Chattisgarh High Court
Ramu Yadav vs State Of Chhattisgarh on 5 August, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
CGHC010043832023 2026:CGHC:34099-DB
Digitally signed
by SAGRIKA
SAGRIKA AGRAWAL NAFR
AGRAWAL Date:
2026.08.07
12:13:31 +0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 370 of 2023
Ramu Yadav S/o Govind Yadav Aged About 25 Years R/o Ambenagar Ward
No. 27, Police Station Heera Nagar, District : Indore, Madhya Pradesh
... Appellant(s)
versus
State Of Chhattisgarh Through Station House Officer, Police Station Guroor,
District : Balod, Chhattisgarh
... Respondent(s)
(cause title taken from CIS)
For Appellant (s) : Mr. Siddharth Pandey, Advocate
For Respondent(s) : Mr. S.S. Baghel, Govt. Advocate
Hon’ble Mr. Ramesh Sinha, Chief Justice
Hon’ble Mr. Ravindra Kumar Agrawal, Judge
Order on Board
Per Ramesh Sinha, Chief Justice
05.08.2026
1. Heard Mr. Siddharth Pandey, learned counsel for the appellant. Also
heard Mr. S. S. Baghel, Govt. Advocate for the Respondent/ State.
2. The present criminal appeal has been filed by the appellant under
Section 374(2) of Code of Criminal Procedure against the impugned
2
judgment of conviction and sentence dated 26.12.2022 passed by
learned Special Judge (POCSO Act, 2012) Additional District and
Sessions Judge, Balod, (FTSC) District- Balod (CG) in Special
Sessions Case (POCSO) No. 55/2019 whereby the appellant has been
convicted and sentenced in the following manner:-
S.No Conviction Sentence
1. Under Section 376 (2)(झ) Life Imprisonment & fine of Rs. 3000/- in
(ढ) of IPC default of fine additional R.I. for 03
months.
2. Under Section 363 of IPC R.I. for 3 years and fine of Rs. 1000/- in
default of payment of fine additional R.I.
for 1 month.
3 Under Section 366 of IPC R.I. for 5 years and fine of Rs. 2000/-, in
default of payment of fine further R.I. for 2
months.
All the sentences shall run concurrently.
3. The case of the prosecution is that PW/2, the father of the victim,
lodged a missing report on 27.02.2019 stating that on 26.02.2019, after
returning from his agricultural field, he found that his minor daughter
had not returned home. Despite searching for her in the
neighbourhood, making enquiries from relatives, friends and her
classmates, and attempting to contact her on her mobile phone, her
whereabouts could not be traced. On the basis of the said report, the
Police registered FIR (Ex.P/5) under Section 363 of the Indian Penal
Code against an unknown person. During the course of investigation,
on the basis of the mobile location of the appellant, the Police
recovered the victim from the appellant’s custody from a rented house
situated at Ambedkar Nagar, Indore (Madhya Pradesh) on 02.06.2019,
3
where recovery panchnama (Ex.P/1) was prepared. The victim was
thereafter sent for medical examination at the District Hospital, Balod,
where she was medically examined by PW/7 Dr. Prabha Barman, who
gave her medical reports (Ex.P/22 and Ex.P/23). During medical
examination, no external injuries or injuries over the private parts of the
victim were found; her hymen was found to be old ruptured and the
doctor opined that there was no evidence of forceful sexual intercourse
or of recent sexual intercourse. Two vaginal slides were prepared,
sealed and handed over to the Police for chemical examination, and
the underwear of the victim was also examined and sealed. With
respect to the age of the victim, the Investigating Officer seized the
school admission register vide seizure memo (Ex.P/17) and, after
retaining its certified copy (Ex.P/19-C), returned the original register to
the school. As per the admission register, the date of birth of the victim
was 07.08.2005. The Investigating Officer also seized the Class-V
marksheet of the victim vide seizure memo (Ex.P/7). The spot map
(Ex.P/6) was prepared by the Investigating Officer and the spot map
(Ex.P/9) was prepared by the Patwari. The appellant was arrested on
03.06.2019 and was medically examined by PW/6 Dr. Bhupendra
Sonkar, who opined vide report (Ex.P/20) that the appellant was
capable of performing sexual intercourse. The vaginal slides of the
victim, her underwear and the underwear of the appellant were sent to
the State Forensic Science Laboratory, Raipur, from where FSL Report
(Ex.P/32) was received. As per the FSL report, semen and
spermatozoa were detected on the appellant’s underwear, whereas no
semen or spermatozoa were detected on the vaginal slides or the
underwear of the victim. The statement of the victim under Section 164
4
Cr.P.C. and the statements of the witnesses under Section 161 Cr.P.C.
