1 CGHC010324012024 2026:CGHC:29283-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1739 of 2024 Vimal @ Bittu Sahu S/o. Bisahu Ram Sahu Aged About 25 Years R/o. Village - Parpodi, Police Station - Parpodi, District - Bemetara (C.G.) (Accused) ... Appellant versus State of Chhattisgarh Through The S.H.O., Police Station - Gandai, District - Khairagarh-Chhuikhadan-Gandai (C.G.) (Prosecution) ... Respondent For Appellant : Ms. Sharmila Singhai, Senior Advocate assisted by Mr. Siddharth Pandey, Advocate For Respondent/ State : Mr. S.S. Baghel,Government Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble S hri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, C.J . 13.07.2026 1. Today, though the matter is listed for hearing on I.A.No.01/2024, which is an application for suspension of sentence and grant of bail to the appellant, but considering the fact that the notice issued to the father of the victim (PW-1) has been duly served upon him by the State, however, none has appeared on his behalf to contest the present bail application or the appeal in merit and ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 further considering the fact the appellant was in jail during the trial from 01.04.2021 to 02.08.2021 and thereafter since 12.09.2024 i.e. the date of impugned judgment of conviction and order of sentence, with the consent of learned counsel for the parties, the appeal is heard finally. 2. Accordingly, I.A. No. 01/2024 stands disposed of. 3. This criminal appeal under Section 415(2) of the Bhartiya Nagarik Suraksha Sanhita, 2023 is directed against the impugned judgment of conviction and order of sentence dated 12.09.2024 passed by the learned Special Additional Sessions Judge, Khairagarh, District – Khairagarh-Chhuikhadan-Gandai (C.G.) in Special Sessions Trial No. 16/2021, whereby the learned trial Court has convicted and sentenced the appellant with a direction to run all the sentences concurrently in the following manner : CONVICTION SENTENCE U/s 363 of IPC RI for 7 years and fine of Rs. 2,000/- and in default of payment of fine amount, additional imprisonment for 02 months U/s 366A of IPC RI for 10 years and fine of Rs. 3,000/- and in default of payment of fine amount, additional imprisonment for 03 months U/s 506 Part-I of IPC RI for 1 years and fine of Rs. 1,000/- and in default of payment of fine amount, additional imprisonment for 01 month 3 U/s 5(l)/6 of POCSO Act RI for 20 years and fine of Rs. 10,000/- and in default of payment of fine amount, additional imprisonment for 10 months Section 67 of the IT Act RI for 3 years and fine of Rs. 5,000/- and in default of payment of fine amount, additional imprisonment for 05 months 4. Case of the prosecution in brief is that on 31.03.2021 at about 19:30 pm, the father of the victim (PW-01) appeared at the Gandai police station and submitted a written complaint, Ex.P-01, stating that two years ago, his daughter, the victim, aged 16 and a half years, used to study at her maternal grandfather's house in village xxx. During this time, she got acquainted with the accused Vimal Sahu alias Bittu Sahu and they started talking. On 07.03.2021 the victim was very upset. When questioned, she tearfully stated that the accused had taken her to a mango orchard and forcibly had sex with her, and had continued to have sex with her several times. During this time, he also took photos and made obscene videos without her knowledge. She has currently stopped talking to the accused. However, when she went to her maternal grandfather's house on 02.03.2021, the accused threatened to make her obscene photos and videos viral if she stopped talking. Subsequently, 09.03.2021, and 10.03.2021, the accused sent obscene videos from his mobile number 76105xxxxx to her personal mobile number 75871xxxxx and to other WhatsApp groups in the village, leaving the victim 4 distressed and frightened. She wants action against the accused. On the basis of the aforesaid complaint of the father of the victim, Inspector Shashikant Sinha (PW-13) registered a First Information Report (Ex.P-02) under Crime No. 55/2021, Section 376 (2) (n) of the Indian Penal Code (IPC), Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Section 67A of the Information Technology Act, 2000 (IT Act). 5. During the investigation, after taking consent from the victim and her father as per Ex.P-05, the victim was sent to CHC Chhuikhadan for examination, where she was examined by Medical Officer Dr. Leela Ramteke (PW-05) as per Exhibit P-13. An X-ray was conducted to ascertain the complainant's true age, and the report, Ex.P-14, was obtained. Subsequently, the complainant's vaginal slides, pubic hair, and light purple underwear were sealed and handed over to female constable Archana Tikka, No. 835, for FSL examination. The property was seized before the Investigating Officer as per Ex.P-24. During the investigation, a memorandum, Ex.P-30, was sent to the Court of Judicial Magistrate First Class, Chhuikhadan, to record the complainant's statement under Section 164 of the Code of Criminal Procedure (CrPC). The statement was recorded as per Ex.P-12. The Investigating Officer visited the scene and prepared a scene map, Ex.P-03, based on the witnesses' statements. A memorandum, Ex.P-31, was sent to the Tehsildar, Gandai, requesting the Patwari map of the scene. Then Patwari Irfan Khan 5 (PW-06) went to the spot and prepared the site map cum panchnama Ex.P-09. Statements of the victim and witnesses were recorded. 