1 2025:CGHC:14752-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 993 of 2014 1 - Kaleshvar Patanwar S/o Tribhuvan Patanwar Aged About 29 Years S/o Village Bitkula P.S. Seepat, Distt. Bilaspur C.G. , Chhattisgarh ... Appellant(s) versus 1 - State of Chhattisgarh S/o Through The Distt. Magistrate Bilaspur C.G. , Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Samrath Singh Marhas, Advocate. For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ravindra Kumar Agrawal, J 27/03/2025 1. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure 1973, (for short the, Cr.P.C.) against the judgment of conviction and sentence dated 10.09.2014 passed by Learned Additional Sessions Judge (FTC) Bilaspur (C.G.) in Special Sessions Case No. 64/2014, whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentences U/s 363 of I.P.C. R.I. for 5 years and fine of Rs. 1000/-. in 2 default of payment of fine, further RI for 01 month. U/s 366 of I.P.C. R.I. for 10 years and fine of Rs. 1000/-, in default of payment of fine, further RI for 01 month. U/s 376(2)(i) of IPC No separate sentence has been awarded U/s 4 of Protection of Children from Sexual Offences Act, 2012. Life imprisonment with fine of Rs. 5000/- in default of payment of fine, further RI for 06 months. All the sentence are directed to run concurrently. 2. The brief facts of the case are that the father of the victim, P.W. 3, has lodged a report (Ex. P-3) to the police station Seepat, District Bilaspur, on 02-10- 2013 with the allegation that on 29-09-2013, his sister in law and his two daughters had gone to the house of the appellant and the appellant has kidnapped his younger daughter on the pretext of marriage which was informed to him by his elder daughter. Despite her search, she could not be found, and therefore, he lodged the report. The FIR for the offence under Sections 363 and 366 of IPC has been recorded against the appellant. After about some days, the father of the appellant took her to the police station, and then she was sent for her medical examination to the District Hospital, Bilaspur, where Dr. R. Tekam medically examined her and gave report Ex. P- 8. The appellant has admitted the medical report of the victim as provided under Section 294 of the Cr.P.C., and therefore, the doctor has not been examined. While medically examining the victim, the doctor has not noticed any external injury over her body and opined that no definite opinion can be given regarding rape. However, referred to radiologist for age determination. Two slides of her vaginal swab were prepared, sealed and handed over to the police for FSL examination. With respect to the age and date of birth of the victim, the police have seized the high school certificate of the victim vide seizure memo Ex. P-2 in which the date of birth of the victim is mentioned as 01-06-1997. Spot map Ex. P-5 was prepared by the police. The appellant was arrested on 02-12-2013 and he too was sent for his medical examination 3 to the Primary Health Centre, Seepat, where he was medically examined by Dr. Rajesh Kumar, who gave his report Ex. P-9. The appellant has admitted the medical report of the appellant as provided under Section 294 of the Cr.P.C., and therefore, the doctor has not been examined. The vaginal slides of the victim and her underwear were sent for chemical examination to State FSL, Raipur, from where report Ex. P-15 was received and semen and sperm were not found on the sent articles. The Statements under Section 161 of the Cr.P.C. of the witnesses have been recorded, and after completion of the usual investigation, charge sheet for the offence under Section 363, 366, 376 of IPC and Sections 7 and 8 of the POCSO Act was filed before the learned trial court. 3. The learned trial court has framed the charge under Sections 363 and 366 of IPC and Section 376 (2) of IPC/Section 4 and 6 of the POCSO Act. The appellant denied the charge and claimed trial. 4. In order to bring home the charge, the prosecution has examined as many as 07 witnesses. The statement under section 313 of CrPC of the appellant was also recorded in which he denied the material appears against him, pleaded innocence and submitted that he had been falsely implicated in the offence. One defence witness has been examined by the appellant. 5. After appreciation of the evidence available on record, the learned trial court has convicted the appellant and sentenced him as mentioned in para 01 of this judgement. Hence this appeal. 6. Learned counsel for the appellant would argue that the appellant is innocent and has been falsely implicated in the offence. No offence is made out against the appellant as alleged. The prosecution has failed to prove their case beyond reasonable doubt. There is no cogent and legally admissible evidence available on the record to show that the victim was minor and less than 18 years of age on the date of the incident. Although the high school certificate is seized by the police, vide seizure memo Ex. P-2, but the said 4 certificate is not relied on by the prosecution and has not been exhibited during the recording of the evidence. Only the seizure memo is there in the record. Likewise, the school register was also said to have been seized from Vivekanand School, Bitkula, vide seizure memo Ex. P-14 but the said school register has also not been relied on by the prosecution and no witness from the school have been examined. No other documents like the Kotwari register, birth certificate or the ossification test report have been filed by the prosecution to determine her age, and therefore the finding recorded by the trial court that on the date of the