were recorded. After completion of the investigation, the Police filed a
charge-sheet against the appellant for the offences punishable under
Sections 363, 366 and 376(2)(j) and (n) of the Indian Penal Code and
Sections 5(l)/6 of the Protection of Children from Sexual Offences Act,
2012 before the learned trial Court.
4. The learned trial Court framed charges against the appellant for the
offences punishable under Sections 363, 366 and 376(2)(j) and (n) of
the Indian Penal Code and Section 5(l) punishable under Section 6 of
the Protection of Children from Sexual Offences Act, 2012. The
appellant abjured his guilt, denied the charges, and claimed to be tried.
5. In order to prove the charges against the appellant, the prosecution
examined as many as 11 witnesses. The statement of the appellant
under Section 313 of the Code of Criminal Procedure was also
recorded, wherein he denied all the incriminating circumstances
appearing against him, pleaded innocence and stated that he had been
falsely implicated in the case.
6. After appreciation of the oral as well as documentary evidence
adduced by the prosecution, and upon hearing the parties as well as
perusing the material available on record, the learned trial Court
recorded a finding that the victim was a minor and below 18 years of
age on the date of the incident. Consequently, the learned trial Court
found the appellant guilty of the offences punishable under Sections
363, 366 and 376(2)(j) and (n) of the Indian Penal Code and Section
5(l) punishable under Section 6 of the Protection of Children from
Sexual Offences Act, 2012, and convicted and sentenced him
5
accordingly, as mentioned in the earlier part of this judgment. Hence,
the present appeal.
7. Learned counsel for the appellant would submit that the appellant is
innocent and has been falsely implicated in the present case. It is
contended 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. It is
argued that the prosecution has failed to prove the age of the victim in
accordance with law. The learned trial Court has relied upon the school
admission register, though neither the person who made the relevant
entry in the register nor the document on the basis of which the date of
birth was recorded was produced before the Court. No birth certificate,
Kotwari register or ossification test was brought on record to
conclusively establish that the victim was below 18 years of age on the
date of the incident. It is further submitted that the evidence of the
victim itself shows that she was in regular telephonic contact with the
appellant for several months prior to the incident, that she voluntarily
met the appellant at Bus Stand, accompanied him to Raipur and
thereafter to Indore of her own free will, and remained with him for
more than three months without raising any alarm or making any
complaint to any person, despite having several opportunities to do so.
It is further contended that the victim was carrying her mobile phone
throughout the period and was often left alone in the rented house
when the appellant had gone for work, yet she neither informed her
family nor approached the police or any other person, which
probabilises the defence case that she had voluntarily accompanied
the appellant. Learned counsel would further submit that the medical
6
evidence does not support the prosecution case, as PW/7 Dr. Prabha
Barman found no external or genital injuries on the victim and
specifically opined that there was no evidence of forceful or recent
sexual intercourse. The FSL report also does not detect semen or
spermatozoa on the vaginal slides or underwear of the victim. It is
further argued that the prosecution witnesses have made material
improvements and contradictions in their statements, which have not
been properly appreciated by the learned trial Court. In these
circumstances, it is submitted that the prosecution has failed to prove
the essential ingredients of the offences alleged against the appellant
beyond reasonable doubt and, therefore, the impugned judgment of
conviction and sentence deserves to be set aside and the appellant
deserves to be acquitted of all the charges.
