1 2025:CGHC:48109 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1860 of 2022 Gulohar Banjare S/o Paklu Banjare Aged About 18 Years 3 Months (Presently 21 Years) R/o Village Jamgahan, Police Station Bhatgaon, District : Balodabazar-Bhathapara, Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Police Station Bhatgaon, District : Balodabazar-Bhathapara, Chhattisgarh. ... Respondent For Appellant : Mr. Vikram Pratap, Advocate For Respondent/State : Ms. Vaishali Mahilong, Panel Lawyer. Hon'ble Shri Ramesh Sinha , Chief Justice Order on Board 18.09.2025 1. In compliance with the Court’s order dated 25.08.2025, the bailable warrant was issued against the appellant and the same was served. The appellant is present before this Court today, and he has been identified by his counsel. Furthermore, the instant case is of the year 2022, hence, with the consent of the parties this Court proceeds to hear the matter finally. RAJSHEKHAR SONI Digitally signed by RAJSHEKHAR SONI 2 2. The criminal appeal arises out of the judgment of conviction and order of sentence dated 17.11.2022 passed by learned Additional District and Sessions Judge, Fast Track Special Court (POCSO Act), District – Balodabazar (C.G.) in Special Case (POCSO) No. 59/2020 whereby the appellant has been convicted and sentenced in the following manner: Sentence Conviction Under Section 363 of the Indian Penal Code (IPC) Rigorous Imprisonment for 03 years with fine amount of Rs. 500/-, in default of payment of fine further RI for 06 months. Under Section 366 of the IPC. Rigorous Imprisonment for 03 years with fine amount of Rs. 500/-, in default of payment of fine further RI for 06 months. Under Section 4 of Protection of Children from Sexual Offences Act, 2012 (In short, ‘POCSO Act’). Rigorous Imprisonment for 10 years with fine amount of Rs. 1,000/-, in default of payment of fine further RI for 01 year. (All the sentences will run concurrently) 3. When the interim order passed by this Court granting bail to the appellant on 23.01.2023, Mr. S.P. Sannat, learned counsel for the complainant was present, but he has not appeared today to contest the present appeal. 3 4. The prosecution story, in brief, is that on 17.08.2020, the complainant (Father of the victim/PW-01), a resident of Bhatgaon, lodged a report stating that on 15.08.2020 at about 04:00 AM, his minor daughter, aged about 16 years, had left the house without informing anyone. On enquiry, it was revealed that the accused/appellant, Gulohar Banjare, a resident of the same village, had taken away the minor daughter (victim/PW-02) by giving her inducement of marriage and had kept her at Kutrabod village. On the basis of this report, Crime No. 173/2020 was registered at Police Station – Bhatgaon, against the accused under Sections 363 and 366 of the IPC, and the matter was taken up for investigation. During the course of investigation, on 17.08.2020, the minor victim was recovered from the possession of the appellant, and a seizure memo was prepared. The statement of the victim was recorded, in which she stated that on the date of incident, the appellant took her away to Kutrabod on the pretext of marriage and committed sexual intercourse with her. Statements of other relevant witnesses were also recorded. The statement of the victim under Section 164 of the Code of Criminal Procedure (CrPC) was also recorded. The Investigating Officer (I.O.) prepared a site-map of the place of occurrence, and the Patwari also prepared a Spot-Map of the incident. The medical examination of the victim was conducted. Certain articles were seized for chemical examination. The age of the victim was verified during investigation by seizing the Dakhila Kharij Register 4 of her school and her Class IX mark-sheet, according to which she was found to be a minor. A motorcycle, CD Deluxe bearing registration No. CG-04 MR 9071, used in the incident, was also seized. On completion of investigation, and finding sufficient evidence, a charge-sheet was filed against the appellant for offences punishable under Sections 363, 366 and 376 of the IPC and Section 4 of the POCSO Act. 5. On perusal of the presented charge sheet and the attached documents, prima facie it appeared that the accused had committed the offence under Sections 363, 366 and 376 of the IPC and Section 4 of the POCSO Act, hence charges were framed under the said Sections. On being read out and explained the charges to the accused, the accused abjured his guilt and pleaded trial, saying that he was innocent. 6. In order to establish the charge against the appellant, the prosecution examined 11 witnesses and exhibited a total of 31 documents on record. The statement of the appellant under Section 313 of the CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the appellant/accused for the offences punishable under Sections 363 and 366 of the IPC and Section 4 of the 5 POCSO Act, sentenced him accordingly as mentioned in para 2 of the judgment. Hence, this appeal. 