1 2025:CGHC:55859 The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full 11.08.2025 17.11.2025 -- 17.11.2025 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 172 of 2007 Judgment Reserved on : 11.08.2025 Judgment Delivered on : 17.11.2025  Rajkumar Sharma, S/o Arjun Sharma, aged about 19 years, Caste – Carpenter, R/o Dehri Vishrampur, Police Station – Husainabad, District – Palamu (Jharkhand), at present Imalibhatha, Bandhawapara, House of Dudheshwar Sharma, Police Station House – Sarkanda, District – Bilaspur (C.G.) ---- Appellant Versus  State of Chhattisgarh Through : S.H.O., Police Station – Sarkanda, District Bilaspur (C.G.) ---- Respondent For Appellant. - Mr. Dharmesh Shrivastava, Advocate. For Respondent - Mr. Afroj Khan, P.L. 2 Hon'ble Smt. Justice Rajani Dubey (C.A.V. Judgment) 1. This appeal arises out of the judgment of conviction and order of sentence dated 20.12.2006 passed by the Special Judge (constituted under Scheduled Castes and Scheduled Tribes) (Prevention of Atrocities) Act, 1989, Bilaspur, District Bilaspur in Sessions Trial No.245/2005 convicting the accused/appellant under Sections 363, 366 and 376 of the IPC & sentencing him to undergo R.I. for 03 years with fine of Rs.500/-, R.I. for 03 years with fine of Rs.500/- and R.I. for 07 years with fine of Rs.1000/- respectively, with default stipulations. All the sentences were directed to run consequently. 2. The prosecution story, in brief, is that on 24.03.2005, father of the prosecutrix (PW-06) lodged a report to the effect that his minor daughter (PW-04) was not in the house since 21.03.2005 and even after extensive search she could not be found. Thereafter, the police of Police Station - Sarkanda lodged a missing report No. 18/2005 on the basis of Sanha report (Ex.P-09) and after some investigation, an FIR (Ex.P-10) was lodged against the accused/appellant. During the course of investigation, it was revealed that the 3 accused/appellant after alluring the prosecutrix (PW-4) abducted her from lawful guardianship. It was also revealed that the accused/appellant committed forceful sexual intercourse on the pretext of marriage. After recovery of the prosecutrix (PW-4), she was sent for medical examination to CIMS, Bilaspur where Dr. Nilima Sharma (PW-02) conducted medical examination of the prosecutrix and gave her report (Ex.P-2) opining that secondary sexual characteristics were fully developed and she was habitual for intercourse and no any injury was seen over her body. The accused/appellant was also medically examined vide Ex.P-1 by Dr. S.K. Mishra (PW-1) who found the accused/appellant to be capable of performing sexual intercourse. The dakhil kharij register (Ex.P-3), school admission letter (Ex.P-4) were obtained and mark list (Ex.P- 7) of prosecutrix was seized vide Ex.P-6 & according to the aforesaid documents obtained from the school, the prosecutrix (PW-4) was found below the age of 16 years. The spot map was prepared by Patwari, articles were seized, present appellant was arrested vide arrest memo (Ex.P-14), statement of the witnesses were recorded and after completion of the entire investigation, charge sheet was filed against the accused/appellant under Sections 363, 4 366, 376 of IPC and accordingly the learned trial Court framed charges against the accused/appellant. 3. So as to hold the accused/appellant guilty, the prosecution examined as many as 11 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 4. The trial Court after hearing counsel for the respective parties and considering the material available on record has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that the age of the prosecutrix is doubtful which is based on dakhil kharij register of primary school as the Headmaster of the school has clearly mentioned that the date of birth was not supported by any of the document at the time of admission of the prosecutrix and the author of dakhil kharij register who made the particular entry therein has not been produced by the prosecution. That apart, the doctor has also opined that more than 28 teeth came after the age of 18 years and also held that secondary sexual characteristics of the girl were fully developed which indicates that the 5 prosecutrix was more than 18 years of age. Learned counsel further submits that the prosecutrix’s (PW-4) testimony contains inconsistencies particularly regarding her actions during the alleged kidnapping and subsequent events. The Prosecutrix has admitted in cross-examination that she did not raise an alarm or report the incident to anyone despite having multiple opportunities while traveling from Bilaspur to Kawardha, Raipur, Jabalpur and Durgapur, which raises doubts about the alleged coercion and threats by the appellant suggesting possible consent or voluntary accompaniment. Further, the lack of independent witnesses to corroborate the victim’s account of being forcibly taken or threatened weakens the prosecution’s case. Learned counsel also submits that the appellant had produced love letter (Ex.D-1, D-2, and D-3, out of which Ex.D-3 was admitted by the prosecutrix to be written by her. This supports the appellant’s claim of a consensual romantic relationship which aligns with his statement that the prosecutrix willingly accompanied him. Learned counsel also submits that the incident allegedly occurred on 21.03.2005 but the missing report was lodged on 24.03.2005, and the FIR was registered on 30.03.2005, nearly 10 days later. This significant delay in reporting the 6 incident raises question about the credibility of the prosecution case. Additionally, the