1 CGHC010163842005 2026:CGHC:36613 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 386 of 2005 Reserved on 06.07.2026 Delivered on 17.08.2026 Vijay Kumar S/o. Kushal Prasad, Aged about 18 years and 6 months, Occupation - Agriculturist, R/o. Semariya, P.S. Pamgarh, Tahsil Pamgarh, District Janjgir Champa (CG) ... Appellant(s) versus State Of Chhattisgarh through Station Incharge, Pamgarh, District Janjgir Champa (CG) ... Respondent(s) For Appellant (s) : Mr. Parag Kotecha, Advocate For Respondent(s) : Mr. Shailesh Puriya, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment 1.This criminal appeal under Section 374 of Cr.P.C. has been filed against the judgment dated 23.03.2005 passed by Additional Sessions Judge, SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2026.08.18 10:21:51 +0530 2 Janjgir Session Division Bilaspur in Sessions Trial No. 388 of 2004, whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentence U/s. 363 of the IPC RI for 5 years and fine of Rs. 500/-in default of payment of fine to further undergo additional RI for 1month. U/s. 366(a) of the IPC RI for 5 years and fine of Rs. 500/-in default of payment of fine to further undergo additional RI for 1month. U/s. 376 of the IPC RI for 7 years and fine of Rs. 500/-in default of payment of fine to further undergo additional RI for 1month. (Fine amount has already been deposited. All sentences are directed to run concurrently). 2. Facts of the case, in brief, are that, victim’s father has lodged a missing report No. 17 of 2004 (Ex.P-17A) on 13.08.2004 at Police Station-Pamgarh stating therein that he along with his wife went to the agriculture field and his minor daughter aged about 14 years was alone in the house. At about 1.30 PM, when he returned the house, his daughter was not available in the house, he tried to find out the victim but he could not trace her. it was informed to him that appellant Vijay Surayvanshi is also not available in the village and took her daughter to another village without informing him from his lawful guardianship. During search on 17.08.2004, the father of the victim went to village Madai wherein his daughter informed him that the appellant allured her, on the pretext of marriage and committed sexual 3 intercourse with her. On 20.08.2004, the victim along with her father went to Police Station- Pamgarh and lodged FIR (Ex.P-8) bearing Crime No. 283 of 2004 under Sections 363, 366 and 376 IPC alleging that the appellant committed sexual intercourse with her on the pretext of marriage. The victim was thereafter subjected to medical examination vide Ex.P-7. The accused was arrested and also medically examined-. The clothes worn by the victim along with slid were seized vide (Ex.P-1 and Ex.P-3). The undergarment of the accused was also seized vide (Ex.P-13). During medical examination of the victim, vaginal slides were prepared and the same were sent to the Forensic Science Laboratory, Raipur, for chemical examination vide Ex.P-20 wherein undergarment of the victim, slide and undergarment of the accused sperm were found. But they are not found for sufficient for cerelogical test. After completion of the investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Janjgir, who in turn committed the case to the Court of Sessions Judge, Janjgir which was registered as Sessions Case No. 388 of 2004. 3. The prosecution in order to prove the guilt of the appellant examined 14 witnesses, Firatram (PW-1), Victim (PW-2), Phool Bai (PW-3), Ashok Kumar (PW-4), Manoj Kumar (PW-5), Baharatinbai (PW-6), Sudama Bai (PW-7), Dr. Rama Ghosh (PW-8), B.L. Pandey (PW-9), Dr. B.K. Shukla (PW-10), Vijay Kumar Tiwari (PW-11), Head constable Badri Prasad Kaushik (PW-12), Nawal Kumar Singh (PW-13), B.S. Bhutia (PW-14) and exhibited the documents from (Ex. P-1 to Ex.P-18). The appellant examined Basanti Bai 4 (DW-1) and Harkunwar (DW-2) in his support. Statement of the accused/appellant was recorded under Section 313 CRPC in which he denied the allegation made against him, pleaded his innocence and false implication in the case. 4. After hearing the parties, learned Special Judge on the basis of material on record and upon considering the statements of the witnesses has passed the judgment of conviction and order of sentence against the appellant as mentioned in above. Record of the case demonstrates that the accused remained in jail from 20.08.2004 to 22.8.2006 and he has been released by this Court on 22.08.2006 thus he remained incarceration for more than 2 years. Being aggrieved with the judgment of conviction and order of sentence, the appellant has filed this appeal. 5. Learned counsel for the appellant would submit that the prosecution has not proved its case beyond reasonable doubt and without there being any iota of evidence, the trial Court has convicted the appellant and from the evidence of victim, she does not inspire confidence, as such the learned Trial Court erred in convicting the appellant. The learned Trial Court failed to properly consider that the victim (P.W.