7. Learned counsel for the appellant argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. It is further submitted that during the pendency of the trial, on attaining the age of majority, the appellant and the victim got married on 06.04.2022, and the copy of the marriage photos and affidavits sworn by the appellant and the victim are annexed with this appeal as Annexure A-3. It is further submitted that the wife of the appellant(victim) was pregnant, and a child has also been born, and when the victim was pregnant she was residing in the house of the appellant with his family members, which is the finding of this Court while granting bail to the appellant vide interim order dated 23.01.2023. In the interim order dated 23.01.2023, learned counsel for the complainant has raised no objection and submitted that the appellant and the victim is residing together and their marriage was registered. Therefore, the findings of learned trial Court is totally erroneous and that has been based on the surmises and conjunctures and without finding any legal proof, the learned trial Court has held guilt of the appellant. 8. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submits that the victim was minor and below 18 years of age at 6 the time of incident, the victim’s High School Mark-sheet (Ex.P- 14) relating to her date of birth which contains the date of birth of the victim as 05.02.2004. The victim’s High School Mark-sheet (Ex.P-14) is admissible piece of evidence to determine the age of the victim. Therefore there is no illegality or infirmity in the findings of the learned trial Court. The prosecution has proved its case beyond reasonable doubt and the victim (PW-1) has clearly deposed the conduct of the appellant in her statement recorded under Section 164 CrPC and in the Court statement and the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for. 9. I have heard the learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 10. In relation to the age of the victim, the Investigating Officer of the case, Sub-Inspector Yashwant Pratap Singh (PW-11), in his inquiry regarding the victim’s age, gave evidence that on 17.08.2020 he seized the victim’s High School Mark-sheet (Ex.P- 14) as per seizure memo (Ex.P-08), in which the victim’s date of birth is recorded as 05.02.2004. The father of the victim/complainant (PW-01) also stated that the date of birth of his daughter is 05.02.2004. 11. In this regard, the prosecution has produced the evidence of the victim’s parents concerning her date of birth. The victim’s mother 7 (PW-4), in her deposition, stated that at the time of the incident the victim was a minor and further gave evidence that the Police had seized the victim’s mark sheet in her presence as per seizure memo (Ex.P-08). Likewise, in the examination-in-chief, the victim’s father (PW-01) could not state the exact date of birth of the victim. However, upon a suggestion by the prosecution, he admitted that the Police had seized the victim’s high school mark sheet as per seizure memo (Ex.P-08), in which the date of birth of the victim is mentioned as 05.02.2004. 12. So far as to prove the age of victim is concerned, the documentary evidence regarding the date of birth of the victim (PW-2) being 05.02.2004, her High School Mark-sheet (Ex.P-14) is present on record in an irrefutable manner, which there is no reason to disbelieve. The High School Mark-sheet of the victim has been seized, in which the date of birth of the victim (PW-2) has also mentioned as 05.02.2004. The alleged incident is of 17.08.2020. Hence, during this period, the age of the victim (PW- 2) is proved to be around 16-17 years of age, and the trial Court has also held in para 18 of the impugned judgment that at the time of incident, the age of the victim was more than 16 years and 6 months, and if consent was given for sexual intercourse on the date of incident, it does not amount to an offence under the POCSO Act. 8 13. In the matter of Jaya Mala v. Home Secretary, Govt. of Jammu & Kashmir and others1, the Supreme Court has held that a judicial notice can be taken that the margin of error in age ascertained by Radiological examination is two years on either side. Relevant para of the said judgment states as under:- “9. Detenu was arrested and detained on Oct. 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention. Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert, in Oct., 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheavel in the educational institutions. This young school going boy may be enthusiastic about the students’ rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this 1 AIR 1982 SC 1297 9 case the detention order was wholly unwarranted and deserved to be quashed.” 14. In the matter of Tilku Alias Tilak Singh V. The State Of Uttarakhand, reported in 2025 INSC 226, the Supreme Court has held that he victim, who is between 16 to 18 years of age is very much in the age of understanding as to what was right and wrong for her. Relevant para of the said judgment states as under:- “16. Even if the finding of the learned Single Judge of the High Court that the prosecutrix was between 16 to 18 years of age is to be accepted, in our view, the offence under Sections 363 and 366 IPC would still not be made out. 17. This Court in the case of S. Vardarajan v. State of Madras, reported in 1964 SCC OnLine SC 36 had an occasion to consider almost similar facts that arise for consideration in the present case. This Court has observed thus: “7. …..It will thus be seen that taking or enticiting away a minor out 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. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that 10 constitutes in law “taking”. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. 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. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. 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 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 11 the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. 