Chattisgarh High Court
Shivdhari Yadav vs State Of Chhattisgarh on 20 February, 2026
1
2026:CGHC:9023-DB
Digitally
VISHAKHA signed by
BEOHAR VISHAKHA
NAFR
BEOHAR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 103 of 2015
1 - State Of Chhattisgarh Aged About 18 Years Through The
Station House Officer, Odgi, District Surajpur, Chhattisgarh.,
Chhattisgarh
--- Appellant
versus
1 - Omprakash Maar S/o Dubraj Maar Aged About 20 Years R/o
Village Sendur, Outpost Vijay Nagar, Police Station Balrampur,
District Balrampur-Ramanujganj Chhattisgarh., Chhattisgarh
--- Respondent
CRA No. 158 of 2015
1 - Shivdhari Yadav S/o Bachhalal Yadav Aged About 40 Years R/o
Village- Parsiya, P.S. Odgi, Distt.- Surajpur, C.G., Chhattisgarh
---Appellant
Versus
1 - State Of Chhattisgarh S/o Through The Station House Officer,
Police Station Odgi, Distt.- Surajpur, Civil And Revenue District-
Surajpur, C.G., Chhattisgarh
--- Respondent
For State :- Mr. Dharmesh Shrivastava, Dy. A.G.
2
For Respondent in :- Mrs. Parwati Suryawanshi, Advocate
in ACQA No.103/2015 on behalf of Mr. Bhupendra Singh,
Advocate
For Appellant in :- Mrs. Seema Mishra, Advocate on
CRA No.158/2015 behalf of Mrs. Uttara Shrivastava,
Advocate
Division Bench : Hon'ble Shri Sanjay S. Agrawal and
Hon'ble Shri Amitendra Kishore Prasad, JJ.
Judgment on Board
20.02.2026
Per Amitendra Kishore Prasad, J.
1. Since both the above-captioned appeals arise out of the
common judgment dated 23.01.2015 passed by the learned
First Additional Sessions Judge, Surajpur, District Surajpur,
C.G. in Sessions Trial No.74/2014, they are being decided by
this common judgment.
2. ACQA No.103/2015 has been preferred by the State
challenging the acquittal of accused- Omprakash for the
offences punishable under Section 376 of Indian Penal Code
(in short, ‘IPC‘) and Section 4 of the Protection of Children
from Sexual Offences Act, 2012 (in short, ‘the Act, 2012).
3. Criminal Appeal No.158/2015 has been preferred by
accused- Shivdhari Yadav assailing his conviction under
Sections 363 and 366-A of IPC and the sentence of simple
imprisonment for two years on each count with a fine of
3
Rs.100/- each, and in default of payment of fine, to undergo
additional imprisonment for seven days for each offence, with
a direction that both the sentences shall run concurrently.
4. Case of the prosecution, in brief, is that prosecutrix lodged a
First Information Report at Police Station Odgi stating that
she is a resident of Village Parsiya and a student of Class
XII. She alleged that on 16.04.2014, after being scolded by
her mother, she left her house and went to the house of
accused- Shivdhari Yadav. It is further the case of the
prosecution that thereafter accused- Shivdhari Yadav took
her to the house of co-accused Omprakash, where she was
kept in his room during the night. According to the
prosecution, co-accused- Omprakash assured the
prosecutrix that he would marry her and, on the pretext of
marriage, allegedly established physical relations with her
during the night. It is further alleged that in the early morning
hours, she was driven away from the house of co-accused-
Omprakash, whereafter she went to the house of her friend
Devmaniya in Village Baijnathpur and subsequently returned
to her house at Village Parsiya. Owing to fear and hesitation,
she did not disclose the incident immediately to anyone and
only on 21.04.2014 narrated the incident to her parents,
pursuant to which, the report was lodged at Police Station
4
Odgi. On the basis of the aforesaid information furnished by
the prosecutrix, FIR (Ex.P-1) was registered on 21.04.2014 at
Police Station Odgi against the accused persons for the
offences punishable under Sections 363, 366 and 376 of IPC
and Section 4 of the Act, 2012, and the investigation was set
into motion.
5. During the course of investigation, the Investigating Officer
prepared the spot map of the place of occurrence (Ex.P-2)
and seized the necessary articles related to the incident. The
statements of the prosecutrix and other witnesses were
recorded under Section 161 of the Code of Criminal
Procedure. The prosecutrix was sent for medical
examination, which was conducted on 21.04.2014 by the
concerned medical officer (PW-5 Dr. Garima Singh). As per
the medical examination report (Ex.P-3), no external injuries
were found on the body of the prosecutrix and vaginal slides
were prepared and preserved for chemical examination. The
doctor (PW-5) opined that a conclusive opinion regarding
sexual intercourse could be given only after receipt of the
chemical examination report. Seized articles were sent to
FSL for chemical examination and as per FSL report
(Ex.P-6), human spermatozoa was found on the seized slides
of prosecutrix.