6. During investigation, on the production by the victim's father, the victim’s birth certificate and class 8th mark sheet were seized as per seizure memo Ex.P-06 and Ex.P-07 respectively. Thereafter, a memorandum Ex.P-26 was given to the Headmaster of her school for production of her dakhil kharij register. Then, on production by Headmaster Jairam Singh Meravi (PW-17), the original dakhil kharij register Ex.P-35 was produced as per Ex.P-27 and after retaining photocopy of the same as per Ex.P-35C, the original dakhil kharij register was returned back to the Headmaster on the ground that it was a public document. A memorandum of Ex.P-32 was sent for recording the statement of the victim under Section 161 CrPC, then the statement of the victim was recorded by lady sub-inspector Priyanka Paikra (PW-16) as per Ex.P-12. Similarly, the underwear worn by the accused at the time of the incident was seized as per Ex.P-25 and for examination of the accused's anatomy and underwear, an examination sheet Ex.P-17 was filled and sent to CHC Gandai for examination. Thereafter, when constable No. 1057, Manishankar Verma, brought the underwear of the accused from the medical officer and presented it, it was seized as per Ex.P-25. 7. During investigation, the accused was taken into custody and his confessional statement in front of witnesses was prepared as per 6 original Panchnama Ex.P-19. After that, on production of the accused, one red and black coloured pen drive of Sandisk company and one silver and white coloured mobile phone were seized as per seizure memo Ex.P-20 and one Samsung mobile phone was seized from the complaint as per seizure memo Ex.P- 08. On finding sufficient evidence against the accused, he was duly arrested in front of witnesses as per Ex.P-28 and information regarding the same was given as per Ex.P-29 to his family members. During the investigation, the personal computer operator of Lok Seva Kendra Gandai, Khemlal Sahu (PW-12), was questioned in relation to printing of obscene photographs of the accused and the victim, certificate Ex.P-23 was obtained under Section 65B of the Evidence Act, while the seized property was sent to the State Forensic Science Laboratory, Raipur for FSL, test report of retrieved data and seized mobile etc. was obtained from Cyber Lab Inspector Vikram Dhruv (PW-18) as per Ex.P-36 and after completing other necessary investigation, the charge sheet was presented for trial before the Court of Special Additional Sessions Judge, Khairagarh, District – Khairagarh- Chhuikhadan-Gandai (C.G.) as per Ex.P-33. 8. When the charges were duly framed against the accused under Sections 363, 366A, 376 (2) (j) (n), 376 (3), 509, 506 Part 1 of the IPC and Sections 3/4, 5(l)/6 and 13/14 of the POCSO Act and Section 67 of the IT Act, the accused denied having committed 7 the alleged offence. The plea of the accused was recorded in his own words. 9. So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 18 witnesses and exhibited 37 documents in support of its case. 10. When the accused was examined under Section 313 CrPC, he declared himself innocent and stated that he was falsely implicated due to enmity and gave evidence in his evidence, but no evidence in his defence was presented. 11. After appreciation of evidence available on record, the learned trial Court has convicted and sentenced the accused/appellant as mentioned in para 3 of this judgment. Hence, this appeal. 12. Ms. Sharmila Singhai, learned Senior Advocate appearing on behalf of the appellant vehemently argued that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt, and the findings recorded by the learned Trial Court are contrary to the evidence available on record. A careful appreciation of the prosecution case itself reveals several material infirmities which create serious doubt regarding the prosecution version. She further argued that the FIR was lodged on 31.03.2021, although the prosecution alleges that the incidents of sexual intercourse had taken place over a period of nearly two years and that the alleged circulation of obscene videos occurred on 09.03.2021 and 10.03.2021. While it is well settled that delay 8 in reporting sexual offences is not by itself fatal to the prosecution, such delay nevertheless assumes significance where the prosecution fails to furnish a satisfactory explanation and where the allegations relate to repeated incidents over a prolonged period. She also argued that the medical examination of the victim was conducted only after the lodging of the FIR, long after the alleged occurrences, and therefore the medical evidence does not conclusively establish the prosecution case of repeated forcible sexual intercourse. Furthermore, the prosecution relied upon the birth certificate, school records and radiological examination to establish the age of the victim, but it was incumbent upon the prosecution to prove the authenticity and evidentiary value of these documents in accordance with law. Regarding the age of the victim, there is a major discrepancy in the prosecution case itself as in birth certificate (not exhibited), her date of birth is recorded as 27.09.2004, whereas in her Class - 8th mark-sheet (Ex.P-7) and dakhil kharij register (Ex.P-35C), it is shown as 26.09.2005. 