Chattisgarh High Court
Chandrashekhar vs State Of Chhattisgarh on 23 March, 2026
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2026:CGHC:13643
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1829 of 2017
1 - Chandrashekhar S/o Lal Singh Sika, Aged About 22 Years R/o
Kosmarra, Police Station Komakhan, District Mahasamund
Chhattisgarh., Chhattisgarh
2 - Devnarayan Thakur S/o Dashrath Thakur Aged About 19 Years R/o
Matguda, Police Station Komakhan, District Mahasamund
Chhattisgarh., District : Mahasamund, Chhattisgarh
... Appellants
versus
State Of Chhattisgarh Through The Incharge, Chowki Lodam, Police
Station Komakhan, District Mahasamund Chhattisgarh., Chhattisgarh
... Respondent(s)
For Appellants : Ms. Anjali Pradhan, Advocate
For Respondent(s) : Mr. Vivek Mishra, Panel Lawyer
Hon’ble Shri Justice Arvind Kumar Verma
Judgment on Board
23/03/2026
1. The appellants have filed the instant appeal under Section 374(2)
of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.’)
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questioning the judgment of conviction and order of sentence
dated 13.11.2017 passed in Special Criminal Case H-34/2016
whereby the appellants stand convicted as under :-
Appellant No. 1- Chandrashekhar
Conviction Sentence
U/s 363 of IPC R.I. for 1 year and fine of Rs. 500/-, in
default of payment of fine, R.I. for 1
month.
Appellant No. 2- Devnarayan
Conviction Sentence
U/s 363/34 of IPC R.I. for 1 year and fine of Rs. 500/-, in
default of payment of fine, R.I. for 1
month.
2. The prosecution case, in brief, is that the complainant Dubelal
Sahu lodged a written report at Police Station Komakhan stating
that on the night of 15.05.2016, all family members were asleep.
In the morning at about 5:00 AM, when he went to wake up his
daughter (the prosecutrix) in her room, she was found missing.
Despite making inquiries in the neighbourhood and at relatives’
houses, her whereabouts could not be traced. It was suspected
that someone had enticed and taken her away. It was also
reported that one Chandrashekhar, a resident of Village
Kosmarra, was missing from his house since the date of the
incident. On the basis of the said report, FIR bearing Crime No.
39/2016 was registered at Police Station Komakhan under
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Section 363 IPC against accused Chandrashekhar as a suspect.
During investigation, the spot map and site plan were prepared,
and documents relating to the date of birth of the prosecutrix were
seized. On 05.06.2016, the prosecutrix was recovered and her
statement was recorded, wherein she stated that she was
mentally disturbed after failing in Class 10 th examinations. On the
night of 15.05.2016, she had a conversation with accused
Chandrashekhar, who told her that he would come to take her and
asked her to meet him outside the house. Thereafter, at about
11:30 PM, when her parents were asleep, she left her house
along with some clothes and a mobile phone. She further stated
that a magic vehicle was waiting outside, in which accused
Chandrashekhar, co-accused Devnarayan, and the driver were
present. She went along with them to the house of
Chandrashekhar’s uncle. Thereafter, Devnarayan and the driver
returned with the vehicle. The prosecutrix stayed at Raipur for
about five days, thereafter at Bhilai for two days at a relative’s
house, then moved to Kawardha where the accused worked in a
restaurant. Subsequently, on 30.05.2016, they returned to Bhilai,
and on 03.06.2016, went to Bilaspur. At Bilaspur Railway Station,
she was found by the police and was produced before the Child
Welfare Committee, Bilaspur. During investigation, statements of
witnesses were recorded and the statement of the prosecutrix
under Section 164 CrPC was also recorded before the Court. The
accused persons were arrested. Upon completion of investigation,
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charge-sheet was filed against the accused persons for offences
punishable under Sections 363, 366, 34 IPC and Sections 8 and
17 of the Protection of Children from Sexual Offences Act, 2012
3. After hearing learned counsel for the parties and appreciating
evidence available on record, the Sessions Court vide judgment
dated 13.11.2017 convicted and sentenced the appellants for the
offences in the manner as described in para 2 of this judgment.