5
6. After due investigation, accused persons were charge-
sheeted before the jurisdictional Criminal Court and the case
was committed to the trial Court for hearing and disposal in
accordance with law, in which, accused persons abjured their
guilt and entered into defence by stating that they have not
committed the aforesaid offences.
7. In order to bring home the offences, the prosecution
examined as many as 8 witnesses and brought on record 6
documents vide Ex.P/01 to Ex.P/6. The accused persons, in
their defence, examined none, but exhibited 6 documents
vide Ex.D/01 to Ex.D/06. Statements of the accused persons
were recorded under Section 313 of the Code of Criminal
Procedure, wherein they denied the circumstances appearing
against them in the evidence on record, pleaded innocence,
and alleged false implication.
8. The learned trial Court, after hearing the learned counsel for
the parties and upon due appreciation of the evidence
available on record, vide judgment dated 23.01.2015,
acquitted co-accused Omprakash of the charges under
Section 376 of IPC and Section 4 of the Act, 2012. However,
the trial Court convicted co-accused Omprakash for the
offences punishable under Sections 363 and 366 of IPC and
also convicted accused- Shivdhari Yadav for the offences
6
punishable under Sections 363 and 366-A of the IPC and
sentenced him as indicated in the opening paragraph of this
judgment. Being aggrieved by the said judgment of conviction
and acquittal, both the State as well as accused- Shivdhari
Yadav have preferred separate appeals before this Court.
9. ACQA No.103/2015:- Learned counsel for the State,
assailing the acquittal of accused- Omprakash, submits that
the learned trial Court has committed a grave error in
discarding the testimony of the prosecutrix on the ground of
contradictions and alleged inconsistencies. It is contended
that in the First Information Report as well as in her
statement recorded under Section 161 of the Code of
Criminal Procedure, the prosecutrix had specifically alleged
that co-accused- Omprakash had committed sexual
intercourse with her on the pretext of marriage. It is further
argued that merely because the prosecutrix did not fully
support the prosecution case during her deposition before the
Court or made certain inconsistent statements, her earlier
version cannot be brushed aside in toto, particularly when the
core allegation regarding sexual intercourse remained
consistent at the initial stages of the prosecution. He also
submits that minor discrepancies, improvements or partial
hostility are natural and do not go to the root of the
7
prosecution case. Placing reliance on the settled legal
position, it is urged that conviction can be based on the sole
testimony of the prosecutrix if the same is found to be cogent,
credible and trustworthy, and that her evidence stands on a
higher pedestal in cases of sexual offences. It is contended
that the learned trial Court failed to appreciate this settled
principle and unnecessarily sought corroboration in material
particulars. It is also submitted that the FSL report reveals the
presence of human spermatozoa on the vaginal slide of the
prosecutrix, which lends corroboration to the allegation of
sexual intercourse. According to the learned counsel for the
State, this scientific evidence was not properly appreciated
by the trial Court while recording the acquittal of accused
Omprakash. Thus, it is argued that the learned trial Court
adopted a hyper-technical approach in evaluating the
evidence and extended undue benefit of doubt to the
accused- Omprakash, resulting in an erroneous acquittal
which calls for interference by this Court in the appeal against
acquittal.
10. Learned counsel appearing for co-accused- Omprakash
supports the judgment of acquittal and submits that the
prosecutrix herself resiled from her allegations in Court and
categorically stated that co-accused-Omprakash did nothing
8
to her. It is contended that she admitted compromise and
stated that she wanted to save co-accused -Omprakash.
There is no medical evidence connecting co-accused
Omprakash with the alleged act and no DNA examination
was conducted. It is therefore argued that the acquittal is
based on proper appreciation of evidence and does not
warrant interference in appeal against acquittal.
11. CRA No.158/2015:- Learned counsel for the appellant-
Shivdhari Yadav submits that the learned trial Court has erred
in convicting and sentencing the appellant under Sections
363 and 366-A of IPC without there being cogent and reliable
evidence on record. It is contended that, as per the own
version of the prosecutrix, she had voluntarily left her house
after being scolded by her mother and there is no material to
show that the appellant had induced, enticed or forcibly taken
her away from the lawful guardianship of her parents. He
further submits that mere presence of the prosecutrix at the
house of the appellant, in absence of any evidence of active
participation in taking or inducing her, does not constitute the
offence of kidnapping or abduction. It is submitted that the
prosecution has failed to establish any overt act on the part of
the appellant which would satisfy the essential ingredients of
the offences under Sections 363 and 366-A of the IPC. It is
9
also contended that there existed a prior land dispute
between the families of the parties, on account of which, the
appellant has been falsely implicated in the present case.
According to the learned counsel, this aspect has not been
properly considered by the trial Court while recording the
conviction. Lastly, he submits that the essential ingredients of
Section 366-A of IPC are wholly absent in the present case.
