2025:CGHC:6667-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 15 of 2016 Satyam Kumar @ Bhola Satanami S/o Gopy Satnami Aged About 19 Years Profession Farmer R/o Village Kumhi, P.S. Bareli, Distt. Bemetara Chhattisgarh ... Appellant versus State Of Chhattisgarh Through P.S. Bareli, Distt. Bemetara, CG ... Respondent (Cause title is taken from the CIS) ------------------------------------------------------------------------------------------------------------------ For Appellant : Shri Gajendra Sahu, Advocate For Respondent/State : Shri Atanu Ghosh, Dy GA ------------------------------------------------------------------------------------------------------------------ Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 05.02.2025 1. This appeal under Section 374 (2) of the CrPC arises out of the judgment of conviction, and order of sentence dated 24.11.2015 passed by the learned Additional Sessions Judge, Bemetara in Session Trial No.35 of 2015, whereby the appellant has been convicted and sentenced as under : Conviction Sentence Under Section 363 of the IPC RI for 3 years and fine of Rs.1,000/- in default of payment of fine amount, 6 months additional RI Under Section 366-A of the IPC RI for 5 years and fine of Rs.1,000/- in default of payment of fine amount 1 years additional RI Under Section 12 of the Protection of Children from Sexual Offences Act, 2012 RI for 3 years and fine of Rs.1,000/- in default of payment of fine amount, 6 months Additional RI All the sentences to run concurrently Cra 15 of 2016 2 2. Brief facts of the case are that on 03.03.2015, father of the victim, PW2 lodged a missing report Ex.P3 to the Police that his minor daughter is missing since 28.02.2015, and her whereabouts could not be traced out despite his search at nearby places as well as at his relatives’ houses. On the basis of his written report, offence under Section 363 was registered against unknown person, and the Police started investigation. During the investigation, victim was recovered on 08.03.2015 from the house of appellant, and recovery Panchanama Ex.P1 was prepared in presence of the witnesses. The victim was sent for her medical examination to the Government Hospital, Berla, where she was being medically examined by Dr Nidhi Meshram PW7, who after her medical examination, gave report Ex.P11. While medically examining the victim, the doctor had not noticed any external injury on the body of the victim, and she found that victim is fully matured sexually, she is habitual for sexual intercourse, and no definite opinion about recent rape or sexual intercourse can be given. Two slides of her vaginal swabs were prepared, sealed and handed over to the police for their chemical examination. Spot map Ex.P4 was prepared by the Police and Ex.P5 was prepared by the Patwari. With respect to the age and date of birth of the victim, Progress Report Card of the victim of her Primary School has been seized by the Police vide Ex.P6. The underwear of the victim was also seized vide seizure memo Ex.P8. Police also seized a certificate with respect to date of birth of the victim from the Head Master, Government Primary School, Kumhi, District- Cra 15 of 2016 3 Bemetara, vide Ex.P23. Appellant was arrested on 08.03.2015, and he too was sent for his medical examination to the PHC, Berla, where the appellant was medically examined by the doctor, who found him capable of intercourse. The said MLC report of the appellant was also admitted by the defence on 09.11.2015, and the same has been marked as Ex.P24. The vaginal swabs of the victim, her underwear, and the underwear of the appellant were sent for their chemical examination to the State FSL, Raipur, from where report Ex.P22 was received. According to the FSL report, semen and sperm were found on the vaginal swab of the victim, however, no semen or sperm were found on the underwear of the appellant. 3. The statement of the witnesses under Section 161 of the CRPC have been recorded. The statement of the victim under Section 164 of the CRPC has also been recorded and after completion of usual investigation, charge-sheet was filed against the appellant for commission of offence under Sections 363, 366A and 376 of the IPC and Section 5(l)/6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) before the learned trial court. 4. The learned trial court has framed charge against the appellant for the offence under Section 363, 366A, 376 of the IPC, and Section 6 of the POCSO Act. The appellant abjured his guilt and claimed trial. 5. In order to establish the charge framed against the appellant, prosecution has examined as many as 14 witnesses, statement of the Cra 15 of 2016 4 appellant under Section 313 of the CRPC has also been recorded in which he denied the circumstances appearing against him and pleaded innocence and submitted that he has been falsely implicated in the offence. 6. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment of this appeal, hence this appeal by the appellant. