court has to ascertain the date of birth of the victim as per the provisions of Section 94 of Juvenile Justice (Care and Protection of Children) Act, which provides for presumption and determination of the age. The same reads as under:- 94. Presumption and determination of age.— (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 12. From perusal of statements of prosecutrix (PW-1), her Uncle (PW-2) as well as other prosecution witnesses, it appears that there is no any cogent and clinching evidence led by the prosecution to hold that on the date of incident, the prosecutrix was minor and below 18 years of age. 8 / 17 13. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under : 33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub- section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be xxxxxx xxxxxx xxxxxx 33.3 That when when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJAct, 2000 or sub Section (2) of Section shall be sufÏcient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4 The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 9 / 17 33.5 That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub- section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance. 33.6 That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8 If two views are possible on the same evidence, the courtshould lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9 That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or ofÏcial document maintained in the discharge of ofÏcial duty would have greater credibility than private documents. 33.10 Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11 Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of 10 / 17 documents mentioned in Section 94(2) of the JJ Act, 2015. 14. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon’ble Supreme Court has held in para 14 to 17 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 OfÏcial (Deputy Tahsildar) had stated on oath that the records for the year 1997 in 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: 11 / 17 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 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 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. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court 12 / 17 indicated the hierarchy of documents that would be accepted in order of preference.” 16. Now, reverting to the facts of the present case and after considering the evidence collected by the prosecution and in the light of the aforesaid judgments of Hon’ble Supreme Court, I find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the prosecutrix/victim was minor and less than 18 years of age on the date of incident, despite the fact that the trial Court in the impugned judgment has held the prosecutrix minor. Accordingly, I set aside the findings given by the trial Court that on the date of incident, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching evidence. Accordingly, the accused is acquitted of the charges of offence under Section 6 of the POCSO Act. 17. Since the prosecution has failed to prove to its case beyond reasonable doubt that the victim was minor on the date of incident, therefore, his conviction under Section 6 of the POCSO Act and sentenced him for 10 years deserves to be quashed and it is quashed. 18. Learned trial Court after appreciating the evidence and material on record has held that the charges levelled against the appellant Sections 363,366,376 of the IPC have been found proved. Now this Court has examined whether the finding of the learned trial Court for conviction under Sections 363,366,376 of the IPC is legal, justified or not. 13 / 17 19. To appreciate this point this Court has to extract the provisions of Section 363,366,376 of the IPC which reads as under:- Section 363 Punishment for kidnapping.—Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 366 Kidnapping, abducting or inducing woman to compel her marriage, etc.—Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid. Section 376 (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which 1 [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine].(2) Whoever,— (a) being a police ofÏcer, commits rape—(I) within the limits of the police station to which such police ofÏcer is appointed; or (ii) in the premises of any station house; or (iii) on a woman in such police ofÏcer's custody or in the custody of a police ofÏcer subordinate to such police ofÏcer; or (b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or (c)being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or (e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or (g) commits rape during communal or sectarian violence; or (h) commits rape on a woman knowing her to be pregnant; or (j) commits rape, on a woman incapable of giving consent; or (k) being in a position of control or dominance over a woman, 14 / 17 commits rape on such woman; or (l) commits rape on a woman suffering from mental or physical disability; or (m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or (n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. Explanation.—For the purposes of this sub-section,—(a) "armed forces" means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government; (b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation; (c) "police ofÏcer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861); (d) "women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children. 3 [(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim.] 20. Considering the statement of the victim (PW-7) wherein she has stated that some Akka Bai grand son and his wife came to her and gave some Prashad to her eat and after eating Prashad, she became unconscious and she became conscious at Rajasthan, when she asked for returning to home they have taken them to house of Kishore Khatik where she lived with him about 1 ½ year and also became pregnant and gave birth to one male child. She has admitted in the cross examination that 15 / 17 she was living like daughter-in-law in the house of accused and her husband opened one bank account in her name. She has also stated that she was living in the house along with accused and his mother. She has stated that she has given normal deliver at Rajsthan and remained in the hospital for three days but she did not make any complaint. She has also admitted that after delivery of child, quarrel between mother in law and herself became frequently and her husband was not supporting her. She also admitted that due to quarrel she fed up and she intented to leave that place. She has voluntary stated that when they have taken her since then she intented to escape from there but she did not take any recourse available to her when occasions are available to her in the hospital also and in the house where she was residing with her husband and mother in law. 21. DW-1 has stated before the trial Court that the victim used to reside in her house as daughter in law. She has also stated that the mother of victim has visited her house at Rajasthan and demanded Rs. 50,000/- from her when she refused she started quarreling with her and took back the victim with her from Rajasthan to Raipur along with grandson. She has also stated that her phone was with the victim where she can talk to her friend and relative also on several times. The witness was cross examined but nothing was brought on record and only suggestion was given regarding demand of Rs. 50,000/- by the 16 / 17 victim’s mother and no complaint was made to the police station by her. 22.. From the evidence of the victim, considering the fact that the victim has ample opportunity to leave Kishangarh, Rajasthan where she lived about 1 ½ years with the appellant. Even in the Government Hospital there was opportunity for her to lodge the report against the appellant and her mother-in-law but she did not take any recourse against them. Similarly, the version of the victim that after eating prashad at Raipur and got become unconscious there and became conscious at Rajasthan only it is improbable to accept as the distance between Raipur to Kishangarh, Rajasthan is 1100 KM which took long time to travel and during travel many passengers must have seen her unconscious condition. Neither anyone disclosed the incident to Railway police nor any witness was examined by the prosecution to corroborate the version of the victim which also creates doubt over her version. From the statement of mother of the victim, she has not contacted to local police regarding abduction of her daughter though she lodged missing report at Raipur and she herself produced the victim before the Police as evident from recovery panchanama (Ex.P-2). Further, from the evidence of the victim she has stated that Pappu had given her prashad but the prosecution has also not examined him in his support which creates doubt over the case of the prosecution for conviction of the accused under Section 363 and 366 of the 17 / 17 IPC, as such accused is entitled to get benefit of doubt for commission of offence under Section 363 and 366 of the IPC. 23. So far as offence under Section 376 IPC is concerned, since the prosecution is unable to prove the age of the victim, therefore, the accused has been acquitted from the charges under the POCSO Act and the prosecution is unable to prove its case that the victim was abducted from her lawful guardianship and also unable to prove that the victim was subjected to rape without her consent, as such, the prosecution has not proved its case beyond reasonable doubt, therefore, the accused is acquitted of offence under Section 376 IPC granting benefit of doubt. 24. 24. Further considering the submission, evidence material on record and law, it is quite vivid that the prosecution failed to prove its case beyond reasonable doubt, as the accused is liable to be acquitted from the charges levelled under Section 366, 366, 376 and section 6 of the POCSO. Accordingly, Criminal appeal is allowed. The impugned judgment of the trial Court is set aside. The appellant is acquitted from all the charges levelled against him. The appellant is stated to be in jail. He be released forthwith from the jail, if not required, in any other case. Sd/- (Narendra Kumar Vyas) Judge Santosh