In absence of proof of inducement, intention or active role
attributable to the appellant, the conviction recorded by the
trial Court is unsustainable in law and deserves to be set
aside.
12. Per contra, learned State counsel submits that the
prosecutrix was admittedly below 18 years of age at the time
of the incident and, therefore, her consent, even if any, is
legally immaterial. It is contended that the evidence on record
shows that she was taken out of the lawful guardianship of
her parents and left at the house of co-accused Omprakash,
which clearly satisfies the ingredients of the offences under
Sections 363 and 366-A of the IPC. It is thus argued that the
learned trial Court has rightly appreciated the evidence and
recorded the conviction, and no interference is warranted in
the appeal.
10
13. We have heard learned counsel for the parties and
perused the material available on record.
14. The first question that arises for consideration before
this Court is whether the finding recorded by the learned trial
Court that the prosecutrix was a minor, i.e., below 18 years of
age on the date of the incident, is correct
15. When a person is charged for the offence punishable
under the POCSO Act, or for rape punishable in the Indian
Penal Code, the age of the victim is significant and essential
ingredient to prove such charge and the gravity of the offence
gets changed when the child is below 18 years, 12 years and
more than 18 years. Section 2(d) of the POCSO Act defines
the “child” which means any person below the age of
eighteen years.
16. In Jarnail Singh Vs. State of Haryana, reported in
(2013) 7 SCC 263, the Hon’ble Supreme Court laid down the
guiding principles for determining the age of a child, which
read as follows:-
“22. On the issue of determination of age of a
minor, one only needs to make a reference to Rule
12 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 (hereinafter referred to as the
2007 Rules). The aforestated 2007 Rules have
11been framed under Section 68(1) of the Juvenile
Justice (Care and Protection of Children) Act, 2000.
Rule 12 referred to hereinabove reads as under:
“12. Procedure to be followed in
determination of Age.? (1) In every case
concerning a child or a juvenile in conflict with
law, the court or the Board or as the case may
be the Committee referred to in rule 19 of these
rules shall determine the age of such juvenile or
child or a juvenile in conflict with law within a
period of thirty days from the date of making of
the application for that purpose.
(2) The court or the Board or as the case may
be the Committee shall decide the juvenility or
otherwise of the juvenile or the child or as the
case may be the juvenile in conflict with law,
prima facie on the basis of physical appearance
or documents, if available, and send him to the
observation home or in jail.
(3) In every case concerning a child or juvenile
in conflict with law, the age determination inquiry
shall be conducted by the court or the Board or,
as the case may be, the Committee by seeking
evidence by obtaining –
(a) (i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;
12
(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;
(b) and only in the absence of either (i), (ii)
or (iii) of clause (a) above, the medical
opinion will be sought from a duly
constituted Medical Board, which will
declare the age of the juvenile or child. In
case exact assessment of the age cannot
be done, the Court or the Board or, as the
case may be, the Committee, for the
reasons to be recorded by them, may, if
considered necessary, give benefit to the
child or juvenile by considering his/her age
on lower side within the margin of one year.
and, while passing orders in such case shall,
after taking into consideration such evidence
as may be available, or the medical opinion,
as the case may be, record a finding in
respect of his age and either of the evidence
specified in any of the clauses (a)(i), (ii), (iii) or
in the absence whereof, clause (b) shall be
the conclusive proof of the age as regards
such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the
juvenile in conflict with law is found to be
below 18 years on the date of offence, on the
13
basis of any of the conclusive proof specified
in sub-rule (3), the court or the Board or as the
case may be the Committee shall in writing
pass an order stating the age and declaring
the status of juvenility or otherwise, for the
purpose of the Act and these rules and a copy
of the order shall be given to such juvenile or
the person concerned.
(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms of
section 7A, section 64 of the Act and these
rules, no further inquiry shall be conducted by
the court or the Board after examining and
obtaining the certificate or any other
documentary proof referred to in sub-rule (3)
of this rule.
(6) The provisions contained in this rule shall
also apply to those disposed off cases, where
the status of juvenility has not been
determined in accordance with the provisions
contained in sub- rule(3) and the Act, requiring
dispensation of the sentence under the Act for
passing appropriate order in the interest of the
juvenile in conflict with law.”
23. Even though Rule 12 is strictly applicable
only to determine the age of a child in conflict
with law, we are of the view that the aforesaid
statutory provision should be the basis for
determining age, even for a child who is a victim
14
of crime. For, in our view, there is hardly any
difference in so far as the issue of minority is
concerned, between a child in conflict with law,
and a child who is a victim of crime. Therefore, in
our considered opinion, it would be just and
appropriate to apply Rule 12 of the 2007 Rules,
to determine the age of the prosecutrix VW-
PW6. The manner of determining age
conclusively, has been expressed in sub-rule (3)
of Rule 12 extracted above. Under the aforesaid
provision, the age of a child is ascertained, by
adopting the first available basis, out of a number
of options postulated in Rule 12(3). If, in the
scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has
overriding effect over an option expressed in a
subsequent clause. The highest rated option
available, would conclusively determine the age
of a minor. In the scheme of Rule 12(3),
matriculation (or equivalent) certificate of the
concerned child, is the highest rated option. In
case, the said certificate is available, no other
evidence can be relied upon. Only in the
15
absence of the said certificate, Rule 12(3),
envisages consideration of the date of birth
entered, in the school first attended by the child.