Hence, this appeal.
4. In order to prove the charges against the appellant, prosecution
examined as many as 11 witnesses which are as follows: Amit
Singh (PW-1), Patwari Ramsharan Sahu (PW-2), Prosecutrix
(PW-3), Dubelal Sahu (PW-4), Smt. Hira Devi (PW-5), Rajendra
Sahu (PW-6), Chitaram (PW-7), Surendra @ Mikky Chhabra (PW-
8), Devkumari (PW-9), Head Constable Jayant Barik (PW-10),
Inspector D.R. Majhi (PW-11).
5. The prosecution exhibited several documents, including: Revenue
records and birth-related documents (Ex. P-1), Spot maps (Ex. P-
2, P-3, P-9), Khasra Panchshala (Ex. P-4), Seizure memo (Ex. P-
5), Statement under Section 164 CrPC (Ex. P-6), Written
complaint (Ex. P-7), FIR (Ex. P-8), Supurdnama (Ex. P-10), Police
statements of witnesses (Ex. P-11 to P-14), Official
correspondence (Ex. P-15, P-16), Arrest memos (Ex. P-17, P-18),
Intimation of arrest (Ex. P-19 to P-21).
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6. Statement of appellants were also recorded under Section 313 of
CrPC in which he pleaded innocence and false implication.
However, no defence witness was examined by the appellant.
After completion of trial, Sessions Court convicted and sentenced
the appellants in the manner as described above. Hence, this
appeal.
7. Learned counsel appearing for the appellants contended that the
trial Judge has acted with material anomalies and illegality in
passing the impugned judgment of conviction and sentence,
which is liable to be set aside by this Hon’ble Court. That, the
learned trial Judge has utterly failed to appreciate the parol and
documentary evidence and wrong finding has been recorded in
respect of the commission of offence. That, the learned trial Judge
has failed to appreciate that the prosecution has failed to prove its
case beyond the reasonable doubt, more so the offence under
Section 363 of IPC. That, the learned trial Court has failed to
appreciate that the prosecution has not produced the reliable
evidence against the present appellants and the material
witnesses of the prosecution have turned hostile. That, in the
present case the trial Court has not appreciated that the
prosecution has not proved the age of the prosecutrix as being
minor. Therefore, the offence under Section 363 of IPC is not
proved against the present appellant. Apart from this the medical
evidence on record also suggests that the victim was major on the
date of alleged offence. That, the learned trial judge has
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committed an error in holding the appellants guilty under the
above mentioned sections whereas no offence as such is made
out against the present appellant.
8. On the other hand, learned counsel for the State opposes the
submissions of learned counsel for the appellant and submits that
the prosecution has successfully proved the commission of
offense by the appellants beyond reasonable doubt and the
appellants have been rightly convicted and sentenced by the trial
Court. Therefore, there is no illegality or infirmity in the finding of
learned trial Court and the impugned judgment of the Court below
needs no interference.
9. I have heard learned counsel for the respective parties, perused
the judgment of the trial Court as well as other material available
on record with utmost circumspection.
10. The first question to be considered by this Court is whether on the
date of incident the prosecutrix was minor?
11. The core issue involved in the present appeal is whether the
prosecutrix was a “minor” on the date of the incident. The
prosecutrix (PW-3), her father (PW-4), and her mother (PW-5)
have stated that her age was about 17 years and 9 months.