13. Ms. Singhai submitted that PW5 Dr. Leela Ramteke, who has medically examined the victim has specifically stated in her evidence that no internal or external injury was found on the person of the victim, though she was habituated to sexual intercourse, it was also found that there were no signs of recent sexual intercourse. She further submitted that Narendra Kumar Sahu (PW-10) and Leela Ram Dhurve (PW-11), the witnesses to 9 Ex.P-18 (Talashi Panchnama) have not supported the case of the prosecution. Even the evidence of Khemlal (PW-12) also does not give any credence to the prosecution case. It is further submitted that the prosecution has placed substantial reliance on electronic evidence, including the alleged obscene photographs, videos, WhatsApp messages, mobile phones and a pen drive allegedly recovered during the investigation. However, the prosecution was under a legal obligation to establish the authenticity, integrity and admissibility of such electronic evidence by proving an unbroken chain of custody, exclusive possession of the devices, and strict compliance with the statutory requirements governing electronic records. Mere seizure or recovery of a mobile phone or pen drive from the appellant does not automatically prove either the creation, possession or transmission of the alleged electronic material. Equally, the allegation that obscene videos were circulated in village WhatsApp groups has not been substantiated by reliable independent evidence from the alleged recipients or other persons who are stated to have received or viewed such material. The prosecution has also failed to establish that the alleged electronic material remained free from the possibility of tampering or manipulation from the stage of seizure until forensic examination. It is a settled principle of criminal jurisprudence that electronic evidence, unless properly proved in accordance with law, cannot form the sole basis for sustaining a conviction, particularly where such evidence constitutes the principal 10 incriminating circumstance against the accused. The appellant is, therefore, entitled to the benefit of such doubt, and the impugned judgment of conviction and order of sentence deserve to be set aside by this Hon'ble Court. 14. Per contra, Mr. S.S. Baghel, learned Government Advocate, appearing for the State/respondent supported the impugned judgment and submitted that the learned Trial Court has rightly appreciated the oral, documentary and scientific evidence available on record and has recorded a well-reasoned finding of guilt against the appellant. It is argued that the testimony of the victim is cogent, consistent and inspires confidence. Her version finds substantial corroboration from her statement recorded under Section 164 CrPC (Ex.P-12), the medical evidence, the documentary evidence regarding her age, and the electronic evidence collected during the course of investigation. It is further submitted that in cases involving sexual offences, particularly against a child, the sole testimony of the victim, if found trustworthy and reliable, is sufficient to sustain a conviction and does not require independent corroboration as a matter of law. The alleged delay in lodging the FIR has been satisfactorily explained by the prosecution. The victim was under continuous fear and intimidation as the appellant had allegedly threatened to make her obscene photographs and videos viral, and in fact circulated such material through WhatsApp, thereby causing immense trauma and social stigma. It is well settled that delay in 11 reporting sexual offences cannot be viewed with the same rigour as in ordinary criminal cases, particularly where the victim is a minor and is under psychological pressure and fear of social consequences. Learned State Counsel further submitted that the prosecution has conclusively established that the victim was below eighteen years of age on the date of the incident. The birth certificate, school records including the Class VIII mark-sheet (Ex.P-7) and the admission register (Ex.P-35C), coupled with the radiological examination, clearly establish her minority. The discrepancy pointed out by the appellant regarding the date of birth recorded in the birth certificate is merely a typographical or clerical error, as the consistent entries in the school records and other documentary evidence show the victim's date of birth as 26.09.2005, and there is no material to suggest that these public documents were fabricated or manipulated. The evidence of PW-5 Dr. Leela Ramteke that the victim was habituated to sexual intercourse and that no recent injuries were found does not discredit the prosecution case, particularly when the allegation pertains to repeated