In case such an entry of date of birth is available,
the date of birth depicted therein is liable to be
treated as final and conclusive, and no other
material is to be relied upon. Only in the absence
of such entry, Rule 12(3) postulates reliance on a
birth certificate issued by a corporation or a
municipal authority or a panchayat. Yet again, if
such a certificate is available, then no other
material whatsoever is to be taken into
consideration, for determining the age of the
child concerned, as the said certificate would
conclusively determine the age of the child. It is
only in the absence of any of the aforesaid, that
Rule 12(3) postulates the determination of age of
the concerned child, on the basis of medical
opinion.”
17. In this regard, the prosecution examined PW-3 Madan
Singh, Headmaster of Government Higher Secondary
School, Baijnathpur, who produced the scholar register
maintained in the school. He proved the relevant entry
16
relating to the prosecutrix, wherein her date of birth is
recorded as 04.08.1998. The extract of the admission
register was duly exhibited. The witness has stated that the
register is maintained in the ordinary course of official
business. In his cross-examination, nothing material has
been elicited to discredit the authenticity of the document or
to show that the entry was manipulated or subsequently
inserted. The entry in the school admission register is
admissible in evidence under Section 35 of the Indian
Evidence Act, being an entry made in a public or official
record in the performance of official duty. It is well settled that
when such an entry is proved by a competent witness and
there is no material to doubt its correctness, the same can be
safely relied upon for determination of age, particularly in the
absence of any rebuttal evidence from the defence. The
defence has not produced any documentary evidence, such
as birth certificate, nor has any medical evidence been
adduced to dispute the recorded date of birth. No suggestion
has been put to PW-3 that the date of birth was recorded on
the basis of any incorrect information. Thus, the entry
remains unrebutted. The incident in the present case
occurred on 16.04.2014. If the date of birth of the prosecutrix
is taken as 04.08.1998, she was approximately 15 years and
17
8 months old on the date of occurrence. Therefore, she was
admittedly below 18 years of age and was a minor within the
meaning of Sections 361, 363 and 366-A of the Indian Penal
Code. In view of the aforesaid discussion, this Court holds
that the prosecution has proved beyond reasonable doubt
that the prosecutrix was a minor on the date of incident.
Consequently, her consent, if any, would be of no legal
consequence for the purpose of the offence of kidnapping
from lawful guardianship. The finding recorded by the learned
trial Court in this regard is well-founded and is hereby
affirmed.
18. Now the question that arises for consideration whether
the learned trial Court is justified in acquitting the accused-
Omparkash for the offence under Section 376 of IPC and
Section 4 of the Act, 2012.
19. the Hon’ble Supreme Court in the matter of
Jafarudheen and others vs. State of Kerala reported in
(2022) 8 SCC 440 has considered the scope of interference
in Appeal against acquittal, which reads as under:-
“25. While dealing with an appeal against
acquittal by invoking Section 378 CrPC, the
appellate court has to consider whether the trial
court’s view can be terms as a possible one,
particularly when evidence on record has been
18analysed. 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
enures in favour of the accused has to be
disturbed only by thorough scrutiny on the
accepted legal parameters.”
20. The Supreme Court in the matter of Constable Surendra
Singh and another v. State of Uttarakhand reported in
(2025) 5 SCC 433, whereby in Para-11 & 12, it has been held
that the High Court should interfere in the order of acquittal, if
the same suffers from perversity and is based on misreading
of material evidence etc. and observed as under:
“11. Recently, in the case of Babu Sahebagouda
Rudragoudar and others v. State of Karnataka,
(2024) 8 SCC 149, a Bench of this Court to which
one of us was a Member (B.R. Gavai, J.) had an
occasion to consider the legal position with regard
to the scope of interference in an appeal against
acquittal. It was observed thus:
“38. First of all, we would like to reiterate the
principles laid down by this Court governing
the scope of interference by the High Court in
an appeal filed by the State for challenging
19acquittal of the accused recorded by the trial
court.
39. This Court in Rajesh Prasad v. State of Bihar
[Rajesh Prasad v. State of Bihar, (2022) 3 SCC
471 : (2022) 2 SCC (Cri) 31] encapsulated the
legal position covering the field after considering
various earlier judgments and held as below :
(SCC pp. 482-83, para 29) 6 (2024) 8 SCC 149“29. After referring to a catena of judgments,
this Court culled out the following general
principles regarding the powers of the
appellate court while dealing with an appeal
against an order of acquittal in the following
words : (Chandrappa case [Chandrappa v.
