1 CGHC010093222023 2026:CGHC:42464 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 86 of 2023 State Of Chhattisgarh, Through Police Station - Civil Lines, District : Bilaspur, Bilaspur Chhattisgarh ... Appellant versus Akhilesh Agrawal Alias Bablu S/o Mannulal Agrawal Aged About 23 Years R/o Village Sila Shikhar Appartment, Ashok Nagar, Police Station – Sarkanda, District : Bilaspur, Chhattisgarh ... Respondent For Appellant/State : Ms. Vaishali Mahilong, Dy.G.A. For Respondent : Shri Ajay Rajwade and Shri Abhijeet Sarkar, Advocates. SB: Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board 29/09/2026 1. Pursuant to order dated 20/08/2026 bailable warrant issued against the respondent/accused has been served upon him and he in person present before this Court along with his counsels Shri Ajay Rajwade and Shri Abhijeet Sarkar. The GOURI MUDALIAR Digitally signed by GOURI MUDALIAR Date: 2026.10.05 14:44:14 +0530 2 respondent/accused has been identified by their counsel. With the consent of the parties, the appeal has been heard finally. 2. Present acquittal appeal has been filed by the appellant/State against the impugned order dated 27/11/2021 passed by learned Additional Sessions Judge (FTC) Bilaspur in Sessions Case No.82/2017 whereby the respondent/accused has been acquitted from the offence of Section 363 and 366 of the IPC. 3. The case of the prosecution, in brief, is that on 07/11/2016 the mother of the victim PW-2 lodged a missing report that her minor daughter is being kidnapped by the respondent/accused on 06/11/2016 when she had gone to a snack cart to eat pani puri. On the way the respondent/accused kidnapped her. The act of the respondent/accused was seen by her son and he tried to stop them but the respondent/accused did not stop his car and took her daughter away from there. FIR Ex.P-3 was registered against the respondent/accused for the offence under Section 363 of IPC and the police started investigation. During the investigation, the victim was recovered on 20/11/2016 from Jodhpur Rajasthan from the possession of the respondent/accused and a recovery panchnama Ex.P-4 was prepared in presence of the witnesses. The victim was sent for her medical examination to District Hospital, Bilaspur where PW-7 Dr. Neelima Sharma medically examined her and gave her report Ex.P-8. While medically examining the victim, doctor has not noticed any external injuries on her body. Two slides of 3 her vaginal swabs were prepared, sealed and handed over to police for it’s chemical examination. The victim was also referred to radiologist for age determination. With respect to the age and date of birth of the victim, the police has seized school register Ex.P-11 vide seizure memo Ex.P-7 and after retaining it’s attested true copy Ex.P- 11(c) original register was returned to the school. The victim was sent for her ossification test to the District Hospital, Bilaspur where PW-11 Dr. G.S. Kanwar conducted her ossification test and gave his report Ex.P-12. According to the ossification test report, the age of the victim is opined about 19 years. Spot map Ex.P-5 was prepared by police. Query report was also sent from the concerned doctor who gave the query report Ex.P-9 and opined that no definite opinion can be given regarding intercourse. The call detail report Ex.P-10 was also obtained by the police from the service provider company of the mobile number of the victim. The maruti car allegedly used in the commission of offence was seized vide seizure memo Ex.P-14. The respondent/accused was arrested on 22/11/2016. Statement of the witnesses under Section 161 of Cr.P.C. have been recorded. Statement of the victim under Section 164 of Cr.P.C Ex.P-1 was also recorded and after completion of usual investigation, charge sheet was filed against the respondent/accused before the learned Chief Judicial Magistrate, Bilaspur for the offence under Sections 363 and 4 366 of IPC. Case was committed to the court of Sessions Judge, Bilaspur from where it was again transferred to the learned trial Court for it’s trial. 4. Learned trial Court has framed charge against the respondent/accused for the offence under Section 363 and 366 of IPC. The respondent/accused denied the charge and claimed trial. In order to prove the charge against the respondent/accused, the prosecution has examined as many as 14 witnesses. Statement of the respondent/accused under Section 313 of Cr.P.C. have also been recorded in which he denied the circumstances that appears against him, pleaded innocence and submitted that he has been falsely implicated in the offence. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has acquitted the respondent/accused from the alleged offence of Section 363 and 366 of IPC which is under challenge in the present appeal against acquittal. 5. Learned counsel for the appellant/State would submit that the prosecution has proved it’s case beyond reasonable doubt but for minor omissions or contradictions, the evidence of the prosecution witnesses are reliable and sufficient to hold the respondent/accused guilty of the alleged commission of offence. The victim was minor on the date of incident which has been proved by the prosecution by leading cogent evidence producing school records. The ossification report is only an 5 opinion about the age of the victim but the date of birth recorded in the school record cannot be disbelieved. Said school record has been proved by PW-10 who is the Head Mistress of the school who proved the date of birth of the victim and according to the date of birth recorded in the school register, the victim was found to be minor on the date of incident. The respondent/accused had allegedly kidnapped the victim which has been witnessed by PW-3 who is the brother of the victim. The respondent/accused kept the minor victim away from her lawful guardianship from 06/11/2016 to 21/11/2016 and she was recovered from the possession of the respondent/accused from Jodhpur Rajasthan. There is no explanation from the respondent/accused about the possession of minor victim with him. Thus, even if the victim could not raised her alarm, it cannot be said that she voluntarily accompanied the respondent/accused and no offence is made out rather the respondent/accused has kept the minor victim with him and kept her away from her lawful guardianship. All the ingredients of Section 363 and 366 of IPC are duly satisfied by the prosecution by leading cogent and clinching evidence yet the learned trial Court has acquitted the respondent/accused holding that the prosecution has failed to prove that she was minor and less than 18 years of age on the date of incident as well as the victim herself accompanied the respondent/accused voluntarily, the impugned judgment 6 passed by the learned trial Court suffers from illegality and perversity and the same is liable to be set aside and the respondent/accused is liable to be convicted. 