-2) was more than 16 years of age at the time of the alleged incident. The surrounding circumstances, her conduct and the overall facts of the case clearly indicate that she had voluntarily consented to accompany of the appellant and engage in the alleged act. In such circumstances, the conviction of the appellant under Section 376 IPC is wholly unwarranted. He would further submit that there are omissions and 5 contradictions in the prosecution witnesses which is overlooked by the trial Court. Learned counsel for the appellant would submit that the prosecution has not proved its case beyond reasonable doubt. He would further submit that the Police have not recovered the victim from the possession of the appellant and the victim was in love affair with the appellant. The prosecution has not been able to prove the ingredient of offence under Sections 363, 366, 376 of the IPC and would pray for setting aside the judgment of conviction and order of sentence. To substantiate his submission, he would refer to the judgments of Hon’ble Supreme Court in the cases of Jinish Lal Sah vs. State of Bihar in Criminal Appeal No. 600 of 2002 decided on 20.12.2002, Nehnu Ram vs. State of Rajasthan and Ors. in Criminal Appeal No. 320 of 2019 decided on 20.02.2019, Birka Shiva v. State of Telangana reported in 2025 SCC Online SC 1452, Tilku alias Tilak Singh vs. State of Uttarakhand reported in 2025 INSC 226 and the judgment of Delhi High Court in the case of Vicky Sain v. State reported in 2020 SCC Online Del 3130. 6. On the other hand, learned counsel for the State supporting the impugned judgment would submit that at the time of incident age of the victim was 15 years 3 months. Statement of the victim is sufficient to prove the guilt of the appellant, as she has in clear terms deposed the manner in which appellant has committed the offence. He would further submit that it is trite law that the conviction can very well be recorded on the basis of sole testimony of the victim provided such testimony inspires confidence and in the present case 6 the statement of the victim inspires confidence and would pray for dismissal of the appeal. 7. I have heard learned counsel for the parties and perused the records. 8. Considering the submissions made by the parties, the point emerged for determination by this Court are;- (I) whether the prosecution was able to prove that the victim was below 16 year or not. (ii) Whether the prosecution was able to prove beyond reasonable doubt that the appellant is liable to be convicted for commission of offence under Sections 363, 366 (a) of the IPC ? Submission and discussion on point No.1. 9. The submission regarding age of the victim below 16 years is being considered by this Court. 10. The prosecution has examined Nawal Kishore Singh (PW-13) who has stated that in the Dakhil Kharij Register (Ex.P-18) date of birth of the victim was mentioned as 12.05.89 and the same was recorded by Balkaran Prashad Kaushik. The said witness has further deposed that since he has worked with him for last 30 years, as such he is aware of his handwriting and signature, but In the cross-examination, he has admitted that he is unable to state that on what basis, entries have been made in the register and also admitted that whatever information provided by the parents with regard to date of birth are kept in the separate file. 11. The prosecution has also placed on record Kotwar register (Ex.P-5) to prove the date of birth of the victim as 6.5.1989 and also examined Sudamabai 7 (PW-7) who is wife of late Kotwar. As the original Kotwar who has written the date of birth of the victim has expired and in his place Sudamabai (PW-7) who is wife of original Kotwar who was was working as Kotwar has been examined by the prosecution.The said witness in her cross-examination has admitted that during the life time of her husband she never interfered in day to day functioning of her husband as Kotwar and also admitted that in Ex.P-5 as to how the entry has been written and under whose instruction it has been written is not known to her. She has also admitted that she has not entered the name of the victim in the register. 