incident, the victim was minor is erroneous. He would further argue that the victim was having love affair with the appellant and was the consenting party in making physical relation with the appellant and has not raised any alarm while going with the appellant or stayed with him for a considerable period. She herself had eloped with the appellant on her own will. While travelling with him by motorcycle, she has not raised any alarm and did not make any complaint to anyone. She did not protest at the time of the alleged offence of having forceful sexual intercourse. No injuries have been found on the body of the victim. He would further argue that even if any act of sexual relation was being made by the appellant with the victim, the same was consensual, which does not come under the definition of rape. Hence, the alleged offences of I.P.C. and POCSO Act are not made out against the appellant, and he is entitled to acquittal. 7. On the other hand, the learned counsel for the state opposes the arguments advanced by the learned counsel for the appellant and submitted that the victim was minor and below 18 years of age at the time of the incident which is proved by the school admission and discharge register seized vide seizure memo ex. P-14 and high school certificate which was seized through seizure memo Ex. P-2, which contains the date of birth of the victim as 01-06-1997. The high school mark sheet of the victim supports the entries of the school 5 register. the victim was minor on the date of the incident and her consent is immaterial. The evidence of the victim need not be required for any corroboration and on the sole testimony of the victim, the conviction can be made. Therefore, there is no illegality or infirmity in the findings of the learned trial court. The minor victim was kidnapped/abducted by the appellant and kept away from her lawful guardianship and committed rape upon her. Therefore, the impugned judgement of conviction and sentence needs no interference. 8. We have heard the learned counsel for the parties and perused the record carefully. 9. With regard to the age of the victim, the prosecution has mainly relied upon the school admission and discharge register of the victim which is seized by Ex. P-14, which is seized by the police from the school but no school register has been relied on by the prosecution. Likewise, the high school certificate of the victim is also seized through the seizure memo Ex. P-2 but the said high school marksheet has not been relied on by the prosecution. Only the seizure memo is available in the case showing the seizure of these two documents. Further, there is a discrepancy in the date of birth written in both the seizure memos i.e. in Ex. P-2, the date of birth of the victim is mentioned as 01-06-1997, whereas in the document Ex. P-14, the date of birth of the victim is mentioned as 21-06-1997. Both the documents have not been exhibited in evidence so that the accused can cross-examine those documents regarding the age of the victim. Although the high school certificate is admissible under Section 35 of the Indian Evidence Act 1872, but in the absence of the same in the record, no inference can be drawn that the date of birth recorded in the high school certificate is correct. In two seizure memos Ex. P2 and P-14, there is a difference in the date of birth of the Victim. Only on the basis of seizure memo, the age of the victim cannot be determined yet the learned trial court held her minor. 6 10. The victim PW1 has stated in her statement that her date of birth is 21-06- 1997. In cross-examination she stated that she disclosed her date of birth on the basis of her school marksheet. Her parents can tell the actual date of her birth. 11. The P.W. 3, father of the victim, has stated in his deposition that the victim was aged about 16 years and 6 months at the time of the incident. He has not disclosed her date of birth and only her age is disclosed. He had gone to the police station to lodge the report along with the marksheet of the victim. He could not tell as to the mark sheet of which class he had given to the police. 12. The birth certificate or ossification report has not been produced by the prosecution. In the absence of cogent and admissible evidence, it cannot be said that the prosecution has discharged its burden to prove that the victim was less than 18 years of age at the time of the alleged commission of the offence. Therefore, it seems that there is no legally admissible documentary evidence with respect to the date of birth of the victim so as to hold that on the date of the incident, she was minor. Therefore, the age of the victim cannot be determined particularly in the absence of any other authentic records and, it would not be safe to hold that the victim was minor on the date of the incident. 13. So far as the allegation of kidnapping and rape is concerned, P.W.