1 2025:CGHC:56222 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1585 of 2023 Judgment Reserved on : 27.10.2025 Judgment Delivered on : 19.11.2025 1 - Govind Kumar Tandon @ Golu Son Of Krishnachand, Aged About 22 Years Resident Of Village Chhoti Bazar, Dalganjan Dafai, Police Station Chirmiri, District - Koriya, Chhattisgarh. ... Appellant / Accused versus 1 - State Of Chhattisgarh Through Police Of Police Station Chirmiri, District Koriya, Chhattisgarh. ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Pritam Kumar Tiwari, Advocate For State/Respondent : Mr. Pratik Tiwari, Panel Lawyer. (Hon’ble Mr. Naresh Kumar Chandravanshi, J) C A V Judgment 1. This criminal appeal has been preferred against judgment of conviction and order of sentence dated 15.06.2022 passed by the Upper Sessions Judge, Fast Track Special Court (Protection of Children from Sexual Offences Act, 2012) Manendragarh, District Koriya (henceforth referred to as ‘Special Court’) in Special Criminal Case No.18/2019, RUKHSAR BANO Digitally signed by RUKHSAR BANO Date: 2025.11.19 15:02:03 +0530 2 whereby learned Special Judge, after holding the appellant/accused guilty, convicted and sentenced him in the following manner :- Conviction under Section Jail Sentence Fine Sentence Default stipulation 363, IPC RI for 02 years Rs. 500/- RI for 1 month 366, IPC RI for 05 years Rs. 500/- RI for 1 month 376(2)(N), IPC RI for 10 years Rs. 500/- RI for 1 year 6, POCSO Act Since the appellant has been sentenced for the offence u/S 376 (2)(N) of IPC, which is greater in degree of punishment than Section 6 of the POCSO Act, therefore, in view of the provisions of Section 42 of the POCSO Act, he has not been sentenced in this Section. All the substantive jail sentences have been directed to run concurrently. 2. The case of the prosecution, in brief, is that, on 08.04.2017, grandmother of a minor victim made written complaint (Ex. P-3) to Police Station Chirmiri, District Koriya to the effect that, appellant /accused abducted her minor grand-daughter, aged about 16 years by alluring her, based on which, FIR (Ex. P-4) was registered in Police Station Chirmiri against appellant for the offence punishable under Sections 363 and 366 of the IPC. Victim was recovered at the instance of appellant from the house of his Badi Amma namely; Smt. Amba (PW-4), situated at village Kutrabod, Pamgarh vide recovery memo (Ex. P-9). Statement of the victim was recorded, in which, she revealed that the appellant took her on motor cycle along with co-accused Avinash alias Golu to Pathalgaon where they resided for about 7-8 days, as the appellant and victim liked each other since about 2-3 years. Thereafter, the appellant took her to village Nariyara where he also kept her for about 7-8 days, and thereafter, they went to Pamgarh 3 and stayed there in the house of relative of the appellant. She further stated that in aforesaid period, the appellant made physical relation with her. During investigation, spot map (Ex. P-5) was prepared by Patwari. Birth certificate (Ex. P-29) of victim was seized from mother of the victim by police. Vide seizure memo (Ex. P-10), one motor cycle and one mobile were seized from the appellant. Photocopy of Dakhil Kharij register (Ex. P-11C) pertaining to the victim was seized from Sunil James Jay (PW-7), Clerk of DAV Public School. Underwear (panty) of the victim was seized from her vide seizure memo (Ex. P-1). Underwear of the appellant and his semen slide were seized vide seizure memo (Ex. P-19). The victim was medically examined by Dr. Ayushi Rai (PW-12), in which, vide MLC report (Ex. P-28), she opined that, she did not find any external or internal injury on the person of victim. She prepared two vaginal slides of the victim for medical examination and handed over the same to the concerned Constable. The appellant/accused was also medically examined by Dr. P.K. Rohan (PW-14), who opined vide MLC report (Ex. P-18) that the report of appellant is positive. Statements of the other witnesses under Section 161 of the Cr.P.C. were also recorded. The appellant / accused and co- accused were arrested. The seized articles, i.e., vaginal slides and underwear of the victim as well as semen slides and underwear of the appellant were sent for chemical examination. Vide FSL report Ex. P- 26, it was reported positive. After completion of investigation, a charge- sheet under Sections 363, 366, 376, 368 of the IPC and Section 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (henceforth referred to as ‘the POCSO Act’) was filed by police before the concerned Court against appellant / accused and co-accused 4 Avinash alias Golu. 3. First Upper Sessions Judge, Manendragarh, Distt. Koriya framed Charges under Sections 363, 366, 376(2)(N), 506 part-II of the IPC and Sections 4, 6 & 10 of the POCSO Act against the appellant/accused. Charges under Section 363, 366, 366-A and 368 of the IPC were framed against the co-accused Avinash @ Golu. Both the accused abjured their guilt and claimed trial. 