12. Father of the victim (PW-1) in his evidence has admitted in the cross examination that he has not admitted the victim in the school but his father might have gone for admission of the victim then he cannot say. Similarly, mother of the victim (PW-3) has admitted in the cross-examination, that she did not tell whether PW-7 has written the date of birth of the victim or not, cannot be said by her. 13.The record of the case would show that the prosecution has neither examined the supporting documents by which the entries have been made in the Dakhil Kharij register showing age of the victim nor the person who can prove the entries made in the Kotwar register, in the eventuality of non availability of subscriber of the record on account of death of Kotwar which is requirement of law to prove the entries made in the records which have been maintained in the course of official duty. The same is not relevant statement of fact. Section 35 of the Indian Evidence Act equivalent to Section 29 of the 8 Bharatiya Sakshya Adhiniyam (BSA), provides that an entry in any public or other official book, register or (record or an electronic record) stating a fact in issue or relevant fact and made by public servant in the discharge of his official duty or by any other person in performance of duty specifically enjoined by the law of the country in which such book, register or (record or electronic record) is itself a relevant fact. Therefore, it is incumbent upon the prosecution either to place on record other supporting evidence to prove the date of birth recorded in Dakhil Kharij register or in absence of Kotwar who has made entry with regard to date of birth of the victim in the Kotwar register by examing any person as witness who is aware of the entry made in the register which prosecution miserably failed to do. The evidence of PW-7 further demonstrates that the said witness in unequivalent terms has admitted in the cross-examination that she is not aware how her late husband has made entry in the Dakhil Kharij register. Thus from the analysis of these evidence and provision of Section 35 of the Indian Evidence Act, it is quite vivid, that the prosecution is unable to prove the age of the victim was below 16 years at the time of incident. 14. The view of this Court is fortified from the judgment of Hon’ble Supreme Court in the case reported in case of Manak Chand Alias Mani vs. State of Haryana reported in (2024) 20 SCC 561 wherein the Hon’ble Supreme Court has held as under:- 18. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the 9 testimony of the person making the entry or the person who gave the date of birth. “14.…The date of birth mentioned in the scholar’s register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar’s register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar’s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. 19. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case. 15. From the appreciation of evidence of PW-1 (father) and mother (PW-3) of the victim, it is quite vivid that they have not stated exact date of the victim. The father of the victim has also admitted that grandfather of the victim has informed Kotwar Darshanlal regarding date of birth of the victim who has also not been examined by the prosecution. Learned trial Court while recording the age of the victim as below 16 years has given the reason which is neither supported from the documentary evidence nor the oral testimony of the victim and has committed illegality in relying upon Dakhil Kharij register Ex.P-18 and accordingly it has recorded the age of the victim is above 15 years but less than 16 years. This finding suffers from perversity, illegality 10 against Section 35 of the Indian Evidence Act, as such the finding regarding the age of the victim that she was below 16 years deserves to be set aside and accordingly it is set aside. Consequently, point No. 1 is answered in favour of the appellant. 16. Since the age of the victim is held to be above 16 years, now this Court is examining whether the victim was subjected to rape or act committed by the appellant with the victim is consensual or not. 17. To appreciate this point, this Court has to consider the evidence of the victim or the medical evidence produced by the prosecution. The victim (PW-2) in her cross-examination has admitted that when the accused has taken her to village Madai via Pamgarh which goes through from his village wherein she has not informed anybody that the accused has taken her to forcefully. She has also admitted that she has not informed that the appellant has taken her by alluring forcefully to anyone who is working in the field. She has also admitted in para-8 at village Madai where the accused her kept her in the residential area other people were also residing there and also stated that for attending the call of nature she used to go to the field but she has not informed anybody that she was taken forcefully by the appellant. She has also admitted that the accused and herself are also of different community and also admitted that she has informed her age to be 15 years by guess work. 18. The prosecution for proving commission of offence of rape has examined Dr. Rama Ghosh has stated in the examination-in-chief, that she has not seen 11 external or internal injury on the private part of the victim. In her opinion, the victim was habitual to sexual intercourse. In cross- examination she admits that during medical examination of the victim she did not find any symptom of forcible sexual intercourse on her body. She has prepared slide and handed over to the constable for chemical examination (Ex.P-7). She has also stated that in case of forceful rape possibility of injury on the body cannot be ruled out. 19. The prosecution has also examined Dr. V.K. Shukla, who has examined the accused has admitted in the cross-examination that there is possibility of injury on the private part or face of the person at the time of commission of offence of rape and also admitted that there is possibility of flow of sperm in the youth due to medical illness or excitement. 