1 2025:CGHC:51807 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR RESERVED ON 7-10-2025 DELIVERED ON 17-10-2025 CRA No. 908 of 2022 Lokesh Kumar Banjare S/o Late Kedar Banjare Aged About 21 Years R/o Bhathagaon, Post Batang, Tahsil Patan, Police Station Amleshwar, District : Durg, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Kotwali, Raipur, District : Raipur, Chhattisgarh ... Respondent {Cause title, as taken from Cause Information System} For Appellant : Mr. Shashi Kumar Kushwah, Advocate For Respondent/State : Ms. Anuradha Jain, Panel Lawyer (Hon’ble Mr. Naresh Kumar Chandravanshi, J) CAV JUDGMENT 1. This criminal appeal has been preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (henceforth, Cr.P.C.) challenging judgment of conviction and order of sentence dated 6-10-2021 passed by Additional Sessions Judge, First Fast Track Court, Raipur (CG) (henceforth, referred to as ‘Fast Tract Court’) in Special Criminal Case Digitally signed by AVANISH KUMAR PATHAK Date: 2025.10.17 17:00:31 +0530 2 No. 105/2016, whereby the learned Addl. Sessions Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:- No. Conviction under Section Jail Sentence Fine Sentence & default stipulation 01. 363, IPC RI for 02 years Rs. 500/-, 15 days’ RI 02. 366, IPC RI for 03years Rs. 1,000/-, 1 months’ RI 03. 376(2)(n), IPC RI for 10 years Rs.5,000/-, 3 months’ RI. All the sentences were directed to run concurrently. The appellant has also been convicted for offence under Section 6 of Protection of Children From Sexual Offences Act (henceforth referred to as ‘POCSO Act’), but he has not been sentenced separately for the same in view of provision of Section 42 of the POCSO Act, as he has already been sentenced for the similar offence under Section 376(2)(n) of the IPC. 2. Case of the prosecution, in brief, is that, father of minor victim lodged report at PS Kotwali, Raipur to the effect that on 1-10-2015, his minor daughter/victim had gone to college but she did not return in evening. Despite search, they could not trace her. Based on aforesaid fact, FIR (Ex. P-9) was lodged by the Police under Section 363 of the IPC against an unknown person on 2-10-2015. On 29-3-2016, minor victim was recovered from the house of appellant/accused at village Bhatagaon. Statement of victim/prosecutrix under Section 164 of the Cr.P.C. was got recorded from concerned Judicial Magistrate in which, 3 she revealed that, the appellant contacted her through her friend and on being asked by him, she went to Patan in a bus, where she met appellant/accused. Thereafter, he took her to Rajnandgaon by covering her face through a scarf. Next day, he took her to village Jhadikheri where he kept her in a rented house. She further revealed that, at aforesaid village, they resided for about 5 months, there the appellant/accused used to make forcible physical relation with her on pretext of marriage. Thereafter, appellant/accused took her at Dongargarh Court where they performed marriage by executing document from Notary. Thereafter, the appellant/accused took her to his village Bhatagaon, District Durg. There also, they performed marriage. In between, the appellant sexually exploited her forcefully. The victim was medically examined by Dr. P. Maheshwari (P.W. 4), in which, vide MLC report Ex. P-10 (repeat number), she reported that no injury was found on her person and she was habitual to sexual intercourse, therefore, she opined that no symptom on her body was found to be reported that, forceful sexual intercourse has been committed with her. Therefore, she prepared two vaginal slides of the victim and handed over the same to the concerned Constable. Medical examination of appellant was also conducted. Vaginal slides of the victim was seized vide seizure memo (Ex. P-13). Her panty was seized vide seizure memo (Ex. P-5). Medical examination of the appellant was also conducted, which is reported to be positive. Underwear of the appellant was also seized from him vide Ex. P-12. True copy of mark sheet of Class 10th of the victim and her original birth certificate were seized vide Seizure memo (Ex. P-10, repeat 4 number). Vaginal slides of the victim and underwear/ panties of the victim as well as appellant were sent for medical examination, vide Ex. P-21, it was reported by the FSL that semen stains and human spermatozoa have been found on panty (Article ‘A’) of the victim and her vaginal slides (Article ‘B’). Statements of witnesses were recorded. Appellant was arrested. After completion of investigation, a charge sheet under Sections 363, 366, 376 of the IPC and Section 34 of the POCSO Act was filed against appellant before the Fast Track Court, Raipur. 3. Learned Fast Track Court, Raipur framed charges under Sections 363, 366, 376(2)(n) of the IPC and Section 6 of the POCSO Act against the appellant/accused. Appellant abjured the guilt and entered into trial. 4. So as to hold guilty the appellant, the prosecution has examined as many as 7 witnesses and exhibited 21 documents along with two Articles- Article A-C and Article B-C. Statement of appellant/accused under Section 313 of the Cr.P.C. was recorded, in which he denied the incriminating circumstances appearing against him in prosecution’s evidence, claiming his innocence and false implication. He has further pleaded that he had neither allured the victim nor pressurized her, rather she herself accompanied him with her own will. He has not examined any witness in his defence. 