sexual assault over a considerable period and the medical examination was conducted after the incidents. The absence of injuries or signs of recent intercourse is neither unusual nor sufficient to negate the otherwise reliable testimony of the victim. It is further submitted that the electronic evidence has been duly proved in accordance with law. The mobile phones and pen drive were seized during investigation, sent for forensic examination, and the Cyber Forensic Laboratory report (Ex.P-36), 12 along with the certificate under Section 65B of the Indian Evidence Act (Ex.P-23), establishes the authenticity of the retrieved electronic data. Merely because some seizure witnesses turned hostile does not render the prosecution case unreliable, as it is settled law that the testimony of hostile witnesses is not to be rejected in toto and the prosecution case can validly rest upon the evidence of the Investigating Officer, scientific evidence and other reliable witnesses. It is further submitted that the evidence of the victim, the seizure of electronic devices, the forensic examination, and the testimony of the investigating officers collectively form a complete chain of circumstances establishing the guilt of the appellant beyond reasonable doubt. The learned Trial Court has rightly appreciated the evidence in its proper perspective, and no perversity, illegality or misappreciation of evidence has been demonstrated warranting interference by this Hon'ble Court. 15. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 16. The first question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 363 of the IPC ? 17. The appellant has been convicted for offence under Section 363 of the IPC, which is punishable for 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 13 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.” 18. 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. (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 14 leave out of such keeping and such taking was done without the consent of the lawful guardian. 19. The Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras1, took the view that if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so and held that if evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian and held as under:- “It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.” 20. 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 & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra), the 1 AIR 1965 SC 942 15 prosecution case itself is that the appellant and the victim were acquainted with each other while the victim was residing at her maternal grandfather's house for the purpose of her studies, and the alleged acts of sexual assault took place thereafter. There is no allegation in the FIR, the statements of the victim, or the evidence adduced before the Trial Court that the appellant removed or enticed the victim from the lawful custody of her guardian so as to attract the offence of kidnapping. The evidence on record further indicates that the victim used to meet the appellant during the course of their acquaintance, and the prosecution has not produced any material to establish that the appellant had taken her away from the lawful guardianship of her parents or maternal grandfather without their consent. Mere proof of the victim's minority or the commission of any other offence does not ipso facto constitute the offence of kidnapping under Section 363 IPC unless the essential ingredients of "taking" or "enticing" a minor from lawful guardianship are independently established. In the absence of any cogent evidence proving these foundational ingredients, the conviction of the appellant under Section 363 IPC cannot be sustained. Accordingly, this Court holds that the prosecution has failed to prove the charge under Section 363 IPC beyond reasonable doubt. The appellant is, therefore, entitled to acquittal of the said charge. However, this finding shall have no bearing on the consideration of the other charges, which are required to be examined independently on the basis of the evidence available on record. 16 21. The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 366A of the IPC ? 22. Having considered the entire evidence on record, this Court is of the opinion that the prosecution has failed to establish the essential ingredients of the offence punishable under Section 366A of the IPC. To bring home a charge under Section 366A IPC, the prosecution is required to prove that the accused induced a girl under the age of eighteen years to go from any place or to do any act with the intention, or with the knowledge that it was likely, that she would be forced or seduced to illicit intercourse with another person. Thus, the gravamen of the offence is the inducement of a minor girl for the purpose of her illicit intercourse with another person, and not with the accused himself. 