complainant’s initial report did not name the appellant as suspect, and his statement was not recorded by the police until presented in court, indicating potential gaps in the investigation process. Learned counsel also submits that the medical report also does not support the prosecution case regarding the commission of rape. The appellant’s defence of a consensual relationship was not adequately considered by the learned trial Court. The prosecutrix had written letters to the appellant and travelled with him by rickshaw to go to Bus stand, from where they travelled to Kawardha, Raipur, Jabalpur, and then to Durgapur and resided there with the appellant for about 20-22 days and as per medical report of the prosecutrix, it is clear that the prosecutrix was either at the verge of attaining age of majority or she was major girl, thus, it is clear that the prosecutrix was understood what was right and wrong for her and this issue has already been decided by the Hon’ble Apex Court in case of Tilku @ Tilak Singh Vs. State of Uttarakhand in Criminal Appeal No. 183/2014 where the Hon’ble Apex Court held that between 16 to 18 years of age is the age of understanding as to what was right and wrong for her and the Hon’ble Supreme Court 7 has considered the case of S. Vardarajan Vs. State of Madras reported in 1964 SCC Online SC 36, thus it is clear that no offence under Sections 363, 366 and 376 of IPC would be made out against the present appellant, therefore, the present appellant is entitle to be acquitted. 6. In support of his submission, learned counsel placed reliance on the decisions of Hon’ble Apex Court in the matter of P. Yuvaprakash Vs. State reported in 2023 SCC Online SC 846, C. Doddanarayana Reddy (Dead) By LRs Vs. C. Jayarama Reddy (Dead) by LRs reported in (2020) 4 SCC 659, Tilku @ Tilak Singh Vs. State of Uttarakhand reported in 2025 SCC Online SC 353 and the decisions of this Court in the matter of Sanjay Manikpuri Vs. State of Chhattisgarh [CRA No.1356/2021 decided on 14.12.2023], Kishan Dahariya Vs. State of Chhattisgarh [CRA No. 559/2022 decided on 06.12.2023] and Rajendra Malik Vs. State of Chhattisgarh [CRA No. 674/2003 decided on 12.08.2024]. 7. On the other hand, supporting the impugned judgment it has been argued by the State counsel that the conviction of the accused/appellant is strictly in accordance law and there is no infirmity in the same. 8. I have heard learned counsel for the parties and perused 8 the material available on record. 9. It is clear from the record of the learned trial Court that the learned trial Court framed charges against the accused/appellant under Sections 363, 366 and 376 of IPC and after appreciation of oral and documentary evidence, the learned trial Court convicted the accused/appellant accordingly. 10. The first question which arises for consideration before this Court is whether the learned Trial Court was justified in holding that the Prosecutrix on the date of incident was minor ? 11. According to the prosecution, the date of incident is 21.03.2005 and as per Dakhil Kharij register the date of birth of the prosecution is 13.08.1986, as such, the age of the prosecutrix came to be 15 years, 7 months and 8 days at the time of incident. 12. Prosecutrix (PW-4) has stated in para 5 that she had disclosed her aged to be 18 years in the police station. In para 48 of her cross-examination, she admits that she passed the S.S.C. examination in the year 2005. 13. Further, Kesar Prasad Pandey (PW-3) - Headmaster of Primary School, Bandhwapara has stated that he was posted in the school since 20.11.2002 and upon his 9 production, the police had seized the certified copy of Dakhil Kharij register vide Ex.P-3 and had inquired regarding date of birth and admission of prosecutrix in the school. He has stated that according to the Dakhil Kharij register, the name of prosecutrix was entered at Sl. No.1154, her date of birth was 13.07.1989 and she was admitted in Class 1st in 01.08.1995. In cross-examination, this witness has admitted that date of birth of the prosecutrix was entered on the basis of Tatima Form (Ex.P-4) but no Kotwari book, birth certificate of hospital or Nagar Nigam or birth certificate of Registrar (Death and Birth) is attached with the Tatima Form. He has stated that he cannot tell that the date of birth recorded in the Tatima Form is correct or not. This witness has also stated that he was posted in the school since 20.11.2002 and the prosecutrix admitted on 01.08.1995. Thus, from the aforesaid testimony of this witness it is clear that he is not the author of Dakhil Kharij register. 14. Dr. (Ms.) Nilima Sharma (PW-2) who medically examined the prosecutrix advice to get the prosecutrix to radiologist for determination of her age, but no x-ray or ossification test report was filed by the prosecution. 15. The Hon’ble Apex court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, 10 (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment 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 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. 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. 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 11 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 was a minor. A court of law for the purpose of determining the age of a party 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.” 