4. In order to prove the guilt of both the accused, the prosecution examined as many as 18 witnesses and exhibited 30 documents including Article A-1 and Article A-2. Statements of the accused persons under Section 313 of the Cr.P.C. were recorded, in which, they denied all the incriminating circumstances appearing against them in the evidence of the prosecution claiming themselves innocent and falsely implicated, but they have not examined any witness in their defence. 5. Learned Special Court after appreciating the evidence adduced by the prosecution, acquitted the co-accused Avinash @ Golu of all the charges levelled against him, but convicted and sentenced the appellant/accused, as mentioned in opening paragraph of this judgment, which has been challenged by him by filing instant appeal. 6. Learned counsel for the appellant/accused would submit that the victim has been held to be minor by the learned Special Court only on the basis of Dakhil Kharij Register (Ex. P-11‘C’) of the DAV Public School, Chirmiri, Distt. Koriya, but it has not been proved by the victim or her relatives that on what basis, the date of birth of victim has been 5 recorded in the school record. He would further submit that though birth certificate (Ex. P-29) of the victim has also been proved, but her birth was registered after four years of her birth, therefore, it also cannot be relied upon, hence, date of birth of victim said to be 01.06.2000 recorded in aforesaid document cannot be held to be her actual date of birth. Therefore, the finding recorded by learned Special Court that the victim was minor on the date of incident, is perverse and illegal. He next submitted that there is material contradiction and omission in deposition of victim and her statement recorded by the Police, therefore, only on the basis of deposition of victim, charges levelled against the appellant / accused cannot be held proved, particularly when it has not been proved beyond reasonable doubt that victim was minor on the date of incident and she herself accompanied appellant, and she was consenting party. Learned counsel lastly submitted that without any cogent evidence and without appreciating evidence adduced by the prosecution in its true perspective, learned Special Court has convicted the appellant, which is perverse to the evidence available on record. Hence, he prays that the appeal may be allowed and the appellant may be acquitted of all the said charges. 7. Per contra, learned counsel appearing for the State supported the impugned judgment passed by the Special Court. 8. I have heard learned counsel for the parties and perused the material available on record along with original record of the Special Court. 9. As per the case of prosecution, the victim was a minor girl on the date of incident i.e. 08.04.2017. She, her grand-mother (PW-2), her Aunt 6 (PW-3) and her mother (PW-18) have not stated date of birth of victim in their deposition, rather as per deposition of victim (PW-1), on the date of incident, her age was 17 years, which also gets support from deposition of her grand-mother (PW-2), whereas mother (PW-18) of victim has stated that on the date of incident, age of victim was 16 years. 10. Learned Special Court has held victim ‘minor’ on the basis of Dakhil Kharij register (Ex. P-11C) of the DAV Public School, Chirmiri pertaining to the victim, which has been proved by Sunil James Jay (PW-7), who is Clerk of aforesaid school. In aforesaid Dakhil Kharij register, date of birth of victim has been mentioned as 01.06.2000. (Sub-Inspector S.K. Singh has also been numbered as PW-7.) 11. In instant case, birth certificate (Ex. P-29) of victim (PW-1) was also seized from mother (PW-18) of the victim vide seizure memo (Ex. P-7). That birth certificate has been issued by Registrar (birth-death), Municipal Corporation, Chirmiri, District Koriya (CG). Issuance of said birth certificate has been proved by Deepak Verma (PW-17), who was posted as Asstt. Office Superintendent, Municipal Corporation, Chirmiri. He has proved birth certificate (Ex. P-29) on the basis of counter foil (्ቚतिप्ቓ) maintained in their office. Though he has admitted in his cross- examination that on the basis of assumption, he has stated in examination-in-chief about filing of affidavit and order of the Executive Magistrate by Manoj Kumar for issuance of aforesaid birth certificate, but since he has proved aforesaid birth certificate on the basis of record maintained in their office, therefore, credibility of Ex. P-29 cannot be disregarded, rather it is found that prosecution has proved 7 genuineness of birth certificate (Ex. P-29), in which, date of birth of victim has been mentioned as 01.06.2000. Thus, on the strength of birth certificate (Ex. P-29), it is found proved that date of birth of victim was 01.06.2000, which also gets support from Dakhil Kharij register (Ex. P-11C) pertaining to the victim. 