State of Karnataka (2007) 4 SCC 415 : (2007)
2 SCC (Cri) 325], SCC p. 432, para 42
42. From the above decisions, in our
considered view, the following general
principles regarding powers of the
appellate court while dealing with an
appeal against an order of acquittal
emerge:
(1) An appellate court has full power to
review, reappreciate and reconsider the
evidence upon which the order of
acquittal is founded.
(2) The Criminal Procedure Code, 1973
puts no limitation, restriction or condition
on exercise of such power and an
appellate court on the evidence before it
20may reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as,
“substantial and compelling reasons”,
“good and sufficient grounds”, “very
strong circumstances”, “distorted
conclusions”, “glaring mistakes”, etc. are
not intended to curtail extensive powers of
an appellate court in an appeal against
acquittal. Such phraseologies are more in
the nature of “flourishes of language” to
emphasise the reluctance of an appellate
court to interfere with acquittal than to
curtail the power of the court to review the
evidence and to come to its own
conclusion.
(4) An appellate court, however, must
bear in mind that in case of acquittal,
there is double presumption in favour of
the accused. Firstly, the presumption of
innocence is available to him under the
fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is
proved guilty by a competent court of law.
Secondly, the accused having secured his
acquittal, the presumption of his
innocence is further reinforced, reaffirmed
and strengthened by the trial court.
(5) If two reasonable conclusions are
21
possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal recorded by
the trial court.’ ”
40. Further, in H.D. Sundara v. State of Karnataka
[H.D. Sundara v. State of Karnataka, (2023) 9 SCC
581: (2023) 3 SCC (Cri) 748], this Court summarised
the principles governing the exercise of appellate
jurisdiction while dealing with an appeal against
acquittal under Section 378CrPC as follows :(SCC p.
584, para 8)“8. … 8.1. The acquittal of the accused
further strengthens the presumption of
innocence;
8.2. The appellate court, while hearing an
appeal against acquittal, is entitled to
reappreciate the oral and documentary
evidence;
8.3. The appellate court, while deciding an
appeal against acquittal, after
reappreciating the evidence, is required to
consider whether the view taken by the
trial court is a possible view which could
have been taken on the basis of the
evidence on record;
8.4. If the view taken is a possible view,
the appellate court cannot overturn the
order of acquittal on the ground that
another view was also possible; and8.5. The appellate court can interfere with
22the order of acquittal only if it comes to a
finding that the only conclusion which can
be recorded on the basis of the evidence
on record was that the guilt of the accused
was proved beyond a reasonable doubt
and no other conclusion was possible.”
41. Thus, it is beyond the pale of doubt that the
scope of interference by an appellate court for
reversing the judgment of acquittal recorded by
the trial court in favour of the accused has to be
exercised within the four corners of the following
principles:
41.1. That the judgment of acquittal suffers
from patent perversity;
41.2. That the same is based on a
misreading/omission to consider material
evidence on record; and41.3. That no two reasonable views are
possible and only the view consistent with
the guilt of the accused is possible from the
evidence available on record.”
12. It could thus be seen that it is a settled legal position
that the interference with the finding of acquittal
recorded by the learned trial judge would be warranted
by the High Court only if the judgment of acquittal
suffers from patent perversity; that the same is based on
a misreading/omission to consider material evidence on
record; and that no two reasonable views are possible
and only the view consistent with the guilt of the
23accused is possible from the evidence available on
record.”
21. Further, the Hon’ble Apex Court vide its judgment dated
12.02.2024 (Criminal Appeal No 1162 of 2011) passed in
Mallappa and Ors. Versus State of Karnataka reported in
2024 (3) SCC 544 has held in para 36 as under:-
“36. Our criminal jurisprudence is essentially
based on the promise that no innocent shall be
condemned as guilty. All the safeguards and
the jurisprudential values of criminal law, are
intended to prevent any failure of justice. The
principles which come into play while deciding
an appeal from acquittal could be summarized
as:-
(i) Appreciation of evidence is the core
element of a criminal trial and such
appreciation must be comprehensive–
inclusive of all evidence, oral and
documentary;
(ii) Partial or selective appreciation of
evidence may result in a miscarriage of
justice and is in itself a ground of
challenge;
(iii) If the Court, after appreciation of
evidence, finds that two views are
possible, the one in favour of the accused
shall ordinarily be followed;
24
(iv) If the view of the Trial Court is a
legally plausible view, mere possibility of a
contrary view shall not justify the reversal
of acquittal;
(v) If the appellate Court is inclined to
reverse the acquittal in appeal on a re-
appreciation of evidence, it must
specifically address all the reasons given
by the Trial Court for acquittal and must
cover all the facts;
(vi) In a case of reversal from acquittal to
conviction, the appellate Court must
demonstrate an illegality, perversity or
error of law or fact in the decision of the
Trial Court.