23. In the present case, the prosecution case is that the appellant allegedly developed a relationship with the victim and thereafter committed sexual intercourse with her. There is neither any allegation in the FIR nor any evidence in the statements of the prosecution witnesses that the appellant induced or persuaded the victim to go from any place for the purpose of her illicit intercourse with any person other than himself. The prosecution has also failed to adduce any evidence to establish that the appellant intended or knew that the victim was likely to be forced or seduced to illicit intercourse with another person, which is an indispensable ingredient of Section 366A IPC. The evidence, even 17 if accepted in its entirety, relates only to the alleged acts committed by the appellant himself and does not satisfy the statutory requirements of Section 366A IPC. 24. The scope and ambit of Section 366A IPC has been authoritatively explained by the Hon'ble Supreme Court in Shyam and Another v. State of Maharashtra2, wherein the Court held that every ingredient of the offence must be strictly proved before recording a conviction and that criminal liability cannot be fastened unless the prosecution establishes the statutory requirements of the provision invoked. 25. It is a settled principle of criminal jurisprudence that penal statutes must receive strict construction and every ingredient of the offence must be proved beyond reasonable doubt. Since the prosecution has failed to establish that the alleged inducement, if any, was for the purpose contemplated under Section 366A IPC, namely, illicit intercourse with another person, no offence under Section 366A IPC is made out against the appellant. Consequently, the conviction of the appellant under Section 366A IPC cannot be sustained and is liable to be set aside. 26. The next issue which requires consideration is whether the prosecution has successfully established that the victim was below eighteen years of age on the date of the alleged incident. The determination of age of the victim assumes significance as the applicability of the provisions of the POCSO Act depends 2 (1995) 5 SCC 760 18 upon the victim being a "child" within the meaning of Section 2(d) of the POCSO Act. It is the settled position of law that the prosecution is required to establish the age of the victim by reliable and legally admissible evidence. 27. In the present case, the prosecution has relied upon the birth certificate, Class VIII mark-sheet (Ex.P-7), admission and withdrawal register (Dakhil Kharij Register) (Ex.P-35C), and the radiological examination report (Ex.P-14) for establishing the age of the victim. However, a perusal of the record reveals that the birth certificate, though seized during investigation, has not been exhibited before the Trial Court. Further, there is an apparent discrepancy in the date of birth mentioned in the documents relied upon by the prosecution. In the alleged birth certificate, the date of birth is stated to be 27.09.2004, whereas in the Class VIII mark- sheet (Ex.P-7) and the Dakhil Kharij Register (Ex.P-35C), the date of birth is recorded as 26.09.2005. The prosecution has not examined the authority who issued the birth certificate nor has it brought on record any explanation regarding such discrepancy. 28. It is trite that the date of birth recorded in school records cannot be accepted mechanically unless the source and correctness of such entry are duly proved. In Birad Mal Singhvi v. Anand Purohit3, the Hon'ble Supreme Court held that an entry regarding the date of birth in a school register is not by itself sufficient proof unless the person who made the entry or the person on whose information such entry was made is examined and the basis of 3 (1988) 4 SCC 604 19 such entry is established. The Court emphasized that the evidentiary value of such entries depends upon proof of the source of information on which the entry was made. 29. At the same time, where documentary evidence relating to age is available and is duly proved, such evidence is to be given preference over medical opinion. In Jarnail Singh v. State of Haryana4, the Hon'ble Supreme Court held that although Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 was framed for determining the age of a child in conflict with law, the same principle can be applied for determining the age of a victim of crime. The Court held that the age determination should ordinarily proceed on the basis of the matriculation certificate, or in its absence, the date of birth certificate from the school first attended, and thereafter other documents as prescribed. 30. Similarly, in Mahadeo s/o Kerba Maske v. State of Maharashtra5, the Hon'ble Supreme Court reiterated that for determining the age of a victim of sexual offence, the documentary evidence relating to date of birth should be given primacy, provided such documents are proved in accordance with law, and medical opinion can only be relied upon in the absence of satisfactory documentary evidence. 4 (2013) 7 SCC 263 5 (2013) 14 SCC 637 20 31. In the present case, the Class VIII mark-sheet (Ex.P-7) and the Dakhil Kharij Register (Ex.P-35C) have been produced through the school authorities and both documents consistently record the date of birth of the victim as 26.09.2005. The Headmaster, who produced the original register, has proved the relevant entries. The radiological examination report (Ex.P-14), though not conclusive, also does not contradict the documentary evidence relied upon by the prosecution. The discrepancy in the unexhibited birth certificate showing the year "2004" appears to be a clerical mistake and cannot override the duly proved school records. 