1 2025:CGHC:52570 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1398 of 2023 Mahesh Kashyap S/o Late Budhruram Kashyap Aged About 19 Years R/o- Village- Dabpal, P.S. -Lohandiguda, District : Bastar(Jagdalpur), Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through- Police Station- Bhanpuri, District : Bastar(Jagdalpur), Chhattisgarh ... Respondent(s) For Appellant(s) : Ms. Savita Tiwari, Advocate. For Respondent(s) : Mr. Jitendra Shrivastava, Govt. Advocate. Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 28/10/2025 1. Though, today the present appeal has been listed for hearing on I.A. No.2 of 2023, which is an application for suspension of sentence and grant of bail, however with the consent of learned counsel for the parties and considering the period of detention of the appellant, the appeal is heard 9nally. 2. Accordingly, I.A. No.02 of 2023 stands disposed of. 3. This appeal is directed against the judgment of conviction and order of sentence dated 29.04.2023 passed by learned Additional Sessions Judge, F.T.S.C./(Under Pocso Act), District Bastar, Place- Jagdalpur (C.G.) in Special Sessions Case No.16/2022, KUNAL DEWANGAN Digitally signed by KUNAL DEWANGAN 2 whereby the trial Court after holding the appellant guilty for the o>ence punishable under Section 376(2)(n) of the Indian Penal Code sentenced him to undergo rigorous imprisonment for 10 years and to pay a 9ne of Rs.2000/-, in default of payment of 9ne to further undergo rigorous imprisonment for 1 year. 4. The prosecution case, in brief, is that the victim was studying in Class 12th and her date of birth is 02.04.2004. On 27.12.2021, she left her home without informing her family members and went away with the accused Mahesh. Upon knowing this, the complainant and his family members went to the house of the accused on 28.12.2021 and brought the victim back home. Thereafter, the victim was living normally with her family. On the night of 14.01.2022, after dinner, all family members went to sleep, including the victim. Around 12:00 midnight, the victim told her grandfather that she was having stomach pain and wanted to go outside for toilet and asked him to unlock the door. As soon as her grandfather opened the lock, the victim went out of the house and did not return. The complainant and his family members made extensive searches for her in the neighborhood, among relatives, and acquaintances, but she could not be found. The complainant suspected that the accused had enticed and taken away his minor daughter, aged about 17 years, against her will. Based on his report, Crime No. 10/2022 was registered at Police Station Bhanpuri on 15.01.2022 for o>ence punishable under Section 363 of the IPC, and investigation was set in motion. 3 5. During investigation, on 20.01.2022, the victim was recovered from the custody of the accused. During interrogation, the victim stated that she had been in a love relationship with the accused for about one year. On 14.01.2022, the accused called her to meet him, and when she went to meet him at night, he enticed her and forcibly took her with him by bus to Village Harnal, Karnataka. There, the accused kept her with him till the morning of 20.01.2022, during which period he repeatedly committed sexual intercourse with her under the pretext of marriage. The statements of the victim and witnesses were recorded. The medical examination of the victim was conducted. A spot map of the place of occurrence was prepared. The relevant articles and properties connected with the o>ence were seized and sent for forensic examination. The accused was arrested, and during investigation, Sections 366 and 376 of the IPC and Section 6 of the POCSO Act were added. After completion of investigation, charge-sheet was 9led before the competent Court. 6. On 08.04.2022, charges were framed and read over to the accused, to which he pleaded not guilty and claimed to be tried. The statement of the accused under Section 313 of the Cr.P.C. was recorded on 28.01.2023, wherein he denied the allegations and stated that he has been falsely implicated in the case. The accused did not adduce any evidence in his defence. His main defence is that he has not committed the alleged o>ence. To prove the charges against the accused, the prosecution recorded the statements of a total of 10 prosecution witnesses and a total of 33 documents have been marked as exhibits. 4 7. When the statement of the accused was taken under Section 313 of the Cr.P.C., he expressed his desire to give evidence in his defence, declaring himself innocent. But no defence evidence was presented on behalf of the accused. 8. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 3 of the judgment. Hence, this appeal. 9. Ms. Savita Tiwari, learned counsel for the appellant, submits that the impugned judgment dated 29.04.2023 is perverse, erroneous, contrary to law, and unsustainable in the facts and circumstances of the case, and therefore, liable to be set aside. It is submitted that the learned trial Court failed to appreciate the material evidence available on record. The victim herself has categorically stated that she had been acquainted with the appellant for the last one year and that both were in a love relationship. She further stated that she voluntarily eloped with the appellant, and both went to Chitrakoot, where physical relations were established with her consent. Thereafter, both proceeded to Karnataka, from where she was recovered. The medical evidence also does not support the prosecution version. The MLC and FSL reports are negative, and the doctor has not found any external or internal injury on the body of the victim. These medical 9ndings clearly negate the allegation of forcible sexual intercourse. It is further submitted that the victim was major