1 CRA No. 826 of 2016 2025:CGHC:58700 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 826 of 2016 1 - Mangatu Ram S/o Kartik Ram Kurre Aged About 22 Years R/o Village Datann Police Chowki Lavan, P.S. Kasdol, District Balodabazar- Bhatapara Chhattisgarh. 2 - Ishwar Singh S/o Rameshwar Mahilang Aged About 21 Years R/o Village Datann Police Chowki Lavan, P.S. Kasdol, District Balodabazar- Bhatapara Chhattisgarh. ... Appellants versus State of Chhattisgarh Through The Police Station, Kasdol, District Baloda Bazar - Bhatapara Chhattisgarh. ... Respondent(s) (Cause-title taken from the Case Information System) For Appellants : Mr. Raghvendra Pradhan, Advocate For Respondent : Mr. R.C.S. Deo, Panel Lawyer Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 03/12/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.12.05 10:59:50 +0530 2 CRA No. 826 of 2016 dated 24.06.2016 passed in Sessions Trial No. 74/2013 by the learned Additional Sessions Judge (F.T.C.), Balodabazar, District Balodabazar-Bhatapara, C.G., whereby the appellants have been convicted and sentenced as under:- Appellant No.1 Conviction Sentence U/s 376 of the IPC Rigorous imprisonment for 7 years and fine of Rs. 2,000/- with default stipulation. U/s 363 of the IPC Rigorous imprisonment for 3 years and fine of Rs. 500/- with default stipulation. U/s 366 of the IPC Rigorous imprisonment for 5 years and fine of Rs. 1,000/- with default stipulation. All the sentences were directed to run concurrently. Appellant No.2 Conviction Sentence U/s 363 of the IPC Rigorous imprisonment for 3 years and fine of Rs. 500/- with default stipulation. U/s 366 of the IPC Rigorous imprisonment for 5 years and fine of Rs. 1,000/- with default stipulation. All the sentences were directed to run concurrently. 2. Case of the prosecution, in brief, is that on 01.09.2010, complainant-Mongra Bai, mother of victim PW-1 lodged a report 3 CRA No. 826 of 2016 at P.S. that on 31.08.2010 at 07:00 pm, her daughter/victim/PW-4 had gone for nature’s call and had not returned home. After searching around, she was not found. On that basis, a missing complainant was recorded and during investigation, it was found that the victim was lured by the accused Mangtu Ram (A-1) and she was taken by A-1 with the help of Ishwar Singh (A-2). It is alleged that A-2 dropped A-1 and victim at the Main Road Railway Station, Bhatapara on his Hero Honda motorcycle. From there, the victim was taken by A-1 to Bhatapara, then reached Gudgaon. O the pretext of marriage, A-1 committed sexual intercourse with her. After recovery of victim, a recovery panchnama (Exhibit P-8) was prepared. Spot map was prepared. Statement of victim was recorded. Appellants were arrested. Medical examination of the victim was conducted. With regard to ascertain the age of the victim, Dakhil Kharij Register was seized. After completing the investigation, the final report was prepared. 3. After framing the charges against the accused/appellants, the charges were read out and explained to the appellants, they denied committing the crime and demanded trial. 4. In order to bring home the offence, the prosecution has examined 15 witnesses in its support. Statement of the accused/appellants under Section 313 Cr.P.C were recorded, wherein they have pleaded their innocence and false implication in the matter. 4 CRA No. 826 of 2016 5. The trial Court after appreciating oral and documentary evidence available on record, by its judgment, convicted and sentenced the appellants as mentioned in paragraph one of this judgment. Hence, this appeal. 6. Learned counsel for the appellants submit that the appellants have been falsely implicated in the present case. He would submit that the conviction against the appellants is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. He would submit that while passing the impugned judgment, the trial Court failed to appreciate the fact that there are material contradictions and omissions in the statements of the prosecution witnesses. Learned counsel would submit that the prosecution has failed to prove the fact that the prosecutrix/Victim was below 18 years of age at the time of incident. The victim had gone with the appellants by her own will, and she did not raise voice for help. Hence, without there being any cogent evidence, the conviction of the appellants is bad in the eyes of law. 7. Learned counsel appearing for the State opposes the submissions made by the counsel for the appellants and submits that the conviction of the appellants is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. 8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the 5 CRA No. 826 of 2016 record with utmost circumspection. 9. The first question for consideration would be, whether the trial Court is justified in convicting the appellant for the offences under Sections 363 & 366 of the IPC. 10. The appellants have been convicted for offence of kidnapping. Kidnapping has been defined under Section 359 of the IPC. According to Section 359 of the IPC, kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states as under:- “361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.” 