1 CRA No.627 of 2025 2025:CGHC:42363-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 627 of 2025 Suresh Markam S/o Dayaram Markam Aged About 20 Years R/o. Village Munmuna, Police Station- Kukdur, District- Kabirdham Chhattisgarh ... Appellant versus State of Chhattisgarh Through Police Station- Taregaon Forest, District- Kabirdham, Chhattisgarh Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Pankaj Singh, Advocate For Respondent/State : Mr. Malay Jain, Panel Lawyer Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per, Bibhu Datta Guru, Judge 21/08/2025 Heard. 1. This criminal appeal preferred under Section 415(2) of the BNSS is against impugned judgment of conviction and order of sentence dated 08/07/2022 passed in Sessions Case No.117/2019 by the learned Additional District and Sessions Judge FTSC (POCSO), District Kabirdham (C.G.), whereby the AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.08.23 11:54:43 +0530 2 CRA No.627 of 2025 appellant has been convicted and sentenced as under: Conviction Sentence Penalty in default of payment of fine Section 4 of the POCSO Based on the provisions of alternative punishment in Section 42 of the POCSO Act, punishment under Section 376 of the IPC is as follows; Based on the provisions of alternative punishment in Section 42 of the POCSO Act, punishment under Section 376 of the IPC is as follows; Section 376 of the IPC Imprisonment for life and fine of Rs.500/- 2 months R.I. Section 363 of the IPC Three years R.I. and fine of Rs.500/- 2 months R.I. Section 366 of the IPC Three years R.I. and fine of Rs.500/- 2 months R.I. All the sentences are directed to run concurrently. 2. Case of the prosecution in brief is that on 26.09.2019, PW-2, father of the victim lodged an oral report at Taregaon Jungle Police Station, stating that on 23.09.2019 at around 10:00 PM, his minor daughter had left home without informing anyone, and despite all efforts, she was not found. Based on this information, a missing person report was registered vide Ex.P-10. During investigation, victim was recovered and recovery panchnama was prepared vide Ex.P-3. Thereafter, on the basis of statement of victim, the appellant was arrested vide Ex.P/15. Spot map was prepared vide Ex.P-5. Medical examination of victim was conducted vide Ex.P-6. Undergarments of victim and 3 CRA No.627 of 2025 appellant were seized and sent for chemical examination to FSL. After due investigation, charge-sheet was filed before the concerned Court. 3. In order to bring home the offence, the prosecution has examined 15 witnesses in its support and exhibited 21 documents. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 4. The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 5. Learned counsel for the appellant would submit that the learned trial Court has failed to consider the testimonies of PW-1 victim who specifically stated in her testimony that she had gone with the appellant at various places. He submits that according the radiologist’s report, age of the victim was 15-16 years at the time of incident. From the statement of PW-6, the victim was going with the appellant in bicycle and was not screaming or shouting at that time. Learned counsel further submits that the victim is a consenting party as she herself had gone with the appellant without informing her parents and used to talk in mobile with the appellant. Learned counsel submits that the entire incident is highly doubtful, therefore, the conviction of the 4 CRA No.627 of 2025 appellant is not sustainable and he may be acquitted of the charges framed against him. 6. On the other hand, learned State counsel appearing for the respondent/State would support the impugned judgment and submits that the prosecution has proved its case beyond reasonable doubt that the victim was minor on the date of commission of offence and the trial Court has rightly convicted and sentenced the appellant, as such, the criminal appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 8. The first and foremost question arose for the consideration would be whether the victim was minor and less than 18 years of age on the date of incident or not. 9. In the instant case, the prosecution has not produced any documents or copy of the victim’s school admission register, birth certificate, Kotwari register, or mark sheets of any class. Furthermore, the statement of Dr. Manoj Kumar PW-15 has been recorded, who was posted as a radiologist at Dr. Bhimrao Memorial Hospital, Raipur and submitted a X-ray report vide Ex.P-21, in his examination-in-chief, he stated that the victim was brought before him for age determination. He further stated 5 CRA No.627 of 2025 that upon examining the X-ray plate of the victim, he found that the olecranon process was fused with the ulna, but the head of the humerus was not fused with the shaft of the humerus. Based on this, he assessed the victim’s age to be between 15 and 16 years. 10. PW-2 and PW-3, who are the father and mother of victim, also not disclosed the exact date of birth of her daughter/victim in their statement. 11. 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 1 AIR 1982 SC 1297 6 CRA No.627 of 2025 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 case the detention order was wholly unwarranted and deserved to be quashed.” 12. In Alamelu & Another (supra), 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:- 52. "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 7 CRA No.627 of 2025 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." 53. 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 suffer from any basic infirmities or improbabilities which render it unworthy of credence. 