at the time of the alleged incident, and the relationship between her and the appellant was purely consensual. The learned trial Court failed to appreciate that it was a case of mutual a>ection 5 and voluntary companionship, not of coercion or assault. There is also an inordinate and unexplained delay in lodging the FIR, which creates serious doubt on the genuineness of the prosecution story. Moreover, there are material contradictions and omissions between the statements recorded under Section 161 Cr.P.C. and the depositions made before the Court, which render the prosecution evidence unreliable and insuDcient to sustain conviction. It is further contended that the prosecution has not adduced any credible or cogent evidence to prove the guilt of the appellant beyond reasonable doubt. The 9ndings recorded by the learned trial Court are therefore baseless, perverse, and contrary to the evidence available on record. In view of the above submissions, it is humbly prayed that the impugned judgment of conviction and order of sentence be quashed and set aside, and the appellant be acquitted of the charges levelled against him. 10. On the other hand, learned State Counsel appearing for the respondent/State support the impugned judgment and submits that the trial Court has rightly convicted and sentenced the appellant for offence punishable under Section 376(2)(n) of the IPC. As such, the criminal appeal deserves to be dismissed. 11. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 12. So far as the age of the victim is concerned on careful perusal of the evidence adduced by the prosecution, it appears that the entire case hinges upon the age of the victim and the voluntariness of her 6 conduct. The school admission register (Ex. P-12 C) shows her date of birth as 02.04.2004, however, the said document has not been proved in accordance with law. The author of the said register (PW-5) himself admitted that the entry was made on the basis of information supplied by the guardian and that no supporting birth certi9cate or municipal record was veri9ed at the time of admission. It is well-settled that such an entry, being hearsay in nature, cannot be treated as conclusive proof of age. 13. In the present case, except the said school record, no other contemporaneous document, such as hospital record or municipal birth certi9cate of the year 2004, has been produced. Even the father of the victim (PW-2) admitted in cross-examination that he did not personally get the date of birth registered with any authority and that the entry in the school register was made on his oral statement. The grandfather (PW-4) further admitted that the victim was “around 17 years” and “might have not completed 17 years,” which itself shows uncertainty regarding the age. In such circumstances, the bene9t of doubt as to the minority of the victim must necessarily ensure to the appellant. 14. Now coming to the question as to whether the accused committed rape upon the victim by having sexual intercourse with her more than ones against her will and without her consent? 15. In this regard, the victim (PW-1) deposed in her statement that she knows the accused. Her date of birth is 02.04.2004, and the incident took place in the year 2022. She deposed that the accused forcibly took her with him to Chitrakoot, compelled her to have 7 sexual intercourse and thereafter left her near her school. Out of fear, she did not disclose the incident to her parents. After about one month, the accused again forcibly took her to Karnataka by threatening to commit suicide and implicate her if she refused. In Karnataka, she was kept in a hut in a sugarcane 9eld for two to three days, after which her parents, along with the police, recovered her, and the accused was taken into custody. Her statement was recorded by the police, she identi9ed her signatures on the recovery memo, consent form, medical documents, and seizure memo relating to her clothes. She also stated that she was medically examined and counseled by the Child Welfare Committee, and her statement had earlier been recorded before the Magistrate. In her cross-examination, she admitted that on the night of 14.01.2022, the accused enticed her, took her to Karnataka, and forcibly committed sexual intercourse with her several times till 20.01.2022 on the false pretext of marriage. She further aDrmed that she was a minor at the time of the incident and the accused was aware of her age. 16. During cross-examination, the victim admitted that she had known the accused for about two years through a WhatsApp group and that they used to exchange a>ectionate messages, including saying “I love you” to each other. She admitted sharing her address with him and stated that she had seen his photo. She denied voluntarily going with him and reiterated that he forcibly abducted her from near her house at night. She also stated that she did not raise an alarm on the bus due to threats and strangulation attempts by the 8 accused. She further stated that the accused used to threaten her over phone earlier as well and that she did not inform her parents due to fear and emotional attachment. She admitted that she accompanied him earlier to certain places but maintained that the accused had forced and threatened her. She stated that the accused kept her in a house in Davpal where several persons resided and that her father later traced her and brought her home. 17. From the cross-examination of the victim, it emerges that she had been in continuous contact with the accused for nearly two years prior to the incident and they frequently exchanged a>ectionate messages, including “I love you”. She admitted that she voluntarily shared her address with the accused and had accompanied him on earlier occasions without raising any objection or informing her family. She further admitted that she travelled with the accused by bus and did not raise an alarm during the journey. Her testimony also discloses that due to emotional attachment, she did not disclose their interactions to her parents. These circumstances, coupled with her earlier visits with the accused, tend to indicate a consensual relationship between the parties and create doubt regarding the allegation of forcible inducement or coercion. The conduct of the victim, as reJected from her own statements, therefore assumes signi9cance while appreciating the defence plea that the relationship was consensual. 