-1 the victim, has stated in her deposition that on the date of incident, she along with her elder sister and elder mother were in her house. At that time, the wife of the appellant came to her house and alleged that she is having illicit relations with her husband, but she denied then she took her niece to her house and assaulted her. When she returned back and disclosed about the marpeet, she along with her sister and elder mother had gone to the house of the appellant and raised an objection, and then the appellant came on the spot and forcefully took her to Bilaspur by his van. He kept her in the house 7 of his friend for about 2 days. When his friend came to know that he kidnapped her, he thrown them from his house and then the appellant took her to Sarkanda, Lodhi Para in the house of Nanku Sidar, where he kept her for about 6-7 days and made physical relationship with her. Thereafter, the appellant took her to the village Katnai and kept her in the house of his sister- in-law for about 8 days and made physical relations with her. When they were coming to Bilaspur, on the way, his wife met them, and she had taken her to Seepat police station. In cross-examination, she stated that when they reached to the house of his friend, her daughter was also there in his house, and other adjoining houses were also there. Till coming to the house of his friend, she has not asked for help from anyone despite bypassing the number of persons on the way. She further stated that in between Seepat to Bilaspur Sarkanda Police Station is situated and in between Bilaspur to Janjgir other police station is also situated. In her police statement she disclosed that the wife of the appellant has objected and raised allegation that she is having relation with her husband and if it is not there in her police statement Ex.D/1 she could not tell the reason the threatening given by the appellant to her, wife of the appellant met them on the way and assaulted her have also been disclosed by her in police statement Ex.D/1 and if it is not there in her police statement she could not tell the reason. From the evidence of victim PW-1 it reflects that she visited various places with the appellant without raising any objection and without making any complaint to anyone. Firstly she stayed at the house of the friend of the appellant for about 2 days thereafter they stayed about 6 – 7 days at Sarkanda Lodhipara from there they had gone to the house of parents of his sister-in-law and resided there for about 8 days would show that she was the consenting party in eloping with the appellant and making physical relation with her. In all the way she did not tried to get out from the clutches of the appellant or flee from the place where they resided even she has not raised any alarm or not try to 8 save herself when he allegedly made forceful sexual intercourse with her. There is no any sign of struggle on her body and even there is no evidence that while making physical relation with the appellant she protested or given any nail scratch mark or teeth bite on the body of the appellant. The evidence of the victim clearly reveals that she was the consenting party in eloping with the appellant and making physical relation with him. 14. The PW-3, is the father of the victim have stated in his evidence that his middle daughter has informed about the incident and after search for 2 -3 days he lodged the report to the police on 02.10.2013 on 15.10.2013 the father-in-law of the appellant took his daughter to the police and they informed him that the victim is found at Kali Mandir. In cross-examination he admitted that when he was being informed about his daughter he immediately has not lodged any report to the police. In his cross-examination he denied the suggestion given due to old enmity he made allegation against the appellant. 15. From these evidences when it appears that the prosecution has failed to prove that the victim was minor and from the evidence of the victim it reflects that she herself on her own will had gone with the appellant they visited various places and stayed for aobut 15 days together she has not made any complaint to anyone about kidnapping or rape upon her. Clearly demonstrate that she was the consenting party in eloping with the appellant and making consensual physical relation with him and therefore, there are lack of cogent and clinching evidence with respect to the kidnapping and rape upon the victim and his conviction and sentence is liable to be set aside. 16. In the matter of S. Varadarajan Vs. State of Madras, reported in AIR 1965 SC 942, the Hon'ble Supreme Court has considered distinction between 'taking' and allowing a minor to accompany a person and held in para 9 and 10 of the judgment as follows:- 9 “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 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 fulfilment 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. The version of the victim commands great respect and acceptability, but if there are some circumstances which cost 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 other witnesses. The law is well-settled that in a 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, if her statement is not believable, then the accused cannot be convicted. The prosecution has to being home the charges levelled against the appellants beyond reasonable doubt, which the prosecution has failed to do in the instant case. 18. Considering the entire evidence available on record, the evidence with regard to the age and conduct of the prosecutrix, we are of the opinion that the prosecution has failed to prove that the prosecutrix was less than 18 years of 10 age at the time of incident. Further, she was a consenting party with the appellant in making physical relation with him. Therefore, in the above facts and circumstances of the case, the offences under sections 363, 366, 376(2) (i) of I.P.C. and section 4 of POCSO Act are not made out against the appellant. 19. For the forgoing reasons, the appeal is allowed. The judgment of conviction and order of sentence dated 10.09.2014 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be on bail. His bail bond shall continue for the further period of 6 months as provided under Section 481 of BNSS, 2023. 20. The trial court records along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.04.04 18:29:40 +0530