1 2025:CGHC:41778 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 658 of 2019 State Of Chhattisgarh Through Station House Officer, Police Station Karora, District Raipur, Chhattisgarh ... Appellant(s) versus 1 - Akku @ Akash Rekwar S/o Rakesh Rekwar, Aged About 19 Years 2 - Bhagwan Das S/o Babulal Shivhote, Aged About 63 Years, Respondents No.1 & 2, both are R/o Jaath Khedi, Indranagar Phase 2 Bagh Mugaliya, Police Station Birodh, District Bhopal, Madhya Pradesh. Presently R/o Village Ghiwra, Police Station Kharora, District Raipur, Chhattisgarh ... Respondent(s) For Appellant/ State : Mr. Dilman Rati Minj, Government Advocate For Respondents : None though served. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board SHYNA AJAY Digitally signed by SHYNA AJAY DN: cn=SHYNA AJAY, o=PERSONAL, st=Chhattisgarh, c=IN 2 19/08/2025 1. This Acquittal Appeal has been preferred under Section 378(1) of the Code of Criminal Procedure, 1973 against the judgment of acquittal dated 26.9.2018 passed by the Special Judge (Protection of Children from Sexual Offences Act, 2012), Raipur in Special Criminal POCSO Case No.49/2018, whereby, the respondents/accused were acquitted of the charges under Section 363, 366, 34 of the IPC and Section 17 of the Protection of Children from Sexual Offences Act, 2012 (in short “the Act, 2012”). 2. Brief facts of the case are that on 28.1.2018, the prosecutrux (PW-1), a minor girl, aged about 17 years and having studied up to 7th standard, lodged an FIR at Police Station Kharora vide Ex.P/1. She stated that on 26.1.2018, at about 3:00 AM in the middle of the night, a juvenile in conflict with the law ‘A’, residing in the same village ‘G’ as the prosecutrix called her on her mobile and informed her that he was standing near his house. The juvenile came along with the present respondents/accused on the motorcycle and allured the prosecutrix on the pretext of marriage. Subsequently, the prosecutrix came out of her house and went along with the juvenile and other accused on a motorcycle, who took her to his house. On the following day i.e. 27.1.2018, at about 12:00 noon, the prosecutrix (PW-1) informed her mother of her whereabouts through the juvenile’s mobile. Upon receipt of the information, her father and other family members went to the 3 house of the juvenile and brought her back home. 3. Further case of the prosecution is that on 27.1.2018, at about 1:30 AM, while the prosecutrix (PW-1) was sleeping at her home, her elder sister – ‘P’ (PW-2) woke up to attend the nature’s call and found the door open. She also saw a person standing near the door holding a rod, on which, she raised an alarm and called her father by making noise. Upon this, the said person dropped the rod inside the house and fled from the spot. He was later identified as a juvenile. It was also found that he had also left his motorcycle near the pani tanki (water tank) of the prosecutrix’s house. During investigation, the crime detail form and sketch map (Ex.P/2) was prepared. The marksheet (Ex.P/3) of the prosecutrix, in which her date of birth is recorded as ‘19.4.2001’ was seized. A Nokia mobile was seized from the possession of the prosecutrix (PW-1) vide Ex.P/4. The identification memo of the juvenile was prepared vide Ex.P/6. The motorcycle and rod were seized vide Ex.P/7. The Call details form (Ex.P/10) was obtained from the Service Provider vide Ex.P/9. Statements of the witnesses were recorded. Another mobile was seized from one Ashok Kumar vide Ex.P/15. One Hero Honda Motorcycle was seized vide Ex.P/16. 4. After completion of the investigation, the charge sheet was filed. During trial, the respondents/accused abjured their guilt and claimed to be tried. In order to prove its case, the prosecution has examined as many as 11 witnesses and exhibited 26 documents 4 vide Ex.P/1 to Ex.P/26. The Marksheet of the prosecutrix was also seized as Article ‘A’. In the statements recorded under Section 313 of the Cr.P.C., the respondents/accused stated that they have been falsely implicated and they did not adduce any witness in defence. 5. After evaluation of the evidence available on record, the trial Court acquitted the respondents/accused. Hence, this Appeal. 6. Learned counsel for the State would submit that the trial Court has not appreciated the evidence in its proper perspective and thus, prays to allow the appeal. 7.Heard learned counsel for the State and also perused the record with utmost circumspection. 8. The prosecution conducted the entire trial. Allegedly, the offence occurred on 27.1.2018 in the middle of the night at about 3:00 AM. On that date, the present respondents/accused assisted the juvenile in kidnapping the prosecutrix (PW-1) from the lawful custody of her parents with the intention of seducing her for illicit relations and marriage and thereby, abetted the said offence. However, from the statement of the prosecutrix (PW-1) and the FIR (Ex.P/1), it appears that no such incident occurred on the stated date i.e. 26.1.2018, and there is no charge pertaining to the said date. Despite the aforesaid infirmity, the FIR (Ex.P/1) and the statement of the prosecutrix (PW-1) reveal that in the night in question, the prosecutrix received a call from the juvenile stating that he was standing outside her house. She then voluntarily 5 opened the door, came out of the house, joined the company of the juvenile and left with him on his motorcycle. It is further alleged that at the relevant time, the present respondnets were also present at the place and took the prosecutrix on a motorcycle along with the juvenile. 9. In the matter of S. Vardhrajan Vs. State of Madras1, the following was materially observed in 6, 7, 9, 16, 19 & 20 : 6. It is not disputed that Savitri was born on November 13, 1942 and that she was a minor on October 1st. The other facts which have already been stated are also not disputed. A two-fold contention was, however, raised and that in the first place Savitri had abandoned the guardianship of her father and in the second place that the appellant in doing what he did, did not in fact take away Savitri out of the keeping of her lawful guardian. 7. ………..It will thus be seen that taking or enticiting away a minor put of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to “taking” out of the keeping of the lawful guardian of Savitri. …….In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. ……There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in 1 AIR 1965 SC 942 6 law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. ………She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. …….. In the light of this observation the learned Judge considered the evidence and came to the conclusion that there was some legal evidence upon which a court of fact could find against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself: it was she who telephoned to the appellant and fixed the rendezvous she walked up to that place herself and found the appellant waiting in the car; she got into the car of her own accord without the appellant asking her to step in and permitted 7 the appellant to take her wherever he liked. Apparently, her one and only intention was to become the appellant's wife and thus be in a position to be always with him. 