5. Learned counsel for the appellant/accused would submit that, the appellant and the victim are residents of same place and neighbour also. They fell in love. At the time of incident, victim was studying in college. She was not minor, rather she had attained the age of majority at the time of incident. She had accompanied the appellant and resided 5 along with him for about 6 months at various places. She made physical relation with her free will and consent, as both of them were in love. In long period of six months, neither the victim complained against the appellant to anyone nor tried to leave his company, rather she was taken by the Police from the house of the appellant under the pressure of family members of the victim. Learned counsel further submits that, since the victim was an adult at the time of incident and she resided with the appellant for long period of six months without any complaint and also made physical relation with him with free will and consent, but under the pressure of family member, she left him and stated against him, but learned Fast Track Court without considering aforesaid fact and only considering the evidence of prosecutrix superficially, has held guilty the appellant and convicted him, which is perverse and illegal. Hence, he prayed that, the appeal may be allowed and the appellant may be acquitted of all the charges. 6. Per contra, learned Panel Lawyer, appearing for the respondent/State supports the impugned judgment. 7. I have heard learned counsel for the parties, considered their rival submissions and also went through the record of the trial Court with utmost circumspection. 8. First of all, the question which arises for consideration is as to whether, the finding recorded by the Fast Track Court that the victim was minor on the date of incident, is sustainable or not ? In this regard, the victim (P.W. 2) has stated in her deposition that, her date of birth is 22-2-1998 and her age was 17 years at the time of incident. This fact has also been supported by her father (P.W. 3). P.W. 3 has stated in his cross- 6 examination para 7 that, the victim had been got admitted in Class 1 in Thakur Pyarelal School at the age of 4 years. Undisputedly, at the time of incident i.e. on 1-10-2015, the victim was studying in college (seems to be 1st year). As per deposition of Sub Inspector Dilip Sahu (P.W. 5), he has seized progress report of Class 10th of the victim and original birth certificate from her father vide seizure memo (Ex. P-10), which also gets support from her father (P.W. 3). Article B-C is photocopy of alleged mark sheet of Class 10th of the victim, but it has not been proved from its original. Dilip Sahu (P.W. 5) and father of the victim (P.W. 3) have also not stated that original mark sheet of Class 10th of the victim was seized, therefore, in absence of filing / proving original mark sheet of Class 10th of the victim, alleged mark sheet of the victim (Article B-C) cannot be held to be proved in the eye of law. 9. Dilip Sahu (P.W. 5) has stated in his deposition that, he has seized original birth certificate of the victim vide seizure memo (Ex. P-10). This fact has also been mentioned in seizure memo (Ex. P-10), but it has not been stated by the Investigating Officer Dilip Sahu (P.W. 5) that after seizure of original birth certificate of the victim, he had handed over the same to father of the victim. Supurdnama with regard to such handing over the original birth certificate to father of victim or her other relative has also not been filed. Though, father of victim (P.W. 3) has stated in his deposition para 5 that Article A is birth certificate of the victim and true copy of the same is Article A-C. After completion of his deposition, note has also been appended in deposition that, the birth certificate was returned to the witness, but nowhere it is shown in his deposition that either in examination-in-chief or in cross-examination 7 or the note appended in his deposition sheet that while recording of his deposition, he had brought original birth certificate of the victim. He has also not stated in his deposition that, when original birth certificate of victim was seized vide seizure memo (Ex. P-10), then how it was reached to him. Thus, in absence of specific evidence as to whether true copy of birth certificate of the victim (Article A-C) has been proved by producing original birth certificate, is not established, therefore, it also cannot be held that, true copy of birth certificate (Article A-C) has been proved in accordance with law. 10. Though, in true copy of the birth certificate (Article A-C) and alleged true copy of Mark sheet of victim (Article B-C), her date of birth has been mentioned as 22-2-1998, but since those documents have not been proved by the prosecution in accordance with law, therefore the date of birth mentioned as 22-2-1998 in aforesaid cannot be relied upon, as it is settled law that a fact in issue can be proved by producing primary evidence. Hon’ble Supreme Court in the case of H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 : (2011) 2 SCC (Civ) 209 : 2011 SCC OnLine SC 437, has held in para 12 as under :- “12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or 8 other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907] .) 