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…….” 18. It is thus clear that the prosecutrix, who according to the learned Single Judge of the High Court, was between 16 to 18 years of age was very much in the age of understanding as to what was right and wrong for her. 19. From the evidence of the prosecutrix itself, it will be clear that she had voluntarily gone along with the appellant herein, travelled to various places and also resided as husband and wife at Dehradun.” 15. The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 366 of the IPC ? 16. Though, the doctor who conducted medical examination of the victim has concluded in her statement that there was no fresh injury or any mark of resistance was present on the body of the victim. As such, there is no corroborative evidence placed by the 12 prosecution to prove the guilt of the accused for the offence punishable under Section 366 of the IPC. 17. From the perusal of the evidence of the victim girl (PW-02), it appears that victim girl was simply accompanied the accused without being enticed or influenced. Mere accompanying a person without being induced does not constitute an offence under Section 366 of the IPC. Though, the learned Panel Lawyer vehemently contended that age of the victim girl has proved by the prosecution that she is minor as on the date of incident, nevertheless, in order to convict the accused for the offence under Section 366 of the IPC, other two essential ingredients i.e. the victim girl must be induced by the accused and she must be induced by the accused person to go from a place or to do any act with an intent that such girl may be knowing that it is likely that she will be forced or seduced to illicit intercourse by another person. As such, the prosecution has failed to prove the ingredients of offence under Section 366 of the IPC. 18. So far as the issue of forceful sexual intercourse by the appellant upon the victim is concerned, the victim (PW-02) stated in her deposition that she knew the accused. She was educated up to Class-IX. She further stated that she had known the appellant/accused who was from her native village for about three years. It was stated that their affair had been developed 13 between them and both had expressed an intention to marry each other. It was further stated that their families were aware of such relationship. The victim stated that her family members were not agreeable to the marriage with the appellant and had warned that, if his house was approached, harm might be caused. The victim further stated that the objection of her family was on account of his complexion. The victim stated that on 15th August she had told the appellant that, if he wished to take responsibility, then she should be taken along. The victim stated that on 15th August at about 04:00 AM, she went away with the appellant on a motorcycle and went to the house of his sister at Kutrabod. It was further stated that both of them remained there for about two days. During this period, no such physical intimacy took place between them. Thereafter, the parents of the victim along with the Police, arrived at Kutrabod, and both the victim and the appellant were taken to the concerned Police Outpost. 19. The father of the victim/complainant (PW-01) In his examination- in-chief, he identified the victim as his daughter and stated that on the morning of the incident at about 04:00 AM, she had gone somewhere. He further admitted that despite searching for her among nearby relatives, she could not be traced. During inquiry that information was said to have been received that the accused had allegedly taken the victim to village Kutrabod, on the pretext of marriage, upon which a written report (Ex.P-01) was given at the Police station against the accused. He further stated that on 14 the basis of his written report (Ex.P-01), the Police registered the First Information Report/FIR (Ex.P-02). 20. Similarly, regarding the incident of disappearance of the victim, the testimony of the victim’s mother (PW-08) and maternal uncle (PW-4) was presented. The mother of the victim (PW-08) deposed that on 15th August, the victim had left the house at 04:00 AM without informing anyone and, despite efforts to search for her, she could not be found, after which a report was lodged at the Police Station by the father of the victim (PW-01). The other witness, maternal uncle (PW-4), stated that the victim was his niece and that the report of her disappearance had been lodged by the victim’s father. However, this witness was declared hostile by the prosecution. When suggestions were put to him, he admitted only that on 15.08.2020 at 04:00 AM, the victim had gone somewhere and during inquiry, it was said that she was with the accused/appellant at Kutrabod. He also admitted that upon getting this information, the father of the victim had lodged a written report. 21. Thus, the evidence presented by the parents of the victim (PW-01 & PW-08) merely establishes that the victim had left the house early in the morning of 15.08.2020 without informing anyone, and despite search, she could not be found, leading to registration of a missing report. Beyond this, the father of the victim (PW-01) only claimed that during inquiry, he came to know that the accused had 15 kept the victim at Kutrabod, and on the basis of this hearsay, a report was lodged. 