8. Per contra, learned State counsel supports the impugned judgment of
conviction and sentence and submits that the prosecution has proved
the guilt of the appellant beyond all reasonable doubt by leading
cogent, convincing and reliable oral as well as documentary evidence.
It is contended that the age of the victim has been duly established
from the School Admission Register (Ex.P/19-C), which records her
date of birth as 07.08.2005 and stands duly proved through the
testimony of PW/5 and PW/9, the Investigating Officer. On the date of
the incident, the victim was below 16 years of age and, therefore, any
alleged consent on her part is of no legal consequence. It is further
submitted that the testimony of the victim (PW/1) is natural, consistent
and inspires confidence. She has categorically stated that the appellant
contacted her over the phone, met her at Bus Stand, took her to Indore
and repeatedly established physical relations with her while keeping
7
her in rented accommodation. Her testimony is duly corroborated by
the evidence of PW/2, her father, the recovery witnesses, the medical
evidence and the investigating officers. Learned State counsel further
submits that the victim was recovered from the custody of the appellant
at Indore pursuant to the mobile location of the appellant, which lends
further assurance to the prosecution case. It is argued that the
absence of external injuries or the doctor’s opinion that there was no
evidence of recent forceful sexual intercourse does not demolish the
prosecution case, particularly when the victim had remained with the
appellant for a considerable period and the medical evidence only
corroborates the ocular evidence. The FSL report and the medical
evidence are not inconsistent with the prosecution version. It is,
therefore, submitted that the learned trial Court has correctly
appreciated the entire evidence on record and has rightly convicted the
appellant for the alleged offences, therefore, no interference with the
impugned judgment is called for and the appeal deserves to be
dismissed.
9. We have heard learned counsel for the parties and perused the record
of the learned trial Court.
10.The first and the foremost question arises for consideration would be
as to age of the victim whether she was minor and less than 18 years
of age on the date of incident or not.
11. The prosecution has mainly relied upon Ex.P/19(C), which is the
certified copy of the Admission Register (Dakhil Kharij Register) of
Government Primary School, to establish the age of the victim. The
said document has been sought to be proved by PW/5 Assistant
Teacher of the said school. PW/5 deposed that, pursuant to the
8
requisition issued by the Police (Ex.P/16), he produced the original
Admission Register before the Investigating Officer, who seized the
same vide seizure memo (Ex.P/17). After retaining its certified copy
(Ex.P/19-C), the original register was returned to the school under
Supurdnama (Ex.P/18). As per the entry of the Admission Register, the
date of birth of the victim is recorded as 07.08.2005. However, during
his cross-examination, PW/5 admitted that the handwriting in the
Admission Register was not his and that he was not the person who
had made the relevant entry. He further admitted that he was unaware
as to which document had been produced at the time of admission of
the victim for recording her date of birth, though he stated that
ordinarily the date of birth is entered after verifying the birth certificate.
Admittedly, neither the person who had made the relevant entry in the
Admission Register nor the person who had admitted the victim in the
school was examined by the prosecution. Further, no birth certificate,
Kotwari Register or any other foundational document on the basis of
which the date of birth was allegedly recorded in the Admission
Register has been brought on record. Thus, except the certified copy of
the Admission Register, there is no documentary evidence relating to
the initial source of the victim’s date of birth.
12.The Hon’ble Supreme Court has considered the admissibility and
evidentiary value of the school register with respect to the age of the
victim. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu
and Another Vs. State, represented by Inspector of Police, 2011(2)
SCC 385, the Hon’ble 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
9above 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. The date of birth mentioned in the transfer
certificate would have no evidentiary value unless the
person, who made the entry or who gave the date of
birth is examined.