20. The prosecution has also sent undergarment of the victim, accused and slide of the victim for chemical analysis. The FSL has given its report Ex.P-22 which says that in Article A, B and C human sperm were found but in Article A and C, they are not sufficient for serological test which is conducted to identify bodily fluids, determine their human origin, and prepare the sample for DNA profiling to link the chain commission of rape. The report further suggests that sperm is of not sufficient quality to conduct for matching of DNA profiling. Thus, in absence of any such medical evidence connecting the circumstances for commission of offence of rape, particularly in absence of oral testimony of victim which is not of sterling quality commission of offence 12 of rape cannot be held that the prosecution has proved the offence of rape beyond reasonable doubt for affirming the conviction of the appellant. 21. From analysis of the evidence of the victim, it is quite vivid that there is a lot of opportunity for the victim to run away from the hands of the appellant or she can make hue and cry while going by bus and even she can run away when she attends the call of nature. Even the victim has not stated in her evidence that she remained in custody of the appellant for the days she remained with the appellant. Thus is it quite vivid that the victim is a consenting party supported with the fact that her age was not proved below 16 years at the time of commission of offence, therefore, no other conclusion can be drawn except that the victim is a consenting party. The Hon’ble Supreme Court in case of Kaini Rajan vs. State of Kerala {(2013) 9 SCC 113} has held as under :- 22.“12. Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if otherefore, no other conclusion can be drawn except that the victim is a consenting party. The Hon’ble Supreme Court in case of Kaini Rajan vs. State of Kerala {(2013) 9 SCC 113} has held as under :- “12. Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done 13 without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of denly based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances”. 23. Thus from the appreciation of the evidence, material on record and considering the law on the subject, this Court is of the view that the victim was a consenting party as such the learned trial Court was not justified in convicting the appellant for commission of offence under Section 376 of the IPC, therefore, the appellant deserves to be acquitted from the charge levelled against him under Section 376 of the IPC by granting benefit of doubt. 24. So far as conviction under Section 363 and 366 (a) of the IPC is concerned, the testimony of the victim (PW-2), duly corroborated by the testimony of father (PW-1) and mother (PW-3), clearly establishes that in absence of father and mother of the victim, the appellant allured the victim on the pretext of marriage and took her away from village Semariya to village Madai with prior permission of her guardian and the victim returned to her village along with father. The act of taking the victim who was below 18 years has been taken away from her lawful guardians without their consent constitutes the 14 offence of kidnapping under Section 363 IPC. Further, the circumstances indicate that the accused induced the victim to accompany him with the intent of having illicit relations, thereby attracting the offence under Section 366 (a) of the IPC. Thus, prosecution has successfully proved offence under Section 363 and 366 of the IPC beyond reasonable doubt, as such the learned Trial Court has not committed any illegality in convicting the accused for the offences under Sections 363 and 366 (a) of the IPC. Accordingly, the conviction of the appellant for these offences deserves to be affirmed and is hereby affirmed. 