16. Reverting to the facts of the present case and after considering the entire facts and circumstances of the case 12 and evidence available on record, this Court finds that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the prosecution so as hold that on the date of incident the prosecutrix was minor and below 18 years of age. Only on the basis of school admission register it would not be safe to hold that the prosecutrix was minor on the date of incident. The prosecutrix has stated that on the date of incident she was 18. Further, the age of the prosecutrix was recorded on the basis of Tatima Form but no supporting document was attached with the Tatima Form. In such circumstances, it is difficult to arrive at definite finding that the date of birth of the prosecutrix recorded in the Dakhil Kharij register is correct but the learned Trial Court did not appreciate all these facts and the prosecution has failed to prove this fact beyond reasonable doubt that the prosecutrix was below 18 years of age on the date of incident. Hence, this Court set aside the finding given by the learned Trial Court that on the date of incident the prosecutrix was minor. 17. As regards the forceful sexual intercourse by the appellant upon the prosecutrix is concerned, this Court has carefully gone through the evidence of prosecutrix. 18. Prosecutrix (PW-4) has admitted this suggestion that she 13 accompanied the accused/appellant to Kawardha and after reaching Kawardha, they boarded the bus for Raipur which took 04 hours to reach Raipur and during this period the bus stopped at several places and the passengers were constantly boarding and getting off the bus and during this four hours journey she remained seated in the bus and did not get off. The accused also sat beside her for four hours. They reached Raipur at around 1.00 PM. She has also admitted that from Raipur they took vehicle Marshal for Jabalpur on rent and after performing 6-7 hours journey they reached Jabalpur at around 8-9 PM. She admits that on the date of incident, she travelled continue from 5.00 am to 9.00 pm. Thereafter, she boarded the train for Durgapur and reached at morning and during this peirod many passengers boarded the train and get off the train but she did not inform anyone about her abduction/kidnapping. She admits that there remains G.R.P. Chowki at Railway Station but she did not make any complaint to police as the accused/appellant had threatened her. She also admits that she did not stay at Durgapur and proceeded for Faridpur in bus but she did not make effort to go to police station. After reaching Faridpur, she went to the house of brother-in-law (Jija) of the accused/appellant where she stayed for 10-15 days but 14 except the brother-in-law of the accused/appellant she did not inform anyone at home. The prosecutrix has denied this suggestion that she was in love with the accused/appellant and therefore she went with him but close scrutiny of the evidence makes its clear that while travelling with the accused/appellant for such long distance she did not make any hue and cry and also did not make complaint at Railway Station despite having knowledge that there is G.R.P. Station in Railway, and did not resist the act of the accused and submitted herself to his disposal speaks in volumes regarding her clear cut consent and she accompanied him of her own Will. 19. Further, Dr. 19. Further, Dr. (Ms.) Nilima Sharma (PW-2) who medically examined the prosecutrix and gave her report under Ex.P-2 noticing no external or internal injury on the body of prosecutrix and opined that no definite opinion regarding recent sexual intercourse could be given also speaks in volumes about prosecutrix’s clear cut consent and discard the story of forceful sexual intercourse. 20. This Court in the matte of Sanjay (supra) held in para 18 and 21 as under :- “18. In her 164 Cr.P.C. statement, she has not stated that the appellant allured or threaten her or used any force while travelling along with him and while making physical relationship with her 15 against her will or consent. 19. xxx 20. xxx 21. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix 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.” 21. In the instant case also, though the prosecutrix has denied many suggestion of defence but she admitted the factum of long travelling with the accused/appellant to many places and her stay for 10-15 days in the house of appellant’s brother-in-law house without any protest there-against and further admitted to have written love letter (Ex.D-3) for accused/appellant. The evidence of prosecutrix (PW-4) does not inspire much confidence of this Court to hold him guilty for the offences levelled against him but the learned trial Court did not appreciate all these fact and recorded perverse finding. 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. 16 22. Considering the entire evidence available on record and the conduct of the prosecutrix, this Court is of the opinion that the prosecutrix on the date of incident was not minor, further she was consenting party to the act of the appellant. Therefore, in the above facts and circumstances of the case, offence under Sections 363, 366 and 376 would not be made out against the appellant. 23. For the foregoing reasons, the appeal is allowed. Conviction of the accused/appellant under Sections 363, 366 and 376 of the IPC and sentenced imposed thereunder by the impugned judgment dated 20.12.2006 are hereby set aside. The appellant stands acquitted from all the charges. 24. The appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provision of Section 437-A of Cr.P.C. (new Section 481 of BNSS). 25. 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/- (Rajani Dubey) JUDGE pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.11.17 15:06:42 +0530