42. Considering the manner in which the facts recorded in
a document may be proved, this Court in the case of Birad
Mal Singhvi Vs. Anand Purohit1, observed as follows:-
“The date of birth mentioned in the scholars’ register
has no evidentiary value unless the person who
made the entry or who gave the date of birth is
examined….Merely because the documents Exs. 8,
9, 10, 11, and 12 were proved, it does not mean that
the contents of documents were also proved. Mere
proof of the documents Exs. 8, 9, 10, 11 and 12
would not tantamount to proof of all the contents or
the correctness of date of birth stated in the
documents. Since the truth of the fact, namely, the
date of birth of Hukmi Chand and Suraj Prakash
Joshi was in issue, mere proof of the documents as
produced by the aforesaid two witnesses does not
furnish evidence of the truth of the facts or contents
of the documents. The truth or otherwise of the facts
in issue, namely, the date of birth of the two
candidates as mentioned in the documents could be
proved by admissible evidence i.e. by the evidence
of those persons who could vouchsafe for the truth
of the facts in issue. No evidence of any such kind
was produced by the respondent to prove the truth
of the facts, namely, the date of birth of Hukmi
Chand and of Suraj Prakash Joshi. In the
circumstances the dates of birth as mentioned in the
aforesaid documents 1988 (Supp) SCC 604 have no
probative value and the dates of birth as mentioned
therein could not be accepted.”
43. The same proposition of law is reiterated by this Court
10
in the case of Narbada Devi Gupta Vs. Birendra Kumar
Jaiswal2, where this Court observed as follows:-
“The legal position is not in dispute that mere
production and marking of a document as
exhibit by the court cannot be held to be a due
proof of its contents. Its execution has to be
proved by admissible evidence, that is, by the
“evidence of those persons who can vouchsafe
for the truth of the facts in issue”.”
44. In our opinion, the aforesaid burden of proof has
not been discharged by the prosecution. The father
says nothing about the transfer certificate in his
evidence. The Headmaster has not been examined at
all. Therefore, the entry in the transfer certificate can
not be relied upon to definitely fix the age of the girl.
48. We may further notice that even with reference to
Section 35 of the Indian Evidence Act, a public
document has to be tested by applying the same
standard in civil as well as criminal proceedings. In
this context, it would be appropriate to notice the
observations made by this Court in the case of
Ravinder Singh Gorkhi Vs. State of U.P.4 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 (2006) 5 SCC 584 party to the lis,
having regardto 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 victim although might have
11consented 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.”
13. 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:
“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
12
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, 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 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
13
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.
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.”
14. In case of P. Yuvaprakash Vs. State represented by Inspector of
Police, 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 to the births and deaths were missing. Since
14it did not answer to thedescription 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. 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.”
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 that:
“Clause (i) of Section 94 (2) places the date of
birth certificate from the school and the
matriculation or equivalent certificate from the
2021 (12) SCR 502 [2019] 9 SCR 735
concerned examination board in the same
category (namely (i) above). In the absence
15thereof 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 fromthe 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, 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.”
15. Reverting to the facts of the present case, when we examine the
testimony of the victim (PW/1), we find certain aspects of her evidence
relating to her age and date of birth. The victim (PW/1) stated in her
examination-in-chief that her date of birth is 07.08.2005 and that she
was studying in Class IX at the time of her deposition. In her cross-
examination, she admitted that she was stating her date of birth on the
basis of the school certificate. She did not state that she had any
personal knowledge of her date of birth. She also did not produce any
document relating to her admission in Class-I or any birth certificate in
support of the date of birth recorded in the school records. The
prosecution has also not examined the person who admitted the victim
to the school or the person who made the relevant entry in the
16
Admission Register, nor has it produced the foundational document on
the basis of which the date of birth was entered in the school records.
Thus, the testimony of the victim itself shows that her knowledge
regarding her date of birth is derived only from the school record, which
is not supported by the primary document forming the basis of such
entry.