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence led by the prosecution witnesses, which cannot be made basis for conviction of the appellant for the alleged offence. There is no cogent and clinching evidence with respect to the age and date of birth of the victim, that on the date of incident she was minor, and less than 18 years of age. No school register has been seized by the prosecution to prove age of the victim, and only a certificate Ex.P23 was seized from the Head Master of the School, which is not sufficient to determine the age of the victim. Further, from her Primary School progress Report Card, age of the victim cannot be be determined as the author of the School Register or the basis on which the date of birth was recorded in the School Register have not been proved by the prosecution. There was no evidence of Birth Certificate, Kotwari Register, or the ossification test report produced by the prosecution to determine her age. He would further Cra 15 of 2016 5 submit that from the evidence of the victim as well as her statements recorded under Sections 161 and 164 CrPC it appears that victim was major and was having love affair with the appellant, and she herself eloped with him on her own free will without raising any objection to anyone. She resided with the appellant for about ten days, and in between that period, she has not raised any alarm or not made any complaint to anyone while going with him to his house, or residing with him. The victim being consenting party in making physical relation with the appellant, and eloped with him on her own will, no offence either of kidnapping, or rape are made out against him. He is entitled for acquittal. 8. On the other hand learned counsel for the State would submit that prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions, the evidence of the prosecution witnesses are fully reliable and conviction of the appellant can be made on that basis. Age of the victim has been proved by the certificate issued by the Head Master of the School, which has been corroborated by the Progress Report Card of the victim, according to which date of birth of the victim is 15.06.2002, and thereby, she was minor on the date of incident. Even if she has not raised any alarm and has not protested, that itself does not make any difference in commission of offence, as she was minor on the date of incident, and unable to give her consent in making physical relation with the appellant. The appellant has made physical relation with the victim, who was minor after keeping her away Cra 15 of 2016 6 from her lawful guardianship. Therefore, offence of kidnapping and rape are clearly made out, which the learned trial Court has rightly considered in its judgment, and therefore, appeal filed by the appellant is liable to be dismissed. 9. Heard learned counsel for the parties and perused the records. 10. The first and foremost question for consideration would be is, the age and date of birth of the victim, as to whether on the date of incident she was minor or not. The prosecution has mainly relied upon the school certificate executed by the Head Master, Primary School, Kumhi, Berla, Ex.P23, as well as the Primary School Progress Report Card, Article A1. Ex.P23 issued by the Head Master of the School is sought to be proved by PW12, who is Assistant Teacher, Panchayat and also In- Charge, Head Master of the School. Progress Report Card is sought to be proved by the victim herself. PW12, Assistant Teacher Panchayat/In- Charge Master of the School has stated in his evidence that he has brought the original School Register with him. On the basis of entries made in the School Register, a Certificate was issued with respect to the date of birth of the victim, which is Ex.P23. According to the School register, the victim was got admitted in Class-1 on 19.06.2008, and her date of birth is 15.06.2002. In cross-examination, he admitted that at the time of her admission in the school, he was not posted there. He further admitted that who got admitted her in the school, he did not know, and further, he did not know Cra 15 of 2016 7 as to on what basis her father got recorded her date of birth in the school register. 11. The victim PW3 has stated in her evidence that she did not know her date of birth, she is aged about 13 years. 12. Progress Report Card of the Primary School was sought to be proved by PW2, father of the victim. In his evidence he stated that his daughter is aged about 14 years. Police seized Primary School Progress Report Card of his daughter which is Article A1. In cross- examination, he admitted that he did not know that at what age the victim was got admitted in the school. In the evidence of PW2, he has not disclosed any date of birth, also he did not know as to on which date she was admitted in the school. 13. Prosecution did not produce the School record though it may be available to them as the certificate Ex.P23 was prepared on the basis of School record. For reasons best known to the prosecution, the School record has not been seized, and produced in the case to prove the age of the victim. The certificate Ex.P23 has also not been proved by author of the School Register, and whatever recorded in the school register, it has been reproduced in the form of said certificate. But the fact remains that the School Register has not been proved, the basis on which entries have been made with respect to date of birth of the victim has also not been proved. Therefore, in such circumstances, and the evidence available on record, it is very difficult for this Court to hold that the Cra 15 of 2016 8 prosecution has proved age of the victim that she was minor and less than the age of 18 years on the date of incident. 