11. Hon’ble Supreme Court in the case of Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, [(2024) 6 SCC 130] has held in para 36 as under :- “36. The said sale deed dated 17-9-1994 in original has not been produced in evidence. It was only the photocopy of the same which was brought on record. The photocopy of a document is inadmissible in evidence. ……….” 12. As per deposition of father of victim (P.W. 3), the victim was got admitted in Class 1 at the age of 4 years. This fact is not found to be reliable as prior to the year 2020, the National Education Policy (NEP), the age for admission in Class 1st in MP was around 5 years. Though there was no uniform rule for Class 1st admission in State laws and school practices allowed children to be admitted at the age of 5 years or at the age of 4.5 years. Age of four years of the child were treated as 9 tender age as at that age, physical and mental development of child were not being treated to get him/her admitted in school. However, as of now, there is uniform National Rule called ‘the National Education Police, 2000’, which mandates a minimum age of six years for Class 1st entry in nationwide. Having considered aforesaid fact and even falling marginal age of majority of victim i.e. 17 years, 7 months and 9 days treating her date of birth to be 22-8-1998, it cannot be held proved beyond reasonable doubt that, the victim had not attained the age of majority on the date of incident. But learned Fast Track Court without appreciating aforesaid fact, only taking face value of photo copy documents, which have not been proved in accordance with law, held the victim minor, which is found to be perverse and illegal and the same is not sustainable. 13. So far as kidnapping and sexual exploitation of the victim is concerned, the victim (P.W. 2) has deposed in her deposition that the appellant/accused contacted her through her friend and on being asked by the appellant, she went to Patan in a bus from where, she met with the appellant and from there she went with him in a motorcycle by covering her face through a scarf, thereafter she resided at various places with him. She has admitted in her cross-examination para 16 that, they had executed affidavit before the Notary of Dongargarh that they have performed marriage in Temple as they were in love. The victim resided with the appellant from her elopment on 1-10-2015 till her recovery on 29-3-2016 i.e. for more than 6 month. Though she has stated in her deposition that, when she was residing with the appellant, 10 then he made physical relation with her forcefully. She has also stated that, she had joined company of appellant on being harassed by him, but this statement of the victim is not found to be trustworthy, as if the appellant would have taken her under pressure or allurement or without her consent and wish, then she could have tried to escape from him or she could have made complaint to any person or even she could have made complaint to the Police, but she never did any act like this, rather she went various places with the appellant and resided with him. Therefore, statement of the victim that, the appellant took her under pressure or allurement, does not inspire confidence of this Court. Rather, not raising any alarm or not making any effort by the victim to get herself free from the company of appellant and her own admission in para 16 of her cross-examination shows that she joined the company of the appellant as they were in love, therefore she peacefully resided with him at various places and also made physical relation with the appellant with her free will and consent. Prosecution has failed to prove beyond reasonable doubt the fact that, the victim was minor on the date of incident and it is not found from the evidence of victim (PW 2) and from the deposition of other witnesses along with father of the victim (P.W. 3), who is hearsay witness that, the appellant had abducted the victim and sexually exploited her without her free will and consent. Though the FSL report is positive i.e. in favour of the prosecution, but having considered the aforesaid fact that, the report has no importance to prove the charge leveled against the appellant, as the prosecution has failed to prove that, the victim was minor on the date of incident and she herself accompanied the appellant and indulged in relation with 11 him with her free will and consent without any objection or making complaint to anyone in this regard. Despite that, learned Fast Track Court, without considering aforesaid evidence in its actual sense reveals from overall fact situation of the evidence of the victim/prosecutrix herself, held the appellant guilty for the offence under Sections 363, 366, 376(2)(n) of the IPC and Section 6 of the POCSO Act, which is found to be perverse to the evidence available on record and illegal. Hence, the same is not sustainable. In view of above, I feel inclined to allow instant appeal. 14. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant/accused by the impugned judgment under Sections 363, 366, 376(2)(n) of the IPC and Section 6 of the POCSO are set aside and he is acquitted of all the charges. The appellant/accused is reported to be on bail. He needs not surrender. The bail bonds furnished by the appellant/accused shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 15. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith. Sd/- (Naresh Kumar Chandravanshi) Judge Pathak