22. Thus, in light of the above-quoted guidelines, we have
to examine whether the findings recorded by the learned trial
Court suffers from patent perversity or the same is based on
misreading/omission to consider material evidence on record
and whether two reasonable views are possible or only the
view consistent with the guilt of the accused is possible from
the evidence available on record.
23. In the present case, the prosecutrix (PW-1) deposed
that on the date of the incident, after being scolded by her
mother, she went to the house of accused- Shivdhari. In her
examination-in-chief, she stated that accused- Shivdhari had
25
established wrongful relations with her and specifically stated
that co-accused- Omprakash had done nothing to her. She
admitted her signatures on the FIR (Ex.P-1) and other
documents. Since she resiled from her earlier statements,
she was declared hostile. In her cross-examination by the
prosecution, she admitted that she had earlier stated before
the police that accused- Shivdhari had taken her to the house
of co-accused- Omprakash and that co-accused- Omprakash
had committed sexual intercourse with her. However, in her
deposition before the Court, she clearly stated that a
compromise had taken place with co-accused Omprakash
and that she wanted to save him. In her cross-examination by
the defence, she further admitted that she had left her house
on her own and returned the next morning. She also admitted
that the report was lodged after consultation and that there
existed a land dispute between her father and the family of
accused- Shivdhari.
24. Apart from this, PW-5 Dr. Garima Singh, who conducted the
medical examination of the prosecutrix on 21.04.2014, stated
that the secondary sexual characteristics of the prosecutrix
were developed and no external injuries were found on her
body. She prepared two vaginal slides and preserved them
for chemical examination. The doctor further opined that the
26
prosecutrix was habituated to sexual intercourse. As per the
FSL report, human spermatozoa were detected on the
vaginal slide; however, she did not give any definite opinion
regarding the identity of the person involved.
25. On overall appreciation of the evidence, this Court finds that
the testimony of the prosecutrix with regard to the allegation
of rape is materially inconsistent and suffers from serious
contradictions. In the FIR, the prosecutrix alleged that co-
accused Omprakash had committed sexual intercourse with
her. However, in her deposition before the Court, she
categorically stated that co-accused- Omprakash had not
committed any act with her and admitted that a compromise
had taken place and that she wanted to save him. Thus, the
core allegation of rape stands specifically denied by the
prosecutrix in her substantive evidence before the Court. Her
testimony, therefore, appears self-contradictory and
vacillating. Further, there is a delay of about five days in
lodging the FIR and the prosecutrix herself admitted that the
report was lodged after consultation. Coupled with the
admitted existence of a land dispute between the families,
the possibility of embellishment and exaggeration cannot be
ruled out. No independent witness has been examined to
corroborate the allegation of rape against co-accused-
27
Omprakash. Moreover, the medical evidence does not
conclusively implicate co-accused Omprakash. No external
injury was found on the person of the prosecutrix and she
was found to be habituated to sexual intercourse. Though
spermatozoa were detected on the vaginal slide, but no DNA
examination or other scientific evidence was conducted to
connect the same with co-accused Omprakash. The medical
and forensic evidence, at best, indicate sexual intercourse
but do not establish the identity of the perpetrator.
26. In the matter of Chotkau v. State of Uttar Pradesh, (2023)
6 SCC 742, Hon’ble Apex Court, in para-80 has observed as
under:
“80. After saying that Section 53A is not
mandatory, this Court found in paragraph 54 of
the said decision that the failure of the
prosecution to produce DNA evidence,
warranted an adverse inference to be drawn.
Paragraph 54 reads as follows: (Rajendra
Pralhadrao Wasnik v. State of Maharashtra,
(2019) 12 SCC 460 SCC p.485)“54. For the prosecution to decline to
produce DNA evidence would be a little
unfortunate particularly when the facility of
DNA profiling is available in the country.
The prosecution would be well advised to
28
take advantage of this, particularly in view
of the provisions of Section 53A and
Section 164A CrPC. We are not going to
the extent of suggesting that if there is no
DNA profiling, the prosecution case cannot
be proved but we are certainly of the view
that where DNA profiling has not been
done or it is held back from the trial court,
an adverse consequence would follow for
the prosecution.”
26. In the case of Krishan Kumar Malik v. State of
Haryana, (2011) 7 SCC 130, Hon’ble Apex Court in para-44
has held as under:
“44. Now, after the incorporation of Section
53 (A) in the Criminal Procedure Code,
w.e.f. 23.06.2006, brought to our notice by
learned counsel for the Respondent-State,
it has become necessary for the
prosecution to go in for DNA test in such
type of cases, facilitating the prosecution
to prove its case against the accused.
Prior to 2006, even without the aforesaid
specific provision in the Cr.P.C. the
prosecution could have still resorted to this
procedure of getting the DNA test or
analysis and matching of semen of the
Appellant with that found on the
undergarments of the prosecutrix to make
29it a fool proof case, but they did not do so,
thus they must face the consequences.”