6. On the other hand, learned counsel appearing for the respondent/accused opposes the submission made by learned counsel for the appellant and have submitted that the victim was major on the date of the incident as has been opined by the radiologist on radiological examination and he opined that she is aged about 19 years. The victim was major girl and she voluntarily eloped with the respondent/accused. Both of them had visited various places, in all that places the victim had not raised any alarm and has not made any complaint to anyone. She was having her own mobile phone with her but she has not informed it to her parents. The conduct of the victim itself demonstrates that she willingly accompanied the respondent/accused, therefore no offence of kidnapping or keeping away her away from the lawful guardianship is made out against the respondent/accused. The learned trial Court has rightly appreciated the evidence and acquitted the respondent/accused which does not suffer from any perversity or illegality and acquittal appeal is liable to be dismissed. 7. I have heard learned counsel for the parties and perused the record of the trial Court. 7 8. First and foremost question arises for consideration would be age of the victim as to whether she was minor on the date of incident and less than 18 years of age or not. 9. The prosecution has relied upon two documents i.e. school record Ex.P-11(c) and ossification test report Ex.P-12. The school record Ex.P-11(c) is sought to be proved by PW-10 who is the Head Mistress of the school. She stated in her evidence that the police has seized the school record with respect to date of birth of the victim vide seizure memo Ex.P-7 and the original school register is Ex.P-11 and after retaining it’s attested true copy Ex.P-11(c) the original register was returned to the school. As per the school record, the date of birth of the victim is 23/12/1998. In cross-examination she shown her ignorance as to whether the victim had got admitted in pre- nursery class, she has not brought with her the form filled up at the time of her admission in the school. She stated that the date of birth of the victim is recorded in the school on the basis of her birth certificate. From the evidence of this witness, it transpires that she was posted as Head Mistress of the school from 2015 to 2019 whereas as per the school register Ex. P-11(c) the victim was admitted in class-1 in the school on 10/07/2002 and at the time of her admission in the school this witness was not posted there. Even the basis on which the date of birth of the victim is recorded in the school register has not been produced by the prosecution. 8 10.The admissibility and the evidentiary value of the school register has been consistently considered by the Hon’ble Supreme Court in the case of Alamelu and Another Vs. State, represented by Inspector of Police, reported in 2011 (2) SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the victim in the absence of any material on the basis of which the age was recorded. 11. In paragraphs 40 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under : “40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as 9 well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P. [(2006) 5 SCC 584] held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 12. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under : 10 “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the 11 basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 12 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.” 13. In case of P. Yuvaprakash Vs. State represented by Inspector of Police, reported in 2023 (SCC Online) SC 846, Hon’ble Supreme Court has held in para 14 to 17 as under : “14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW- 3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect 13 to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15.In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. [2022 (8) SCC 602] this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: “20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.” 14 16.Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors [2019] 9 SCR 735] that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal [(2012) 9 SCR 224], this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.” 14. Another piece of evidence with respect to the age of the victim is the ossification test report Ex.P-12 in which the doctor 15 has opined that the victim is aged about 19 years or above. When the doctor has found the age of the victim is 19 years or above there is no any other evidence and the doctor himself has opined that the victim is aged about 19 years or above as per the ossification test report, the respondent/accused is further entitled for error of margin of two years in positive side that the victim is definitely not less than 18 years of age on the date of the alleged incident. Considering the ossification test report which is based on the radiological examination of the victim and also the evidence with respect to the school record, it cannot said that the victim was minor or the prosecution has proved her age that she was minor on the date of the incident and less than 18 years of age. The learned trial Court has also appreciated the evidence and has held that the prosecution has failed to prove that the victim was less than 18 years of age which in the opinion of this Court is based on proper appreciation of evidence available on record. 