14. So far as involvement of the appellant in the offence of kidnapping and rape of the victim is concerned, I again examined the evidence of the victim PW3. She stated in her evidence that she is well acquainted with the appellant as she also resident of the same village, and the appellant is her distant relative. He took her to Raipur by saying that he will marry with her. They went up to Tarpongi by walking, from there, they went to Raipur by Chota Hathi vehicle. After staying there for a week, they came to village Mohranga. The appellant was working as labour and they were residing in an apartment. In the apartment, they made physical relation with each other. When they came to Mohranga, the uncle of the appellant had made a telephonic call to father of the victim, and thereafter, Police came there, and took them back. In cross-examination, she admitted that appellant has not made any pressure upon her to go with him. She further admitted that while she was going with the appellant up to Raipur, she has not made any complaint to anyone on the way, and had not protested at any point of time. She admitted that she was residing at Raipur freely, and she can move around at any place of her own will. She further admitted that she was in love affair with the appellant, and wanted to marry with each other. 15. From the evidence of the victim, it is quite clear that she herself eloped with the appellant on her own will, without raising any objection, Cra 15 of 2016 9 and even engaged in making physical relation without any protest. Had she been subjected to kidnap, and rape by the appellant, she could have raised alarm while she was being kidnapped by the appellant, and made complaint to any person on the way to Raipur. Even while residing with the appellant at Raipur, she has not made any complaint to anybody, as she herself stated that that she was free to move to any place but she did not do so which makes it clear that she was consenting party in making physical relation with the appellant, and she herself on her own will had gone with the appellant up to Raipur. 16. So far as the kidnapping, or taking away the minor girl is concerned, Hon’ble Supreme Court in the matter of S. Varadarajan Vs State of Madras, AIR 1965 SC 942, observed in paras 9 & 10 as below : “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 circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 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 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 Cra 15 of 2016 10 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.” 17. PW1 is mother of the victim. She had not specifically stated anything about the incident, but she only stated that appellant has kidnapped her minor daughter. She admitted that appellant is cousin brother of the victim. 18. PW2 is father of the victim, who stated in his evidence that when the victim could not be found in the nearby places, he lodged her missing report. He was being informed by the uncle of the appellant that the victim was at village Mohranga along with the appellant, and thereafter, he along with other persons, had gone to village Mohranga and found that she was residing with the appellant, and then he informed lthe Police and recovered the victim. The victim has informed him about the incident. In cross-examination, he stated that he did not see them going together, and he disclosed whatever his daughter has informed him. 19. PW4, brother of the victim. He too has stated in his evidence that when the victim was not seen in his house, they lodged missing report, Cra 15 of 2016 11 and after about 8 days, she was found at village Mohranga along with the appellant. He stated in his evidence that the victim did not disclose him about the incident. 20. PW7 Dr Nidhi Mishra, who medically examined the victim has not found any external injury on her body, and opined that no definite opinion about recent rape or sexual intercourse can be given. 21. From all these evidences, it cannot be held unerringly, that the appellant has kidnapped the victim, and committed rape upon her. When the victim herself has gone with the appellant, she was not found to be minor, and has made physical relation with him without raising any objection, she appears to be the consenting party in making physical relation with the appellant, which does not amounts to either kidnapping, or rape. 22. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of her evidence, then it will not be safe to rely upon the said version of the victim. There are contradictions and omissions in the statement of the victim and her family members, including her mother. 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 which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, and if her Cra 15 of 2016 12 statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 23. From the aforesaid discussion, this Court does not find any cogent and clinching evidence, which makes reliable for conviction of the appellant for the alleged offences. 24. In the result, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 24.11.2015 is set aside, and the appellant is acquitted from all the offences. 25. Appellant is reported to be on bail. His bail bonds shall continue for further period of six months as provided under Section 481 of the BNSS 2023. 26. Record of the trial court along with copy of this judgment be sent back immediately to the learned trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE padma