11. The object of Section 359 of the IPC is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients:- (1) Taking or enticing away a minor or a person of unsound mind. (2) Such minor must be under sixteen years of age, if a male, or under eighteen years or age, if a female. 6 CRA No. 826 of 2016 (3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind. (4) Such taking or enticing must be without the consent of such guardian. So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18 years of age; (ii) such minor was in the keeping of a lawful guardian, and (iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian. 12. PW-4, victim stated in her evidence that she knows the accused. She had studied til 10th standard and was 16 years old. On the date of incident, she had gone out of the house for nature’s call between 7:00 and 7:30 a.m. at that time, the appellants forcibly took her to Bhatapara on a motorcycle. A-1 had promised to marry her and she refused to marry him, A-1 started threatening to kill her if she refused. Then, she was taken by A-1 to Gurgaon via Delhi, and kept her at his sister's house, treating her like his wife. In Gurgaon, A-1 committed forcibly sexual intercourse with her. From Gurgaon, brother of A-1 brought her to the Lavan police station, where she and the accused were recovered. In cross-examination, she stated that she was taken to Bhatapara railway station where tickets are issued. At that time many people were present there, including police personnel. She 7 CRA No. 826 of 2016 categorically stated that she did not tell the police officers or the people present there that the accused were taking her forcibly. In her police statement, she had not stated that A-1 committed rape upon her at Bhatapara. She had not told the police that A-1 threatened to kill her if she did not go with him. She further stated that at Bhatapara railway station her hands and legs were free, and she was not tied. It is correct to say that her mouth was also not covered at that time. In para -14, she categorically stated that she was in love affair with A-1. 13. In view of the prosecutrix’s own testimony, the ingredients of Sections 363 and 366 IPC are not established. She stated that 14. Reverting to the facts of the present case in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC, it is evident from the statement of the victim (PW/4) recorded before the trial Court wherein she categorically stated that she was taken to the Bhatapara railway station where tickets are issued, and that at that time many people, including police personnel, were present. She categorically admitted that she did not inform either the police officers or the persons present that the accused were taking her forcibly. She further admitted that in her earlier police statement she had not stated that A-1 committed rape upon her at Bhatapara, nor had she stated that A-1 threatened to kill her if she refused to accompany him. She also clearly stated that at the 8 CRA No. 826 of 2016 railway station her hands and legs were free, she was not tied, and her mouth was not covered. These circumstances negate any element of force, coercion, or enticement, and demonstrate that she had opportunities to seek help but did not do so. In the absence of proof of kidnapping or compelling her to go with the accused, the essential ingredients required to constitute offences under Sections 363 and 366 IPC are not satisfied. 15. As such, there is no evidence on record that at any point of time, the appellant solicited or lured or induced or enticed the victim to go with him. On the other hand, it is clearly established that the victim herself accompanied the appellants and there is no inducement to the victim by the appellant to leave the lawful guardianship. Therefore, in the considered opinion of this Court, the act/omission of the appellant, if any, would not tantamount to “taking” within the meaning of Section 361 of the IPC. Similarly, there is no evidence of enticing the minor victim by the appellant. As such, the trial Court is absolutely unjustified in convicting the appellant for the offences punishable under Sections 363 & 366 of the IPC. Accordingly, the appellants are entitled to acquittal of the offences punishable under Sections 363 and 366 IPC. 16. The second question arises before this Court whether the victim was minor on the date of incident or not?. 17. Victim (PW-4) stated in her evidence that she has studied till 10th 9 CRA No. 826 of 2016 standard and her age is 16 years. However, she does not her exact date of birth. PW-1, mother of victim stated in her evidence that the age of her daughter/victim is 16 years. 18. Dinesh Singh PW-11 Teacher stated who produced the Dakhil Kharij Register, Exhibited as Ex.P/20, has stated in his statement that in Sr.No.1598 of the register, the date of birth of the victim is recorded as 23/11/1993. Moreover, in his cross-examination, he categorically stated that he does not know who admitted the victim in the said school and on what basis, the entry was made in the register. 