22. From the medical and expert evidence placed on record, it is evident that no conclusive opinion has been given with respect to the allegation of forcible intercourse. The Medical Officer, Dr. Neha Gangeshri (PW-06), in her deposition, specifically stated that upon examination of the victim no external injury or sign of resistance was found on her body. The vulva and vagina were noted to be normal, the hymen was found to be old and ruptured, and no evidence of recent forcible intercourse was present. It was further opined that the victim was habituated to sexual intercourse. Urine test for pregnancy was negative at that time, and the vaginal slides prepared and sent for laboratory examination, and were reported to contain no human spermatozoa. 23. The seized undergarments of both the victim and the appellant, along with the prepared slides, were sent for forensic analysis. As per the FSL report (Ex.P-29), spermatozoa were detected only on the appellant’s undergarment, but not on that of the victim or on the prepared slides. Therefore, the medical and scientific evidence, when read as a whole, does not corroborate the allegation of forcible sexual intercourse against the appellant. 24. Furthermore, during the pendency of the trial, the victim attained the age of majority, and thereafter, on 06.04.2022, the appellant 16 and the victim voluntarily entered into a legally valid marriage with the appellant. Photographs of the marriage ceremony and affidavits sworn by both parties evidencing the said marriage have been annexed with this appeal as Annexure A-3. It is an admitted fact on record that the victim, after marriage, was residing in the matrimonial home of the appellant along with his family members. This fact has also been taken note by this Court while granting bail to the appellant vide interim order dated 23.01.2023. 25. In the said order dated 23.01.2023, it has also been recorded that Mr. S.P. Sannat, learned counsel for the complainant raised no objection to the bail and further submitted that the appellant and the victim are residing together as husband and wife and that their marriage stands duly registered. It is further undisputed that from the said wedlock, a child has been born, and both the appellant and the victim are presently living together peacefully as a married couple. 26. From the testimonies, it is established that the victim and the accused were in contact prior to the incident and had developed familiarity. The victim admitted to befriending the accused, and the medical evidence indicates that she was habituated to sexual intercourse and did not bear any injuries. The absence of internal and external injuries and the prolonged stay of the victim with the accused at the house of sister of the appellant without any escape attempt or alarm raised during those two days may suggest 17 elements of voluntary companionship rather than abduction by force. 27. However, the prosecution’s case rests on the victim’s allegations of threats and coercion, while the defence argues that the relationship was consensual, and the victim accompanied the accused willingly. This aspect of consent versus coercion becomes central to determining the culpability of the accused in the present matter. 28. 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, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 29. Applying the principle of law laid down by the Supreme Court in the above-stated judgment (supra) to the facts of the present case and considering the opinion of Medical Officer (PW-6) and the FSL report (Ex.P-29) coupled with the testimony of the victim herself creates a serious lacuna in the prosecution story, the benefit of which should be granted to the appellant. 18 30. Considering the entire evidence available on record and the conduct of the victim, I am of the opinion that the victim and the accused were in contact prior to the incident and had developed familiarity. The victim admitted to befriending the accused, and the medical evidence indicates that she was habituated to sexual intercourse and did not bear any recent injuries. The absence of medical or forensic proof of forcible intercourse, the clear evidence of a consensual relationship between the victim and the appellant, their subsequent lawful marriage, and the birth of a child from the said wedlock, furthermore even as per the High School Mark-sheet (Ex.P-14), the victim is more than 16 years of age and is very much in the age of undertaking what was right and wrong for her, she eloped with the appellant on her own will, and it cannot be a case of enticing or taking away, and moreover she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, offence under Sections 363 and 366 of the IPC and Section 4 of the POCSO Act would not be made out against the appellant. 31. For the foregoing reasons, the criminal appeal is allowed and the impugned judgment and conviction and order of sentence dated 17.11.2022 is set aside. The appellant stands acquitted from all the charges. The appellant is on bail. He is not required to surrender. His bail bonds are cancelled and sureties stands discharged. 19 32. In view of the foregoing, the warrant of arrest earlier issued against the accused stands hereby cancelled. 33. Keeping in view of the provisions of Section 437-A CrPC (now Section 481 of BNSS), the appellant is directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon’ble Supreme Court. 34. Registry is directed to send a copy of this judgment and transmit the original records to the trial Court concerned for necessary information and compliance, forthwith. Sd/- (Ramesh Sinha) Chief Justice Rajshekhar