However none of the witnesses produced any independent or
reliable proof of date of birth. The father (PW-4) admitted that he
does not remember the date of birth of his daughter. It is also
admitted that the date of birth was recorded based on information
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given to the village Kotwar. Thus, the oral evidence is vague,
approximate, and unreliable. PW-1/ Amit Singh, school teacher
proved the date of birth (31.08.1998) on the basis of the school
admission register. However it is not clear on what basis such date
of birth was originally recorded. The witness admitted that the
entry was not made by him. The source of the entry (whether
based on Kotwari register or hospital record) is unknown.
12. The investigating officer (PW-11) did not seize the Kotwari
register. Even the birth certificate (Ex.P/01) was not formally
seized during investigation. The best evidence regarding date of
birth has not been brought on record. This constitutes a serious
lapse in investigation.
13. From the above discussion, the conclusions emerge that there is
no primary, reliable, and independent proof of the prosecutrix’s
date of birth. The school record is only secondary evidence and its
source remains doubtful. Oral evidence is inconsistent and based
on approximation. There are material lapses in the investigation,
creating serious doubt in the prosecution case. Therefore, this
Court is of the considered opinion that the prosecution has failed
to prove beyond reasonable doubt that the prosecutrix was below
18 years of age on the date of the incident. Accordingly, it is held
that the prosecutrix has not been proved to be a minor on the date
of the incident.
14. There is no any documentary evidence available on record that on
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what basis date of birth of prosecutrix is mentioned as 31.08.1998,
no equivalent matric certificate and also no birth certificate issued
by the Corporation or Panchayat has been produced regarding
date of birth of prosecutrix. Even the ossification test of the
prosecutrix has not been conducted. There is no legally admissible
evidence with regard to age of prosecutrix that on the date of
incident, she was minor and less than 18 years of age. In absence
of examination of author of the School Admission and Discharge
Register, the same cannot be taken into consideration to
determine the age of the prosecutrix. School Admission and
Discharge Register is a weak type of evidence.
15. Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 provides for presumption and determination of
age. The same reads as under :
“94. Presumption and determination of age.– (1)
Where, it is obvious to the Committee or the Board,
based on the appearance of the person brought
before it under any of the provisions of this Act (other
than for the purpose of giving evidence) that the said
person is a child, the Committee or the Board shall
record such observation stating the age of the child
as nearly as may be and proceed with the inquiry
under section 14 or section 36, as the case may be,
without waiting for further confirmation of the age.
9(2) In case, the Committee or the Board has
reasonable grounds for doubt regarding whether the
person brought before it is a child or not, the
Committee or the Board, as the case may be, shall
undertake the process of age determination, by
seeking evidence by obtaining–
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the
concerned
examination Board, if available; and in the absence
thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any other
latest medical age determination test conducted on the
orders of the Committee or the Board:
Provided such age determination test conducted on
the order of the Committee or the Board shall be
completed within fifteen days from the date of such
order.
(3) The age recorded by the Committee or the Board to
be the age of person so brought before it shall, for the
purpose of this Act, be deemed to be the true age of
10that person.
16. The Hon’ble Apex Court in the matter of Alamelu and another
Vs. State, represented by Inspector of Police, (2011) 2 SCC
385 observed in paras 40 & 48 of its judgment as under:
“40. Undoubtedly, the transfer certificate, Ex.P16
indicates that the girl’s date of birth was 15th June, 1977.
Therefore, even according to the aforesaid certificate,
she would be above 16 years of age (16 years 1 month
and 16 days) on the date of the alleged incident, i.e.,
31st July, 1993. The transfer certificate has been issued
by a Government School and has been duly signed by
the Headmaster. Therefore, it would be admissible in
evidence under Section 35 of the Indian Evidence Act.
However, the admissibility of such a document would be
of not much evidentiary value to prove the age of the girl
in the absence of the material on the basis of which the
age was recorded.”