19. Perusal of the aforesaid statements of the witnesses would show that though there is entry regarding date of birth of the victim in the Dakhil Kharij Register, but on what basis, the entry was made, is not mentioned in the register, whatsoever mentioned in the register is ordeal in nature. 20. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Supreme Court has observed as under: "40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has 10 CRA No. 826 of 2016 been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in 11 CRA No. 826 of 2016 the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he 12 CRA No. 826 of 2016 was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 21. From the aforesaid principles laid down by the Hon’ble Supreme Court and the evidence adduced by prosecution regarding the age of victim, it is not proved that the victim is below 18 years of age, hence, the conviction of appellants under Section 363, 366 of IPC is not made out. 22. As far as the conviction of A-1 under Section 376 of IPC is concerned, 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 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, 13 CRA No. 826 of 2016 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 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 14 CRA No. 826 of 2016 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 law did not 15 CRA No. 826 of 2016 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.” 23. Thus, applying the well settled principles of law laid down by the Hon’ble Supreme Court in the matter of Tilku Alias Tilak Singh (supra) and from the medical evidence with regard to the age of the victim, it is held reliable that the victim was major aged about between 16-18 years at the time of incident, according to the principles of the Supreme Court. In the above judgment that the 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. 24. The next question for consideration would be whether the A-1 has committed rape upon her or not? 16 CRA No. 826 of 2016 25. Dr. Neeta Bhatnagar (PW-6), who conducted the medical examination of victim stated in her evidence that during external examination, she found that her secondary sexual characteristics were fully developed. No injury marks were found on her body. In internal examination, no injury marks were found on her private parts. The hymen was torn and there was no redness. She felt slight pain during the examination. A finger was easily inserted into her vagina. Two slides were prepared, sealed, and handed over to the same constable for chemical examination after taking vaginal discharge. She opined that it is possible that she may have had sexual intercourse, which can be confirmed by slide examination. 26. Perusal of the abovementioned statement of the victim PW/4, it is clear that the testimony of PW-4 does not inspire the confidence required to sustain a conviction under Section 376 IPC. Material omissions and contradictions between her court deposition and her police statement strike at the root of the prosecution’s case. In cross-examination, she admitted that she had not informed the police that A-1 had committed rape upon her at Bhatapara, nor had she disclosed that A-1 threatened to kill her if she refused to accompany him. She further admitted that at the Bhatapara railway station, where several people including police personnel were present, at that time, her hands and legs were 17 CRA No. 826 of 2016 free, she was not tied, her mouth was not covered, and yet she did not raise any alarm or seek help. Further, she was in love relation with A-1 as she stated in her cross-examination. These circumstances cumulatively create serious doubt regarding the voluntariness of her conduct and the veracity of the allegations of forcible sexual intercourse. Moreover, in the medical examination of victim, which was conducted by Dr. Neeta Bhatnagar (PW-6), stated that no external injury marks were found on her body and no internal injury marks were found on her private parts. From the version of the prosecutrix, it appears to be she is a consenting party. In the absence of cogent, consistent, and trustworthy evidence establishing the essential ingredients of the offence under Section 376 IPC beyond reasonable doubt, the A-1 is entitled to the benefit of doubt. 27. 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. 18 CRA No. 826 of 2016 28. For the foregoing reasons, the prosecution has not proved that the appellants had forcefully taken away the Victim and commit sexual intercourse with her and from the evidence of the victim, the same creates doubt and also the fact that since, it has also not proved that at the time of incident the Victim was minor, therefore, I am of the view that the appellants are entitled to be acquitted. 29. The appellants are acquitted of the charges under Section 363, 366 (for A-1 and A-2) and Section 376 (for A-1). The appellants are reported to be on bail. Their bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal Appeal is allowed. 30. The trial court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. SD/- (Bibhu Datta Guru) Judge Gowri/Amardeep