32. Therefore, upon appreciation of the entire evidence relating to age, this Court is of the considered opinion that the prosecution has successfully established that the victim was below eighteen years of age on the date of the alleged incident. The objection raised by the learned counsel for the appellant regarding the discrepancy in the date of birth documents does not create a reasonable doubt regarding the minority of the victim, particularly in view of the consistent and duly proved school records. Accordingly, the victim is held to be a child within the meaning of Section 2(d) of the POCSO Act. 33. The next question which arises for consideration is whether the prosecution has been able to establish the offence punishable under Section 506 Part-I of the IPC against the appellant ? 21 34. Section 506 IPC provides punishment for criminal intimidation as defined under Section 503 IPC. In order to constitute an offence of criminal intimidation, the prosecution is required to prove that the accused threatened the victim with injury to her person, reputation or property, or to the person or reputation of someone in whom she was interested, with the intention of causing alarm or with the knowledge that such threat would cause alarm to her, or that the threat was intended to compel her to do or omit any act which she was not legally bound to do. 35. 35. In the present case, the prosecution has alleged that the appellant threatened the victim by stating that he would make her photographs viral and would kill her father and family members if she stopped talking to him. However, except for the statement of the victim, there is no independent and reliable evidence available on record to establish that such threats were actually extended by the appellant with the requisite intention of causing alarm. The prosecution has not examined any person who had witnessed the alleged threats or any other circumstance which could lend assurance to the said allegation. 36. It is also significant that the alleged threats were allegedly made during the period when the appellant and the victim were acquainted with each other and were communicating. The prosecution evidence does not establish that the alleged words, even if taken on their face value, were uttered with the intention of causing such alarm as contemplated under Section 503 IPC. A 22 mere statement expressing displeasure or an assertion made during a personal relationship, without proof of intention to cause alarm, would not by itself constitute criminal intimidation. 37. The Hon'ble Supreme Court in Manik Taneja and Another v. State of Karnataka6, held that the mere utterance of words does not constitute an offence of criminal intimidation unless the essential ingredient of intention to cause alarm to the complainant is established. Similarly, in Vikram Johar v. State of Uttar Pradesh7, the Hon'ble Supreme Court reiterated that to constitute an offence under Section 506 IPC, the threat must be such as would cause alarm to the person threatened and the intention of the accused in making such threat must be proved. 38. In the present case, the prosecution has failed to establish through cogent and reliable evidence that the appellant intended to cause alarm to the victim or that the alleged threats were of such nature as would satisfy the requirements of Section 503 IPC. The allegations of threat remain uncorroborated and are not supported by any independent evidence. The mere assertion of the victim, in the absence of supporting circumstances and considering the overall facts of the case, does not inspire sufficient confidence to sustain the conviction under Section 506 Part-I IPC. 6 (2015) 7 SCC 423 7 (2019) 14 SCC 207 23 39. Accordingly, this Court finds that the prosecution has failed to prove the essential ingredients of the offence of criminal intimidation punishable under Section 506 Part-I IPC beyond reasonable doubt. Therefore, the conviction of the appellant under Section 506 Part-I IPC cannot be sustained, and the appellant is entitled to acquittal of the said charge. 40. The next question which arises for consideration is whether the prosecution has been able to establish the offence punishable under Section 67A of the Information Technology Act, 2000 against the appellant ? 41. Section 67A of the Information Technology Act provides punishment for publishing or transmitting material containing sexually explicit acts in electronic form. To establish an offence under the said provision, the prosecution is required to prove beyond reasonable doubt that the accused had published or transmitted, or caused to be published or transmitted, material containing sexually explicit acts through an electronic medium and that such material is attributable to the accused. 