27. In the light of the aforesaid legal position, it is evident
that the most crucial piece of scientific evidence, namely DNA
examination, was not conducted by the prosecution to
establish that the human spermatozoa found on the seized
vaginal slides of prosecutrix belonged to co-accused-
Omprakash. In absence of DNA profiling, the FSL report
merely establishes the presence of human spermatozoa and
does not connect co-accused Omprakash with the alleged
act of sexual assault. Thus, the forensic evidence fails to
establish the involvement of co-accused Omprakash in the
alleged offence. In a criminal trial, the burden lies upon the
prosecution to prove the guilt of the accused beyond
reasonable doubt. In the present case, the prosecution has
failed to discharge its burden and also failed to prove its case
beyond a reasonable doubt. The evidence available on
record does not inspire confidence and falls short of the
standard required for conviction..
28. Consequently, this Court is of the considered opinion
that the prosecution has failed to prove beyond reasonable
doubt that co-accused Omprakash committed rape or
penetrative sexual assault upon the prosecutrix. The learned
30
trial Court has assigned cogent and plausible reasons for
extending the benefit of doubt to the said accused, and this
Court finds no perversity, illegality or material infirmity in the
impugned judgment so as to warrant interference in an
appeal against acquittal. It is well settled that where two
views are reasonably possible on the basis of the evidence
on record and the trial Court has adopted one such
permissible and plausible view, the appellate Court should be
slow in interfering with an order of acquittal. In the present
case, the view taken by the learned trial Court is a
reasonable and possible view based on the evidence
available on record. Accordingly, the acquittal of co-accused-
Omprakash deserves to be respected in keeping with the
well-established principles governing appellate review of
acquittals.
29. Accordingly, ACQA No.103/2015 preferred by the
appellant/State challenging the acquittal of co-accused
Omprakash for the offences under Section 376 of the IPC
and Section 4 of the POCSO Act is hereby dismissed.
30. Now, this Court shall proceed to consider the criminal
appeal (CRA No.158/2015) preferred by accused- Shivdhari
Yadav assailing his conviction and sentence for the offences
31
punishable under Sections 363 and 366-A of the Indian Penal
Code.
31. The appellant has been convicted for offence under
Section 363 of the IPC, which is punishable for kidnapping.
Kidnapping has been defined under Section 359 of the IPC.
According to Section 359 of the IPC, kidnapping is of two
kinds: kidnapping from India and kidnapping from lawful
guardianship. Section 361 of the IPC defines kidnapping from
lawful guardianship which states as under:-
“361. Kidnapping from lawful guardianship.-Whoever
takes or entices any minor under sixteen years of age if
a male, or under eighteen years of age if a female, or
any person of unsound mind, out of the keeping of the
lawful guardian of such minor or person of unsound
mind, without the consent of such guardian, is said to
kidnap such minor or person from lawful guardianship.”
32. The object of Section 359 of the IPC is at least as much
to protect children of tender age from being abducted or
seduced for improper purposes, as for the protection of the
rights of parents and guardians having the lawful charge or
custody of minors or insane persons. Section 361 has four
ingredients:-
(1) Taking or enticing away a minor or a person of
unsound mind.
32
(2) Such minor must be under sixteen years of age, if a
male, or under eighteen years or age, if a female.
(3) The taking or enticing must be out of the keeping of the
lawful guardian of such minor or person of unsound mind.
(4) Such taking or enticing must be without the consent of
such guardian.
So far as kidnapping a minor girl from lawful guardianship is
concerned, the ingredients are : (i) that the girl was under 18
years of age; (ii) such minor was in the keeping of a lawful
guardian, and (iii) the accused took or induced such person
to leave out of such keeping and such taking was done
without the consent of the lawful guardian.
33. Furthermore, in the matter of S. Varadarajan vs. State
of Madras1, which has been reiterated in the matters of
Ratikanta Sutar and Others vs. State of Odisha and
Others2 as well as Vaibhav Bhaskar Kole vs. The State of
Maharashtra3 , the Hon’ble Supreme Court took the view
that if the prosecution establishes that though immediately
prior to the minor leaving the father’s protection no active part
was played by the accused, he had at some earlier stage
solicited or persuaded the minor to do so and held that if
evidence to establish one of those things is lacking, it would
1 (1965 ) 1 SCR 243
2 2021 SCC OnLine Ori 2407
3 2015 SCC OnLine Bom 4540
33
not be legitimate to infer that the accused is guilty of taking
the minor out of the keeping of the lawful guardian and held
as under:-
“It would, however, be sufficient if the prosecution
establishes that though immediately prior to the minor
leaving the father’s protection no active part was played
by the accused, he had at some earlier stage solicited
or persuaded the minor to do so. If evidence to
establish one of those things is lacking it would not be
legitimate to infer that the accused is guilty of taking the
minor out of the keeping of the lawful guardian merely
because after she has actually left her guardian’s house
or a house where her guardian had kept her, joined the
accused and the accused helped her in her design not
to return to her guardian’s house by taking her along
with him from place to place. No doubt, the part played
by the accused could be regarded as facilitating the
fulfilment of the intention of the girl. But that part falls
short of an inducement to the minor to slip out of the
keeping of her lawful guardian and is, therefore, not
tantamount to “taking”.”