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 S. 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. 16. The other case is Rex v. James Jarvis [(1903) 20 Cox CC 249] . There Jelf, J., has stated the law thus to the Jury: “Although there must be a taking, yet it is quite clear that an actual physical taking away of the girl is not necessary to render the prisoner liable to convictions; it is sufficient if he persuaded her to leave her home or go away with him by persuasion or blandishments. The question for you is whether the active part in the going away together was the act of the prisoner or of the girl; unless it was that the prisoner, he is entitled to your verdict. And, even if you do not believe that he did what he was morally bound to do — namely, tell her to return home — that fact is not by — itself sufficient to warrant a conviction; for if she was determined 8 to leave her home, and showed prisoner that that was her determination, and insisted on leaving with him — or even if she was so forward as to write and suggest to the prisoner that he should go away with her, and he yielded to her suggestion, taking no active part in the matter, you must acquit him. If, however, prisoner's conduct was such as to persuade the girl, by blandishments or otherwise, to leave her home either then or some future time, he ought to be found guilty of the offence of abduction.” In this case there was no evidence of any solicitation by the accused at any time and the jury returned a verdict of “not guilty”. Further, there was no suggestion that the girl was incapable of thinking for herself and making up her own mind. 19. As against this Mr Ranganadham Chetty appearing for the State has relied upon the decisions in Bisweswar Misra v. The King [ILR 1949 Cut 194]; (AIR 1949 Orissa 22) and In re, Khalandar Saheb, ILR 1955 Andhra, 290. The first of these decisions is distinguishable on the ground that it was found that the accused had induced the girl to leave the house of her lawful guardian. Further the learned Judges have made it clear that mere passive consent on the part of a person in giving shelter to the minor does not amount to taking or enticing of the minor but the active bringing about of the stay of the minor in the house of a person by playing upon the weak and hesitating mind of the minor would amount to “taking” within the meaning of S. 361. 20. We are satisfied, upon the material on record, that no offence under S. 363 has been established against the appellant and that he is, therefore, entitled to acquittal. Accordingly we allow the appeal and set aside the conviction and sentence passed upon him. Appeal allowed.” 9 10. Reverting to the facts of the present case, from the conduct of the prosecutrix, it is evident that she voluntarily joined the company of the juvenile without informing her parents. She opened the door of her house at night and left on the juvenile’s motorcycle. The aforesaid evidence clearly demonstrates that the prosecutrix was not taken out of the keeping of her lawful guardian; rather, she left the house of her own volition and accord. 11. Furthermore, with regard to identification of the accused/respondents, it has been stated that on the alleged date of the offence i.e. 27.1.2018, when the sister of the prosecutrix - ‘P’ (PW-2) awoke for the nature’s call, she found that the door was open and while she was going to close the door, she saw one person standing near the door having a rod. When she raised a hue and cry, shouting “chor, chor” and called her father, the said person fled. She clearly admitted that she could not identify the said person due to darkness. The prosecutrix (PW-1) also admitted during cross-examination that her sister ‘P’ had not identified the said person. This demonstrate that so far as the date of the offence i.e. 27.1.2018 for which the charge has been framed against the respondents/accused is concerned, they have not been identified. 12. To establish that the prosecutrix (PW-1) was below 18 years of age on the date of the offence, the prosecution has relied upon the Dakhil Kharij Register (Ex.P/25), wherein her date of birth is recorded as 19.4.2001. This document has been duly proved by 10 the Incharge Head Master namely Sanat Kumar Diwan (PW-10). In the cross-examination, this witness admitted that there was discrepancy in the name of the prosecutrix (PW-1) as recorded in the School Register. He also stated that he was not aware of the basis on which her date of birth had been entered in the school register. 13. The Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana 2 , has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit 3 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence of the same, it cannot be relied upon. For the sake of brevity, para No. 14 & 15 of the judgment are reproduced hereunder:- “14. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. “14…. The date of birth mentioned in the scholar’s register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar’s register must be shown to be made on the basis of information given by the parents or 2 2023 SCC Online SC 1397 3 1988 (Supl.) SCC 604 11 a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar’s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth such an entry will have no evidentiary value.” 15. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.” 14. In the case of P. Yuvaprakash vs. State Rep. By Inspector of Police 4 , the Hon'ble Supreme Court observed in para 13 as under: “13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: (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) 4 AIR 2023 SC 3525 12 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.” 15.In light of the aforesaid decisions of the Supreme Court, this Court is of the considered opinion that the prosecution has also failed to prove any clinching and legally admissible evidence to prove the fact that the prosecutrix (PW-1) was minor on the date of the offence. 16. In the matter of Constable 907 Surendra Singh & another vs. State of Uttrakhand5, the law has been reiterated that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; and that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible. 17. In view of the above, this Court does not find any perversity in the appreciation of evidence by the trial Court and the view taken by it is a possible one. 18.Resultantly, the Appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Shyna 5. 2025 INSC 114 13