42. In the present case, the prosecution has relied upon certain electronic devices, namely, mobile phones and a pen drive, and has alleged that obscene photographs and videos of the victim were transmitted through WhatsApp. However, mere seizure of electronic devices does not by itself establish the commission of an offence under Section 67A of the IT Act. The prosecution was required to establish, through legally admissible evidence, that the 24 alleged electronic material was actually present in the seized devices, that the same was created or transmitted by the appellant, and that there was an unbroken chain of custody from the stage of seizure till forensic examination. 43. Though the prosecution has relied upon the forensic report (Ex.P- 36) and the certificate under Section 65B of the Indian Evidence Act (Ex.P-23), the said evidence does not, by itself, establish the authorship and transmission of the alleged material by the appellant. The prosecution has not produced any independent witness who had received the alleged videos through WhatsApp or who could establish that the appellant had transmitted such material to any person or group. There is also no clear evidence on record establishing the source from which the alleged videos were uploaded, forwarded or circulated, or that the appellant was exclusively responsible for such transmission. 44. It is a settled principle of law that electronic evidence must be proved in accordance with the requirements of law and that the mere recovery of a device containing incriminating material is not sufficient unless the prosecution establishes its connection with the accused and proves that the accused was responsible for the alleged publication or transmission. The Hon'ble Supreme Court in Anvar P.V. v. P.K. Basheer8, held that electronic records are required to be proved in accordance with the statutory requirements of Section 65B of the Indian Evidence Act. Subsequently, in Arjun Panditrao Khotkar v. Kailash 8 (2014) 10 SCC 473 25 Kushanrao Gorantyal9, the Constitution Bench reiterated that compliance with Section 65B is mandatory for admissibility of electronic evidence and that the authenticity and reliability of such evidence must be established before placing reliance upon it. 45. Further, in Tomaso Bruno v. State of Uttar Pradesh10, the Hon'ble Supreme Court observed that electronic evidence may be of significant importance, but the Court must ensure that such evidence is properly proved and its evidentiary value is established in accordance with law. 46. In the present case, the prosecution has failed to prove the necessary link between the appellant and the alleged transmission of the electronic material. The evidence merely establishes the seizure and forensic examination of certain electronic devices but does not conclusively prove that the appellant published or transmitted the alleged sexually explicit material. 47. Thus, on an overall appreciation of the evidence, this Court finds that the prosecution has failed to establish the essential ingredients of Section 67A of the IT Act beyond reasonable doubt. The evidence available on record is insufficient to hold that the appellant was responsible for publishing or transmitting sexually explicit material in electronic form. Consequently, the conviction of the appellant under Section 67A of the Information Technology Act 9 (2020) 7 SCC 1 10 (2015) 7 SCC 178 26 cannot be sustained, and the appellant is entitled to be acquitted of the said charge. 48. The next question which arises for consideration is whether the prosecution has been able to establish the commission of aggravated penetrative sexual assault punishable under Section 5(l) read with Section 6 of the POCSO Act against the appellant ? 49. In the matter of Jaya Mala v. Home Secretary, Govt. of Jammu & Kashmir and others11, 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 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 11 AIR 1982 SC 1297 27 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.” 50. In Alamelu and Another Vs. State, represented by Inspector of Police12, 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:- "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 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." 52. 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 12 2011(2) SCC 385 28 not suffer from any basic infirmities or improbabilities which render it unworthy of credence. 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. 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 29 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.” 51. In the matter of Tilku Alias Tilak Singh V. The State Of Uttarakhand13, 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, 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 13 2025 INSC 226 30 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 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 31 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 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.” 