“48. We may further notice that even with reference to
Section 35 of the Indian Evidence Act, a public document
has to be tested by applying the same standard in civil
as 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
11register or otherwise may be used for various
purposes, namely, for obtaining admission; for
obtaining an appointment; for contesting
election; registration of marriage; obtaining a
separate unit under the ceiling laws; and even
for the purpose of litigating before a civil forum
e.g. necessity of being represented in a court
of law by a guardian or where a suit is filed on
the ground that the plaintiff being a minor he
was not appropriately represented therein or
any transaction made on his behalf was void
as he was a minor. A court of law for the
purpose of determining the age of a party to
the lis, having regard to the provisions of
Section 35 of the Evidence Act will have to
apply the same standard. No different standard
can be applied in case of an accused as in a
case of abduction or rape, or similar offence
where the victim or the prosecutrix although
might have consented with the accused, if on
the basis of the entries made in the register
maintained by the school, a judgment of
conviction is recorded, the accused would be
deprived of his constitutional right under Article
21 of the Constitution, as in that case the
12accused may unjustly be convicted.”
17. Now the question before this Court is whether trial court is justified
in convicting the appellant under Section 363 of IPC?
18. The prosecutrix (PW-3), in her evidence, has clearly stated that
she knew the accused Chandrashekhar and used to talk to him
over phone. She has further admitted in her cross-examination
that she had voluntarily gone with him without informing her family
for the purpose of घूमना (roaming). She has also categorically
stated that the accused did not commit any wrongful act or rape
with her.
19. From her testimony, it is evident that there was no element of
force, threat, inducement or deceit. Rather, the conduct of the
prosecutrix shows that she accompanied the accused of her own
volition. It is also significant that the prosecutrix stayed with the
accused at different places, yet there is no allegation of any sexual
assault. Even independent witnesses have not supported the
prosecution case regarding any unlawful or immoral intention on
the part of the accused.
20. Insofar as the conviction under Section 363 IPC is concerned, the
prosecution was required to prove that the prosecutrix was a minor
on the date of the incident. However, from the evidence on record,
the age of the prosecutrix has not been conclusively proved in
accordance with law. No reliable documentary evidence has been
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brought on record to establish her age beyond reasonable doubt.
In absence of clear proof of minority, the essential ingredient of the
offence under Section 363 IPC is not established. Moreover, even
otherwise, the voluntary conduct of the prosecutrix creates a
serious doubt regarding the prosecution case. The learned trial
Court, has erred in convicting them under Section 363 IPC without
there being cogent and reliable evidence regarding the minority of
the prosecutrix and the absence of her consent.
21. Close scrutiny of the evidence led by the prosecution would make
it clear that the prosecutrix was a consenting party. Nowhere she
disclosed at any point of time that the appellant was taking her by
forcefully and appellant has committed sexual intercourse with her
without her consent.
22. Thus, considering the entire facts and circumstances of the case
particularly, the evidence with regard to kidnapping of the
prosecutrix, the prosecutrix herself has denied that the accused
had enticed her on the pretext of marriage and taken her with him.
She denied that she had gone with the accused under his
inducement. She further denied that the accused had raped her
during the night on the pretext of marriage she called the accused
and went with along with him on her own will. The prosecution has
failed to prove that prosecutrix was minor on the date of incident.
The evidence shows that the victim went with the appellant
voluntarily. Hence, this Court is of the considered view that
prosecution has failed to prove that the appellant has kidnapped
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the prosecutrix. Therefore, in the above facts and circumstances
of the case, offence under Sections 363 of IPC would not be
made out against the appellants.
23. The appeal is allowed accordingly. The judgment of conviction
and order of sentence dated 13.11.2017 is hereby set aside.
Appellants stands acquitted of all the charges levelled against
them. The appellants are reported to be on bail. Their Bail bonds
are not discharged at this stage and the same shall remain
operative for a further period of 6 months in light of Section 437-A
of Cr.P.C.
24. The trial Court record (TCR) along with a copy of this judgment be
sent back immediately to the trial Court concerned for compliance
and necessary action.
Sd/-
(Arvind Kumar Verma)
JUDGE
Madhurima