25. Now this Court is examining further submission of learned counsel for the appellant that mitigating factors for reducing the sentence are available, as such he would pray for reducing the sentence to the period already undergone by the appellant is being considered by this Court. Learned counsel for the appellant would submit that the appellant has already undergone incarceration for more than 2 years and the mitigating circumstances are available as the incident took place way back in the year 22 years age in the year 2004 and 22 years have already been elapsed i.e. prior to the amendment which was brought in force in the year 2013 and the age of the appellant was 18 years at the time of incident, now at present the appellant is aged about 40 years and settled in the life with his family. If the appellant is directed to send to incarceration for completing the entire sentence as awarded by the trial Court that will not only ruine his life but his 15 entire family will adversely be affected, therefore, he would pray for reducing the sentence to the period already undergone by the appellant. 26. On the other hand, learned counsel for the State opposes the submission and would submit that the appellant has kidnapped the minor girl, therefore, conviction as awarded by the trial Court cannot be found faulty and would pray for rejection of the prayer for reducing the sentence to the period already undergone by the appellant. 27. Before considering the submission made by the parties, it is expedient for this Court to briefly survey the law on the mitigating factors as considered by the Hon’ble Supreme Court. The Hon’ble Supreme Court in latest judgment reported in 2026 INSC 720 in the case of Essan vs. State of National Capital Territory of Delhi has held as under:- 6.4 When a sentence is imposed on an offender, it is done so with tri- fold purpose i.e. punitive, deterrent and protective. The overall objective is to rid the society of criminal proclivity. The same is done by ensuring that the sentence imposed is proportional to the offence or in other words not overly influenced by the possibility of reformation and instead, striking a judicious balance between the interest of the victim, society and the accused, after following the due process of law. We have considered a number of other judgments also inter-alia Allauddin Mian v. State of Bihar (1989) 3 SCC 5; Navas v. State of Kerala (2024) 14 SCC 82, Sevaka Perumal v. State of T.N (1991) 3 SCC 47; and Parsuram v. State of M.P. (2019) 8 SCC 382. The following aspects reveal themselves when viewed from the lens of imposition of sentence. It must be in accordance with the nature and gravity of the crime; (a) Be in accordance with the nature and gravity of the crime (b) Adequately protect the interest of the society; (c) Take into account the deterrent purpose of punishment; (d) Consider the motive behind the crime, if any; (e) Give due weight to the conduct of the accused; 16 (f) Examine whether the crime in question was pre-meditated or not; (g) Keep in view the age of the accused and whether he has engaged in any similar offence in past for which he has been duly convicted (h) Account for the number of victims of the offence; (i) Not consider the religion, race, caste or creed of the offender as a factor; (j) Consider the possibility of reformation of the accused. It is the duty of the State to establish that the same does not exist; and (k) The abuse of trust or misuse of personal relationship, if any. The facets identified by us above are illustrative and not exhaustive. A holistic view of the entire case must be taken in the attending facts of each case. Considering all these factors among others, the foremost duty of the Court is to assess the evidence in a given case; imposing just and adequate punishment upon the accused. 28. Considering the submission made by the parties, law on the subject and also considering the fact that the incident took place in the year 2004 and more than 22 years have already been elapsed the victim and the appellant must have settled their life, as such there are mitigating facts available on record to reduce the sentence to the period already undergone by the appellant. Accordingly, it is held that the appellant’s conviction for commission of offence under Section 363, 366 (a) of the IPC is affirmed. However, the sentence is reduced to the period already undergone by the appellant which is 2 years. 29. Accordingly, the appeal is allowed in part. The conviction and sentence of the appellant for the offence punishable under Section 376 of the Indian Penal Code are hereby set aside, and the appellant is acquitted of the said charge and the conviction of the appellant under Section 363, 366 of the Indian 17 Penal Code, as recorded by the learned Trial Court, is hereby affirmed. But the sentence is reduced to the period already undergone by the appellant. 30. The appellant is reported to be on bail. His bail bonds stand discharged in view of the provisions of Section 480 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). 31. With the aforesaid modifications, the appeal is partly allowed. Sd/- (Narendra Kumar Vyas) Judge santosh