52. On a careful consideration of the entire evidence available on record, this Court finds that the prosecution has failed to establish beyond reasonable doubt that the appellant committed the alleged acts by employing force, coercion, intimidation or against the will of the victim. The statement of the victim itself reveals that she was acquainted with the appellant while she was residing at her maternal grandfather's house for the purpose of studies and that they were communicating with each other through mobile phones. It is also evident from her statement that the relationship between 32 the appellant and the victim continued for some time and that they met each other on various occasions. The prosecution evidence does not establish that the appellant forcibly took the victim to any place or that the alleged physical relationship was established by use of force or threat. 53. The victim has stated that the appellant called her to a mango orchard and promised to marry her, pursuant to which physical relations were established between them. She has further stated that such acts were repeated on several occasions. The conduct of the parties, their prior acquaintance, continued communication and repeated meetings indicate that the relationship was not a case of forcible sexual assault but was a relationship arising out of mutual acquaintance and willingness. The prosecution has failed to bring on record any convincing evidence to establish that the appellant, from the inception of the relationship, acted with an intention to forcibly exploit the victim or obtained her physical intimacy by applying pressure or threat. 54. It is true that the victim has subsequently alleged that the appellant threatened her and threatened to circulate her photographs. However, the prosecution has failed to prove these allegations beyond reasonable doubt by producing reliable and independent evidence. The alleged threats and circulation of photographs have not been satisfactorily established through independent witnesses, recipients of the alleged electronic material or any other convincing evidence. The evidence of the 33 prosecution witnesses, particularly the witnesses relating to seizure and electronic material, does not provide sufficient corroboration to the allegations levelled against the appellant. 55. The Hon'ble Supreme Court in Uday v. State of Karnataka14, while considering allegations arising out of a relationship between the parties, held that the Court must consider the surrounding circumstances, conduct of the parties and the manner in which the relationship developed while appreciating whether the prosecution has proved the offence beyond reasonable doubt. Similarly, in Deepak Gulati v. State of Haryana15, the Hon'ble Supreme Court observed that the Court must distinguish between a case of forcible sexual assault and a case where the relationship between the parties was consensual and subsequently resulted in allegations due to failure of the relationship. 56. In the present case, the evidence led by the prosecution, when considered as a whole, does not inspire confidence to hold that the appellant committed the alleged offence by force or against the will of the victim. The possibility that the relationship between the appellant and the victim was consensual cannot be ruled out. It is a settled principle of criminal jurisprudence that if two views are possible on the basis of evidence available on record, the view favourable to the accused must be adopted. 14 (2003) 4 SCC 46 15 (2013) 7 SCC 675 34 57. The prosecution is required to prove its case beyond reasonable doubt and cannot succeed merely on the basis of suspicion or assumptions. In the present case, the prosecution has failed to establish the essential ingredients of the offences charged against the appellant. The material contradictions in the prosecution case, absence of reliable corroboration regarding the alleged threats and electronic transmission, and the circumstances indicating a consensual relationship create a reasonable doubt regarding the prosecution version. 58. Thus, on the basis of material available on record and evidence collected by the prosecution, it cannot be held that the prosecution has been able to bring home the offences under Sections 363, 366A, 506 Part-I of the IPC, Section 5(l)/6 of POCSO Act and Section 67 of the IT Act beyond reasonable doubt as evidence brought on record is not sufficient to bring home the offences against the appellant / accused herein. 59. As a fallout and consequence of the aforesaid legal analysis, the criminal appeal is allowed and the impugned judgment of conviction and order of sentence dated 12.09.2024 passed by the learned Special Additional Sessions Judge, Khairagarh, District – Khairagarh-Chhuikhadan-Gandai (C.G.) in Special Sessions Trial No. 16/2021 is hereby set aside. The accused / appellant is acquitted of the said charges levelled against him. He is in jail since 12.09.2024. He shall be set at liberty forthwith if no longer required in any other criminal case. 35 60. Keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, 1973 (Now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Proceure of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerend 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. 61. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Chandra