16. PW-2, the father of the victim, also stated that the date of birth of the
victim is 07.08.2005 and at the time of incident she was the student of
Class- 8th. In his cross-examination, he admitted that the birth of the
child is to be recorded by the villagers in the Kotwari Register and birth
certificate was also got prepared, however, he neither obtained any
Kotwari Register or birth certificate of the victim. He further admitted
that he has not gone to school for admission of the victim.
17.From the evidence available on record, it is apparent that the
prosecution has relied primarily upon the school admission register to
establish the age of the victim. The victim (PW-1) herself has stated in
Para 19 of her evidence that she disclosed her date of birth on the
basis of her marksheet. The Assistant Teacher (PW/3) is not the author
of the school register and he could not produce any document on
which the date of birth of the victim is recorded in the school register.
The father of the victim (PW/2) has also admitted that he has not gone
to school for her admission and has not got any birth certificate or
kotwari register with respect to the date of birth of the victim. Thus,
although there is no contradiction inter se amongst the prosecution
witnesses regarding the date of birth, the evidence on record clearly
reveals that the school entry is not founded upon any primary or
document evidencing the birth of the victim. The prosecution has failed
17
to produce any birth certificate, hospital record, Gram
Panchayat/Municipal record or any other independent document to
substantiate the date of birth recorded in the school register. It has also
not resorted to any medical age determination, such as an ossification
test. Therefore, the school register, being based merely upon the
information supplied by the guardian without supporting documentary
proof, cannot by itself be treated as conclusive evidence of age.
Consequently, the prosecution has failed to adduce cogent and reliable
evidence to conclusively establish that the victim was below 18 years
of age on the date of the incident.
18.So far as the offences under Sections 363, 366 and 376(2)(j)(n) of the
IPC are concerned, we have carefully examined the evidence of the
victim (PW-1).
19.The victim (PW-1) stated in her evidence that she was acquainted with
the appellant prior to the incident and they were in a love relationship.
She deposed that on 27.02.2019, she herself accompanied the
appellant from her village to Dhamtari, thereafter to Raipur and then to
Indore. They stayed together at different places and during their stay
the appellant established physical relations with her on several
occasions. She further stated that they lived together for about three
months before they were apprehended by the Police. In her cross-
examination, she admitted that she had voluntarily accompanied the
appellant and had not raised any alarm or sought help from any person
during the entire journey, although they travelled through public places
and by public transport. She also admitted that she had several
opportunities to leave the appellant but did not do so. She further
admitted that she had not made any complaint to any person, including
18
the hotel staff, passengers or local residents, alleging that she had
been forcibly taken away or wrongfully confined by the appellant. She
also admitted that she did not sustain any injury during the period she
remained with the appellant and that she did not disclose the alleged
sexual acts to any person until after her recovery by the Police.
20.From the testimony of the victim, it is evident that she was acquainted
with the appellant prior to the incident and had voluntarily accompanied
him from her village to different places where they resided together for
a considerable period. During the entire period of their travel and stay,
despite having ample opportunity to seek assistance or disclose any
alleged coercion, she neither raised any alarm nor lodged any
complaint before any independent person or authority. Her conduct, as
emerging from her own testimony, indicates that she remained in the
company of the appellant of her own volition throughout the relevant
period.
21.In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942,
the Hon’ble Supreme Court has considered the taking and allowing a
minor to accompany a person and has held in Para 9 and Para 10 of
its judgment that:-
“9. It must, however, be borne in mind that there is a
distinction between “taking” and allowing a minor to
accompany a person. The two expressions are not
synonymous though we would like to guard ourselves from
laying down that in no conceivable circumstance can the
two be regarded as meaning the same thing for the
purposes of of the Indian Penal Code. We would limit
ourselves to a case like the present where the minor
alleged to have been taken by the accused person left her
father’s protection knowing and having capacity to know the
full import of what she was doing voluntarily joins the
accused person. In such a case we do not think that the
accused can be said to have taken her away from the
19keeping of her lawful guardian. Something more has to be
shown in a case of this kind and that is some kind of
inducement held out by the accused person or an active
participation by him in the formation of the intention of the
minor to leave the house of the guardian.