54. 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. 8 CRA No.627 of 2025 55. Earlier also, she had many opportunities to complain or to run away, but she made no such effort. 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 reasonable doubt any of the offences with which the appellants had been charged. It appears that the entire prosecution story has been concocted for reasons best known to the prosecution.” 13. Very recently 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 9 CRA No.627 of 2025 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 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 10 CRA No.627 of 2025 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 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 11 CRA No.627 of 2025 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.” 14. Reverting to the facts of the present case, the parents of victim have not disclosed the exact date of birth of the victim and the prosecution has not produced any document i.e. birth certificate, dakhil-kharij register, mark-sheets etc to prove the age of victim beyond reasonable doubt. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor. 15. The next question for consideration would be whether the appellant has committed the said offence? 16. PW-1 victim stated in her evidence that the incident took place in the year 2019. The appellant used to talk with her over the phone. On the date of incident, the appellant called her on 12 CRA No.627 of 2025 phone and asked to come on the road. When she went there, he told her that he would marry her and then the appellant took her on a bicycle to village Khadoda. She further stated that she did not know where the appellant took her by train. The appellant took her to village Khadoda and forcibly committed sexual intercourse with her twice. Afterwards, he brought her back and left at Pracharahi. From there, she returned to home. In para-3, she stated that the appellant had called her on mobile phone and introduced himself as “Suresh.” Thereafter, she talked with the appellant for one month through mobile phone. She further stated that the appellant came to her village and called outside her house. He told her that he would marry her and make her his wife and on the pretext of marriage, he committed sexual intercourse with her without her consent. 17. PW-6, Neelkamal, cousin of the appellant, stated in his evidence that in the evening, the appellant told him to go Baijalpur market. From there, the appellant went somewhere and after a while, he returned along with a girl. Thereafter, he along with the appellant and girl/victim came to Khadoda on the same bicycle. 18. PW-7, Neelam, friend of victim stated in her evidence that when the police questioned the victim, she stated that on Monday, after returning home from Baijalpur market, Suresh of village Munmuna forcibly made her sit on a bicycle, saying ‘I will marry you,’ and took her to Kharaudahkhurd. The victim told the police 13 CRA No.627 of 2025 that the accused took her to Kharaudahkhurd and forcibly committed sexual intercourse with her. The victim also told the police that three days prior to the incident, the appellant had come to village Komo, near her house under a mahua tree, and said, ‘I will marry you and keep you as my wife,’ and forcibly committed sexual intercourse with her. 19. As per the FSL report, sperm was found in the slide, undergarments of appellant and victim. In the medical examination report of victim, which was conducted by Dr. Sushila Kindo PW-9, in which, she stated that the hymen of victim was found torn, however, one finger could not be admitted into her private part. The vulva of the victim was found normal, and no internal or external injuries were detected on her body. 20. From the aforesaid evidence led by the prosecution, it is clear from the statement of victim (PW-1) that she knew the appellant and he used to talk over mobile since long time. She had gone with the appellant at various places through bicycle and by train. In her statement, she stated that the appellant wanted to marry her. PW-6, who is the cousin of the appellant stated that in front of him, the appellant took the victim in bicycle. Before the present incident, the victim used to talk with the appellant and had gone along with him and made physical relation twice with her, but victim did not disclose anything in this regard. It is to be 14 CRA No.627 of 2025 noticed that during the whole incident, the victim has not made any complaint to anyone and has not raised any alarm for a long considerable period. Had she been forcefully raped against her will or consent, she would definitely raised alarm or to make complaint to the anyone. According to the radiologist report, the age of victim was 15-16 years at the time of incident. Apart from that, there is no proof of exact date of birth of victim. 21. 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 leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 22. For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant and the appellant is entitled for benefit of doubt. 23. In the result, the appeal is Allowed. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail. He be released forthwith if not required in any other case. 15 CRA No.627 of 2025 24. Keeping in view the provisions of Section 437-A Cr.P.C., the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with 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 thereof shall appear before the Hon’ble Supreme Court. 25. The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. SD/- SD/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Amardeep