12. In the POCSO case, the age of the victim / prosecutrix is the most important aspect. The manner & procedure to determine the age of minor / juvenile has been contemplated in Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (henceforth referred to as ‘JJ Act, 2015’), which reads thus :- “ 94. Presumption and determination of age - (1) xxx xxx xxx (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining — (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or 8 any other latest medical age determination test conducted on the orders of the Committee or the Board : Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.” 13. The Hon'ble Supreme Court while emphasizing the aforesaid provision in the cases of Om Prakash Vs. Union of India (Criminal Appeal No. 4229 of 2024, decided on 08 th January, 2025 ) and Rajni Vs. State of Uttar Pradesh [2025 LiveLaw (SC) 602] has held that age of the minor should be determined according to Section 94 of the JJ Act, 2015, which is a reiteration of Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007, which mandates the explicit outline, a sequence for determining a person’s age i.e. date of birth certificate from a School, or matriculation / equivalent certificate from the concerned examination Board, if available; and in the absence thereof; a birth certificate given by a Corporation or Municipal Authority or a Panchayat. And only in the absence of above document, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. 14. In the present case, though Dakhil Kharij Register (Ex. P-11C) of the DAV Public School, Chirmiri pertaining to the victim has been proved, but apart from that, birth certificate (Ex. P-29) of victim has also been proved, and Section 94 (2) (ii) of the JJ Act, 2015 provides that the 9 birth certificate given by a Corporation or a Municipal Authority or a Panchayat is a valid document to determine the age of minor/juvenile until unless the same is not disproved. In instant case, since birth certificate of victim has been proved by the prosecution and in that document as also in dakhil kharij register, date of birth of victim has been mentioned as 01.06.2000 and no evidence has been brought by appellant /accused to disbelieve aforesaid facts, therefore, on the strength of Section 94 (2)(ii) of the JJ Act, 2015, it is very well proved that on the date of incident, age of victim was 16 years, 10 months & 07 days. In other words, she was minor. Hence, finding recorded by learned Special Court that victim was minor on the date of incident is upheld. 15. So far as commission of kidnapping / abduction of victim is concerned, as per deposition of victim (PW-1), on the date of incident, the appellant and co-accused Avinash @ Golu abducted her under threat, took her on a motorcycle to Pathalgaon, where they kept her with them. Thereafter, they took her to village Nariyara in the house of Badi Maa of appellant Govind Kumar Tandon, and thereafter, they took her to village Bandoura (Pamgarh), District Janjgir Champa, where she and appellant Govind stayed for about 4-5 days and from there, police brought her to P.S. Chirmiri. Victim (PW-1) has further stated in her deposition that in aforesaid period, the appellant used to make forceful physical relation with her. In cross-examination also, she has supported her statement of examination-in-chief that accused persons took her to Pathalgaon, Bandoura, Nariyara etc. and kept her in the house of relative of appellant Govind. Nothing has been elicited in her 10 cross-examination to discard her statement of examination-in-chief. 16. PW-2 is grand-mother of victim, PW-3 is aunt (Bua) of victim and PW- 18 is mother of victim. They have also supported the statement of victim that appellant had taken her with him, as such, they did not find victim in the morning. They have further stated that after about 17-18 days, she was recovered from appellant Govind. 17. Smt. Amba (PW-4) is sister of mother of appellant. She is resident of village Kutrabod (Pamgarh). She has also stated in her deposition that appellant and his friend had brought victim to her house where they stayed for about 2 days. She has also stated that police caught them in her house and recovery memo (Ex. P-9) with regard to recovery of victim was prepared by the police. 