10. 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. In our, opinion 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 fulfillment of the
intention of the girl. That part, in our opinion, 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”.
22. In the matter of Tilku Alias Tilak Singh V. The State Of Uttarakhand,
reported in 2025 INSC 226, 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 victim 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
20enticement 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
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
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
21
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 victim, 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 victim 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.”
23.In the matter of Dola @ Dolagobinda Pradhan Vs. State of Odisha,
reported in (2018) 18 SCC 695, the Hon’ble Supreme Court has held in
Para 9 :-
9. However, as is also evident from the observations above,
such reliance may be placed only if the testimony of the
victim appears to be worthy of credence. In this regard, it is
also relevant to note the following observations of this Court
in Raju v. State of M.P. 4, which read thus: (SCC p. 141,
paras 10-11)“10. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a victim
should not be suspected and should be believed,
more so as her statement has to be evaluated on a
par with that of an injured witness and if the evidence
is reliable, no corroboration is necessary.
Undoubtedly, the aforesaid observations must carry
the greatest weight and we respectfully agree with
them, but at the same time they cannot be
universally and mechanically applied to the facts of
every case of sexual assault which comes before the
court.
11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but at
22
the same time a false allegation of rape can cause
equal distress, humiliation and damage to the In the
matter of Dola @ Dolagobinda Pradhan Vs. State
of Odisha, reported in (2018) 18 SCC 695, the
Hon’ble Supreme Court has held in Para 9 :-
9. However, as is also evident from the observations above,
such reliance may be placed only if the testimony of the
victim appears to be worthy of credence. In this regard, it is
also relevant to note the following observations of this Court
in Raju v. State of M.P. 4, which read thus: (SCC p. 141,
paras 10-11)
24. “10. The aforesaid judgments lay down the
basic principle that ordinarily the evidence of a victim
should not be suspected and should be believed,
more so as her statement has to be evaluated on a
par with that of an injured witness and if the evidence
is reliable, no corroboration is necessary.
Undoubtedly, the aforesaid observations must carry
the greatest weight and we respectfully agree with
them, but at the same time they cannot be
universally and mechanically applied to the facts of
accused as well. The accused must also be
protected against the possibility of false implication,
particularly where a large number of accused are
involved. It must, further, be borne in mind that the
broad principle is that an injured witness was present
at the time when the incident happened and that
ordinarily such a witness would not tell a lie as to the
actual assailants, but there is no presumption or any
basis for assuming that the statement of such a
witness is always correct or without any
embellishment or exaggeration.”
Having due regard in our mind to the abovementioned
settled position in law, we have assessed the entire material
on record meticulously.
25.PW-2, who is the father of the victim, and the other family witnesses
have deposed only on the basis of the information subsequently
received from the victim and are not witnesses to the alleged
occurrence. PW-3 proved the missing report lodged after the victim
23
could not be found at her house and also proved the documents
relating to her age. However, his evidence regarding the alleged
kidnapping and commission of rape is entirely hearsay, as he had no
personal knowledge of the events that transpired after the victim left
her house. The victim (PW-1), in her own testimony, has admitted that
she was acquainted with the appellant, voluntarily accompanied him to
different places, remained with him for about three months and did not
raise any alarm or make any complaint to any person during the entire
period despite having several opportunities to do so. In such
circumstances, the evidence of her father and other family members,
being based solely on what was disclosed to them by the victim after
her recovery, does not materially advance the prosecution case on the
question of kidnapping or forcible sexual intercourse. Nevertheless,
since the victim has consistently alleged that the appellant established
physical relations with her during the period they remained together,
the crucial issue would ultimately depend upon whether the
prosecution has satisfactorily established that she was a minor on the
date of the incident. If the prosecution fails to prove her minority by
legally admissible and reliable evidence, then her voluntary conduct, as
emerging from her own testimony, assumes significance while
appreciating the ingredients of the offences alleged against the
appellant.