34. Reverting to the facts of the present case, and in the
light of the ingredients of the offence of kidnapping from
lawful guardianship as defined under Section 361 of the IPC,
punishable under Section 363 of the IPC, as well as the
principles of law laid down by the Hon’ble Supreme Court in
S. Varadarajan (supra), it is evident that it is not in dispute
that the prosecutrix was below 18 years of age on the date of
the incident. The essential ingredients of Section 363 IPC are
the taking or enticing of a minor out of the keeping of the
lawful guardian without the consent of such guardian.
Likewise, for an offence under Section 366-A IPC, the
prosecution is required to prove inducement of a minor girl
34
with the intent that she may be forced or seduced to illicit
intercourse. From the evidence of the prosecutrix (PW-1), it
stands established that after leaving her house, she went to
the residence of accused Shivdhari and remained in his
company. It has further come in her evidence that thereafter
she was taken to the house of co-accused Omprakash during
the night hours. Even assuming that the prosecutrix had
accompanied the accused voluntarily, the consent of a minor
is of no legal consequence in the eye of law. Further, PW-2
father of the prosecutrix has categorically stated that he had
not given consent for his daughter to leave the house or to go
with the accused. Thus, the element of removal from the
lawful guardianship stands duly proved. Moreover, the
conduct of accused- Shivdhari in taking, accompanying or
facilitating the movement of a minor girl and leaving her at
the house of another adult male during the night hours clearly
indicates inducement within the meaning of Section 366-A
IPC. The intention of the accused is to be gathered from the
surrounding circumstances, as direct evidence of intention is
seldom available. The attending circumstances reasonably
lead to the inference that the accused-Shivdhari Yadav was
aware of and intended the consequences of his act, namely
that the minor girl may be subjected to illicit intercourse. The
35
defence plea regarding existence of a land dispute between
the families does not demolish the prosecution case,
particularly when the core ingredients of the offences stand
established by reliable evidence on record. No material
contradiction, omission or inherent improbability has been
brought on record so as to render the finding of guilt recorded
by the trial Court unsafe.
35. In view of the aforesaid analysis, this Court is satisfied
that the prosecution has proved beyond reasonable doubt
that appellant- Shivdhari Yadav committed the offences
punishable under Sections 363 and 366-A of IPC. The
conviction recorded by the learned trial Court is based on
proper appreciation of evidence and does not suffer from any
perversity or illegality, and the same is hereby affirmed.
36. As regards the sentence, considering the totality of the
facts and circumstances of the case, and taking into account
that the accused Shivdhari Yadav has remained in custody
for about four months and ten days, and has been facing the
ordeal of litigation since April, 2014, i.e., for more than eleven
years, and further that no criminal antecedents have been
brought on record against him, this Court is of the considered
opinion that the ends of justice would be adequately met if,
36
while maintaining his conviction under Sections 363 and 366-
A of the IPC, the substantive sentence of imprisonment is
reduced to the period already undergone by him. However,
the fine amount of Rs.100/- each imposed by the trial Court is
enhanced to Rs.20,000/-. The default stipulation as imposed
by the trial Court shall remain intact. Upon deposit of the
enhanced fine amount, the same shall be disbursed to the
victim/prosecutrix as compensation under Section 357
Cr.P.C., after due verification and in accordance with law.
37. Accordingly, Criminal Appeal No.158/2015 is partly
allowed. The conviction of the appellant Shivdhari Yadav
under Sections 363 and 366-A of the IPC is hereby affirmed;
however, his sentence is modified to the period already
undergone by him, subject to payment of the enhanced fine
as directed hereinabove.
38. Appellant- Shivdhari Yadav is reported to be on bail.
Keeping in view the provision of Section 437-A of Cr.P.C., the
appellant is directed to forthwith furnish personal bond in
terms of Form No.45 prescribed in the Cr.P.C. of sum of
Rs.25,000/- with one surety in the like amount before the trial
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
37
grant of leave, the aforesaid appellant on receipt of notice
thereof shall appear before the Hon’ble Supreme Court.
39. In the result:
• ACQA No.103/2015 preferred by the appellant/State
challenging the acquittal of co-accused Omprakash is
hereby dismissed.
• Criminal Appeal No.158/2015 preferred by accused-
Shivdhari Yadav against his conviction and sentence is
partly allowed.
37. Registry is directed to transmit the trial Court record along
with a copy of this judgment to the concerned trial Court
forthwith for information and necessary compliance.
Sd/- Sd/-
(Sanjay S. Agrawal) (Amitendra Kishore Prasad)
Judge Judge
Vishakha