15. So far as the offence of kidnapping is concerned, I again re-appreciate the evidence of the victim PW-1. She stated in her evidence that on the date of incident at about 4 pm the respondent/accused made her telephonic call and asked her to go to visit places and came to her house. Though she refused to go with him but she accompanied him in his car. When she was going with the respondent/accused, her brother saw them and tried to stop the car but the respondent/accused did not 16 stop the car. The respondent/accused took her to Pendra by the said car and they took a room in a hotel in the night, they made physical relation and in the next morning he took her to Maihar there also they stayed for whole of the day, then they had gone to Katni by train, they stayed there at Katni in a hotel. At Maihar the respondent/accused applied vermilion on her head and treated her as his wife. Thereafter, the respondent/accused took her to Ajmer there also they stayed for whole of the day, thereafter he took her to Jodhpur in a charitable ashram, they stayed there for about 2-3 days and in between that her mother along with the police personnel came there and caught them hold. In the cross-examination, she admitted that while travelling with respondent/accused she had not made any complaint to anyone during the entire journey. Even in the hotel where they stayed she had not made any complaint to anyone. She has not made any allegation of sexual harassment with her. When the victim was found to be major and she accompanied the respondent/accused without raising any objection or complaint to anyone, they visited various places from 06/11/2016 upto 21/11/2016, it cannot be said that the respondent/accused took her away against her will or consent rather it is the victim who voluntarily accompanied the respondent/accused on her own will. 16. PW-2 is the mother of the victim. She stated in her evidence that at about 5 pm on the date of the incident her son 17 informed through mobile phone that the victim had gone with the respondent/accused in a car. When the victim did not return, she made police complaint Ex.P-3. After 10-15 days the police recovered the victim from the ashram from Jodhpur and recovery panchnama Ex.P-4 was prepared. Her daughter informed her about the act of the respondent/accused that she was being sexually exploited by him. There are material discrepancies brought by the defence with that of her 161 Cr.P.C. statement Ex.D-1. Even her evidence is based on the information disclosed by the victim PW-1. When the victim herself is found to be voluntarily accompanied the respondent/accused, her evidence does not support the prosecution case. 17. PW-3 is the brother of the victim who stated in his evidence that on the date of incident at about 4-4.30 pm when he was standing at Milan Chowk he saw that the respondent/accused is taking his sister in his car. He tried to stop him but the respondent/accused did not stop his car. In his evidence it is not there that the victim is raising alarm or protesting to go with the respondent/accused but she accompanied the respondent/accused in his car which also gives support to the defence version that the victim herself accompanied the respondent/accused on her own will. 18. PW-8 is the hotel owner at Pendra Road. He stated in his evidence that at the time of the incident, the victim along with 18 the respondent/accused came to his hotel at Pendra Road and obtained a room there. He provided a room to them after obtaining their identity card and in the next morning they left the room and went away. Nothing has come in his evidence that the victim had made any complaint to him that she was being kidnapped by the respondent/accused or he could not notice any abnormal conduct of the victim that she is being exploited by the respondent/accused. 19. From the judgment passed by the learned trial Court, it clearly transpires that the learned trial Court has meticulously examined all the evidence available on record and after having considered the age of the victim that the prosecution has failed to prove that the victim was less than 18 years of age and she voluntarily accompanied the respondent/accused, acquitted the respondent/accused by giving him benefit of doubt. The judgment passed by the learned trial Court is well reasoned judgment and does not suffer from any perversity or illegality which warrants interference by this Court in an acquittal appeal. 20. Applying the law governing the scope of interference in an appeal against acquittal, the Hon'ble Supreme Court in the case of "State of Rajasthan Vs. Kistoora Ram" reported in 2022 SCC Online SC 984, has held as follows:- "8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to 19 interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all." 21.Further, in case of “Jafarudheen and Others Vs. State of Kerala”, reported in 2022 (8) SCC 440, the Hon’ble Supreme Court has considered the scope of interference in appeal against acquittal in judgement at para 25, which reads as under :- “25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.P.C., the Appellate Court has to consider whether the Trial Court’s view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that ensures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.” 22.After considering the material available on record as well as the well-reasoned judgment passed by the learned trial Court and being very much conscious of the existing legal position as held by the Hon'ble Supreme Court in the case of Kistoora Ram (Supra) and Jafarudheen (Supra), that in an appeal against acquittal, if the view taken by the trial Court is a possible and plausible view on the basis of the evidence available on record, the Appellate Court should be slow in interfering with the order of acquittal and the same cannot be reversed merely because another view is possible. In the present case, the findings recorded by the learned trial Court are based upon proper appreciation of the evidence and constitute a plausible 20 view. I, therefore, of the considered opinion that the judgment passed by learned trial Court is just and proper and does not call for any interference. 23. For the foregoing reasons, the acquittal appeal is devoid of merits and is hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge gouri