18. Tulsidas Manikpuri (PW-5) is a Sarpanch of village Kutrabod. He has also admitted his signature in recovery memo (Ex. P-9). Though he has admitted in his cross-examination that victim was not recovered in his presence from the house of Smt. Amba (PW-4), but Smt. Amba has specifically stated that victim was recovered from possession of appellant from her house situated at Kutrabod, which also gets support from deposition of Asstt. Sub-Inspector Dilip Dubey (PW-8), who was the investigating officer of the case and prepared Ex. P-9. Nothing has been brought by the defence counsel of appellant to discard trustworthiness of deposition of aforesaid witnesses that, victim was recovered from possession of appellant from the house of her Badi Maa Smt. Amba (PW-4). Thus, it is very well proved that appellant abducted minor victim on the date of incident and took her to various 11 places and she was recovered from possession of appellant vide recovery memo (Ex. P-9) on 24.04.2017 from the house of Smt. Amba situated at village Kutrabod (Pamgarh). Therefore, learned Special Court has rightly held proved that appellant abducted minor victim and took her to various places and she was recovered from possession of appellant on 24.04.2017. 19. As far as offence of repeated rape committed by appellant with victim is concerned, it is proved from the evidence of the victim (PW-1) that after her abduction, the appellant Govind Kumar Tandon @ Golu kept her with him for about 16 days. Victim has specifically stated in her deposition that in between, the appellant Govind Kumar Tandon used to make forceful physical relation with her. This fact has not been controverted by the victim in her cross-examination. Though grand- mother (PW-2) and mother (PW-18) of victim have not stated in their deposition that victim had told them about aforesaid fact, but PW-3 aunt (Bua) of the victim has stated in her deposition that after getting back, victim had told her about aforesaid forceful sexual exploitation by appellant Govind Kumar Tandon with her. 20. Dr. Ayushi Rai (PW-12) conducted medical examination of victim, in which, vide MLC report (Ex. P-28), she opined that since no external or internal injury was found on the person of victim, therefore, no definite opinion can be given about commission of recent intercourse with victim, as such, she prepared two vaginal slides of victim and collected her panty and handed over the same to the concerned Constable, which was seized vide seizure memo (Ex. P-8) by Asstt. Sub-Inspector Dilip Dubey (PW-8), which has also been supported by mother of 12 victim. 21. Medical report of appellant / accused was also conducted by Dr. P.K. Rohan, in which, vide MLC report (Ex. P-18A), he opined ‘positive’ and also collected his underwear, which was seized vide seizure memo (Ex. P-19) by Asstt. Sub-Inspector Dilip Dubey (PW-8), which also gets support from its witnesses Suman Khalkho (PW-15) and Arvind Kumar Mishra (PW-13). 22. Ex. P-26 is FSL report of vaginal slides & panty of victim, and under wear & semen of appellant, in which, semen and human spermatozoa have been reported to be found in aforesaid articles. Thus, though there is no other witness in support of deposition of victim that in said period, the appellant sexually exploited her without her consent / will, but her statement gets support from FSL report (Ex. P-26), hence, the finding recorded by the Special Court holding appellant guilty for the offence under Section 376(2)(N) of the IPC is also found to be sustainable. 23. Though mother (PW-18) of victim has stated in her deposition that after returning, the victim had told her that she accompanied appellant of her own will, suggestion has also been taken by learned defence counsel from grand-mother and mother of victim that, since they had scolded victim, hence, she left her house on her own. Even if aforesaid fact is accepted, despite that, it is proved from the evidence of the prosecution that victim was minor, i.e., below 18 years of age on the date of incident, therefore, her consent or willingness has no legal value. Furthermore, it is also proved that appellant not only abducted 13 the victim and kept her with him for about 16 days at various places, but also forcibly sexually exploited her. Hence, in view of the above discussion, I do not find any infirmity or illegality in the impugned judgment convicting the appellant under Sections 363, 366 and 376 (2) (N) of the IPC. Considering the minimum sentence of 10 years provided for the offence under Section 376 (2)(N) of IPC and all the sentences have been directed to run concurrently, the sentences awarded are also found to be adequate. 24. In view of above discussion, I do not find any good ground to interfere with the impugned judgment of conviction and order of sentence passed by the learned Special Court, hence, the same is upheld. Resultantly, the Criminal Appeal is dismissed. 25. The appellant is said to be in jail, therefore, it is directed that he shall serve the remaining jail sentences imposed upon him by the Special Court. 26. A copy of this judgment along with record of the Special Court be sent back forthwith for compliance and necessary action. Sd/- (Naresh Kumar Chandravanshi) Judge Rukhsar