Chattisgarh High Court
Bodhan vs State Of Chhattisgarh on 7 May, 2026
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
2026:CGHC:21381
AFR
Digitally
signed by
SANTOSH
SANTOSH KUMAR
KUMAR SHARMA
SHARMA Date:
2026.05.08 HIGH COURT OF CHHATTISGARH AT BILASPUR
10:52:56
+0530
CRA No. 504 of 2005
Judgment reserved on 09.04.2026
Judgment delivered on 07.05.2026
Bodhan S/o. Sukhdayal, Aged about 22 years, Resident of Village
Piparlod, Police Station Patharia, Tahsil Mungeli, District Bilaspur (CG)
... Appellant (s)
versus
State Of Chhattisgarh Through Police Station Patharia, District Bilaspur
(CG)
... Respondent(s)
For Petitioner(s) : Mr. Pradeep Kumar Jogi, Advocate
For Respondent(s) : Mr. Manish Kashyap, Panel Lawyer
Hon’ble Shri Justice Narendra Kumar Vyas
C A V Judgment
1. This appeal is preferred under Section 372(2) of the Code of Criminal
Procedure 1973 against judgment dated 29.03.2005 passed by Second
Additional Sessions Judge, (FTC) Mungeli (C.G.) in Sessions Trial No.
270 of 2004, wherein the said court convicted the appellant for
commission of offence under Sections 366 and 376 of the IPC and
sentenced him to undergo R.I. for 3 years and to pay fine of Rs. 500/-
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under Section 366 IPC, R.I. for seven years and to pay fine of Rs. 1000/-
under Section 376 IPC with default stipulations and direction to run the
sentences concurrently. The trial Court has convicted both the accused
persons but since the only one accused has preferred the appeal,
therefore, this Court is examining the case of the present appellant only.
2. Case of the prosecution, in brief, is that Head Constable Padum Das
Verman (PW-10) received the information of missing girl who has left the
house without informing to anybody thereafter, he registered missing
report No. 2 of 2004 at Police Station Pathariya wherein father of the
victim stated that on 06.02.2004 after taking meal his daughter went to
sleep in other room with his daughter-in-law, he along with his son was
sleeping in another room. At about 3 PM, in the night, his daughter-in-law
informed her husband that victim without informing to anybody has left
the house. Thereafter, FIR No. 35 of 2004 under Section 363 and 366
IPC was registered against the appellant and the matter was
investigated.
3. During investigation, it is revealed that appellant/Bodhan Sathami, allured
the victim on the assurance of marriage and took her to Bhopal, Kohe-
Fiza. On the said information, the Police recovered the victim from the
possession of the appellant. After obtaining consent of the victim, medical
examination of the victim was done (Ex.P-3A) by PW-3 Dr. Usha
Suryavanshi who for determination of age of the victim has advised for
radiologist. Vaginal slides of the victim were prepared and sent to FSL for
examination (Ex.P-18). The accused was also subjected to medical
3
examination vide Ex.P-8 by Dr. D.R. Singharul. Regarding date of birth of
the victim, certificate was issued by the Headmaster of the School (Ex.P-
2) was produced by the prosecution wherein her date of birth was
mentioned as 08.09.1990. The Police arrested the appellant and
recovered the victim from his possession. Subsequently, offence under
Section 363, 366, 376, 420, 368, 120 read with Section 34 IPC was also
added against the appellant.
4. After completion of the investigation, charge sheet was filed before the
Court of Judicial Magistrate First Class, Mungeli, who in turn committed
the case to the Court of Second Additional Sessions Judge (FTC)
Mungeli registered as Sessions Case No. 270 of 2004. The learned trial
Court framed the charges under Section 366 and 376 of the IPC against
the appellant.