18. The statement of the victim (PW-1) clearly reveals that she was in love with the appellant for about two year prior to the incident and that she voluntarily accompanied him to di>erent places. Though 9 she subsequently deposed that the appellant had established physical relationship with her under the pretext of marriage, the medical report (MLC) and the Forensic Report (FSL) does not reveal any external or internal injury on her person suggestive of forcible sexual intercourse. The absence of injuries, coupled with the admitted fact that the victim was staying with the appellant for several days without raising any alarm, further strengthen the defence version that the relationship was consensual. 19. In Alamelu and Another v. State, represented by Inspector of Police, {(2011) 2 SCC 385, where the facts and circumstances were similar to that of this case, the Supreme Court observed as under: “51. This Court in Rameshwar v. State of Rajasthan {AIR 1952 SC 54} declared that corroboration is not the sine qua non for a conviction in a rape case. In the aforesaid case, Vivian Bose, J. speaking for the Court observed as follows:- "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, ... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand." 52. The aforesaid proposition of law has been reiterated by this Court in numerous judgments subsequently. These observations leave no manner of doubt that a conviction can be recorded on the sole, uncorroborated testimony of a victim provided it does not su1er from any basic in2rmities or improbabilities which render it unworthy of credence. 10 xxx xxx xxx 54. Even PW5, Thiru Thirunavukarasu stated that Sekar (A1) had brought the girl with him to his house and told him that he had married her. They had come to see Trichy and requested a house to stay. This witness categorically stated that he thought that they were newly married couple. He had made them stay in Door No. 86 of the Police Colony, which was under his responsibility. On 10th August, 1993, the police inspector, who arrived there at 10.00 p.m. told this witness that Sekar (A1) had married the girl by threatening her and "spoiled her". The girl, according to the prosecution, was recovered from the aforesaid premises. Therefore, for six days, this girl was staying with Sekar (A1). She did not raise any protest. She did not even complain to this witness or any other residents in the locality. Her behavior of not complaining to anybody at any of the stages after being allegedly abducted would be wholly unnatural. 55. Earlier also, she had many opportunities to complain or to run away, but she made no such e1ort. It is noteworthy that she made no protest on seeing some known persons near the car, after her alleged abduction. She did not make any complaint at the residence of Selvi, sister of Sekar (A1) at Pudupatti. Again, there was no complaint on seeing her relatives allegedly assembled at the temple. Her relatives apparently took no steps at the time when mangalsutra was forcibly tied around her neck by Sekar (A1). No one sent for police help even though a car was available. She made no complaint when she was taken to the house of PW5, Thiru Thirunavukarasu and stayed at his place. Again, there was no protest when Sekar (A1) took her to the police station on 5th day of the alleged abduction and told at the Tiruchi Police Station that they had already been married. The above behaviour would not be natural for a girl who had been compelled to marry and subjected to illicit sexual intercourse. 56. In view of the aforesaid, we are of the considered opinion that the prosecution has failed to prove beyond 11 reasonable doubt any of the o1ences with which the appellants had been charged. It appears that the entire prosecution story has been concocted for reasons best known to the prosecution.” 20. In light of the above settled legal position, when the prosecution has failed to prove the minority of the victim beyond reasonable doubt and the evidence on record unmistakably suggests that the relationship was consensual, the conviction of the appellant under Section 376(2)(n) IPC cannot be sustained. The trial Court, in his considered opinion, has misread the evidence and ignored the material contradictions and in9rmities in the prosecution case. Its 9ndings, therefore, su>er from perversity and are liable to be set aside. 21. Accordingly, the criminal appeal deserves to be allowed and is hereby allowed. 22. The judgment of conviction and order of sentence dated 29.04.2023 passed by the learned Additional Sessions Judge, F.T.S.C. (POCSO), District Bastar, Place Jagdalpur in Special Sessions Case No. 16/2022, convicting and sentencing the appellant under Section 376(2)(n) IPC, are hereby set aside. 23. The appellant – Mahesh Kashyap, S/o Late Budhruram Kashyap – is acquitted of aforementioned charges levelled against him. He be released forthwith, if not required in any other case. 24. 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 12 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. 25. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- (Ramesh Sinha) CHIEF JUSTICE Kunal