26.PW-7, Dr. Prabha Barman, who medically examined the victim, proved
the medical examination report and deposed that on examination, the
hymen of the victim was found to be old ruptured. However, she did not
find any fresh external or internal injuries on the body or private parts
of the victim suggestive of recent forcible sexual intercourse. The
24
doctor did not give any definite opinion regarding recent sexual
intercourse and preserved the vaginal slides and other samples for
forensic examination. The vaginal slides of the victim, her underwear
and the underwear of the appellant were sent to the State Forensic
Science Laboratory, Raipur for chemical examination. As per the FSL
Report (Ex.P-32), no semen stains or human spermatozoa were
detected on the vaginal slides or the underwear of the victim. Thus,
neither the medical evidence nor the forensic report provides any
corroboration regarding recent sexual intercourse with the victim.
27.PW-4, the uncle of the victim, deposed that the victim was the daughter
of his younger brother and was about 15 years of age at the time of the
incident. He stated that when the victim did not return home after
leaving for school, her family searched for her but could not trace her,
whereafter a missing report was lodged at Police Station Gurur. He
further stated that after about three to four months, on the basis of
location information, he accompanied the police and the victim’s father
to Indore, where the victim was recovered from the company of the
appellant, and the recovery memo (Ex.P/1) was prepared. He also
proved his signatures on the seizure memo of the appellant’s
underwear (Ex.P/10) and the seizure memo relating to the school
attendance register (Ex.P/12). He stated that after the victim returned,
he came to know from her that the appellant had taken her to Indore
and kept her with him. Thus, his testimony is confined to the formal
aspects of the investigation and does not provide any independent
corroboration regarding the alleged offences committed by the
appellant.
25
28.The version of the victim commands great respect and acceptability,
but if there are some circumstances which cast some doubt in the mind
of the court on the veracity of the victim’s evidence, then it will not be
safe to rely on the said version of the victim. There is contradiction and
omissions in the statement of the victim and her parents. The law is
well settled that in case of rape, conviction can be maintained even on
the basis of sole testimony of the victim. However, there is an important
caveat which is that the testimony of the victim must inspire
confidence. Even though the testimony of the victim is not required to
be corroborated, if her statement is not believable, then the accused
cannot be convicted. The prosecution has to bring home the charges
levelled against the appellant beyond any reasonable doubt, which the
prosecution has failed to do in the instant case.
29.Upon a careful consideration of the entire oral and documentary
evidence available on record, we are of the considered opinion that the
prosecution has failed to establish its case against the appellant
beyond reasonable doubt. The testimony of the victim itself reveals that
she voluntarily accompanied the appellant and remained with him for a
considerable period without raising any alarm or making any complaint
despite having ample opportunities to do so. The medical evidence
does not disclose any fresh injuries suggestive of forcible sexual
intercourse, and the FSL report also does not provide any
corroborative evidence connecting the appellant with the alleged
sexual assault. The remaining prosecution witnesses are either formal
witnesses or have deposed on the basis of what was subsequently
disclosed to them by the victim and, therefore, do not furnish any
independent corroboration on the material aspects of the prosecution
26
case. In these circumstances, the prosecution has failed to prove the
charges against the appellant beyond reasonable doubt and,
consequently, the conviction and sentence recorded by the learned
Trial Court cannot be sustained in the eyes of law.
30.Accordingly, the appeal filed by the appellants are hereby Allowed.
The impugned judgment of conviction and sentences dated 26.12.2022
passed against the appellant are set aside. The appellant is
acquitted from all the charges.
31.The appellant is reported to be in jail since 03.06.2019. He shall be
released forthwith if not required in any other case.
32.Keeping in view the provisions of Section 481 of Bharatiya Nagrik
Suraksha Sanhita, 2023, the appellant is directed to furnish a personal
bond for a sum of Rs. 25,000/- in the like amount before the Court
concerned 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.
33.The trial court record along with a copy of this judgment be sent back
immediately to the trial court concerned for compliance and necessary
action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Sagrika