5. The prosecution in order to prove the guilt of the appellant examined 12
witnesses i.e. Bhupal (PW-1), Assistant Teacher Suresh Dubey (PW-2),
Medical Officer Smt. Usha Suryavanshi (PW-3), victim (PW-4), Punit
(PW-5), Vimla Manhar (PW-6), Vimla Bai (PW-7), Dr. D.R. Sigraul (PW-
8), Krishna Kumar (PW-9), Padam Das Verman (PW-10), J.R. Chauhan
(PW-11) and Shrawan Kumar (PW-12) and exhibited the documents from
Ex.P-1 to Ex.P-18. Statement of the accused/appellant was recorded
under Section 313 CrPC in which he denied the incriminating
circumstances appearing against him in the prosecution case, pleaded
innocence and false implication. The appellant in support of his
submission has examined Chaitibai (DW-1), Bhagwat (DW-2) and Titra
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(DW-3) and annexed statement of victim (Ex.D-1), statement of Punitram
(Ex.D-2) and statement of Vimlabai (Ex.D-3).
6. After hearing the parties, learned Sessions Judge (FTC) on the basis of
material on record and upon considering the statements of the witnesses
has passed the judgment of conviction and order of sentence against the
appellant as mentioned above. Being aggrieved with the judgment of
conviction and order of sentence, the appellant preferred this Criminal
Appeal. During the trial, the appellant was remained in jail from
21.03.2004 to 27.08.2004 and other accused Sukhdayal from 21.03.2004
to 07.05.2004. This Court vide order dated 11.07.25005 has released the
appellant on bail.
7. Victim (PW-4) in her statement deposed that the Bodhan and Patiram
took her to the house of Kanchhediram where they locked her in a room
whole day and on the mid night the appellants took her to Sargaon on a
bicycle and thereafter they took her to Bilaspur in a bus and from
Bilaspur to Bhopal in a train where appellant Bodhan committed forceful
sexual intercourse with her. The victim further deposed that after two or
three days of incident, her uncle came to Bhopal where she met him. She
further deposed that appellant made pressure on his uncle for Jaimala
Shadi and obtained signature of his uncle and thereafter his uncle
returned to his home from Bhopal after five days of incident. She further
deposed that Sukhdayal performed her marriage with Bodhan and for
this purpose he called camera man at Bhopal where he took photograph
of their marriage and photographs of marriage were taken out. The victim
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further deposed that she stayed about one month in Bhopal where they
resided as husband and wife and after one month two girls and one boy
of police person came there and took her to Pathariya from Bhopal and
handed over her to her mother. She further deposed her medical
examination was done at Mungeli and her X-ray was done at Bilaspur
wherein her age was disclosed as 14 years. The victim has further stated
that whatever she was tutored by the appellant she deposed before
Bhopal Police. She further stated that the appellant made pressure on
her for marriage and in the cross examination, she has admitted that she
has informed the Police at Bhopal regarding her affair with appellant
Bodhan but voluntarily stated that as per tutoring of appellant and also
stated that when she was residing in the house of Kanchhedi, she has
not made any hue and cry and also admitted that Patiram and his wife
have called upon her from the house. She has also admitted that when
the train reached at Bilha other villagers have also met her and while
talking with them she reached to Bhopal. She has also admitted that
when she was residing at Bhopal constable Padum Verman has met her
and also admitted that when her uncle Gokul reached to Bhopal, she has
not informed him about forceful physical relationship by the appellant.
She has again admitted at Bhopal she met with her uncle but she has not
informed about forcefully taken her to Bhopal and making physical
relationship with her.
8. (PW-7) mother of the victim has deposed before the Court that appellant
Bodhan took her daughter from her lawful guardianship and when they
6
tried to find out her daughter but did not trace out her. She further
deposed that “Sahas” informed them that the Bodhan took the victim to
Bhopal with him then they send Gokul/uncle of the victim to find out her
daughter at Bhopal and after returned Gokul informed that Bodhan
committed marpit with him for creating pressure and to stop him there. In
his cross-examination, she has admitted that Gokul/uncle of the victim
talked her over the telephone.
9. Suresh Dubey, Assistant Teacher (PW-2) Headmaster of School
Government Primary School, Piparload, Block Pathariya stated that on
05.03.2004, he has issued birth certificate of Pushpa and as per original
dakhil kharij register of year 1993 to 2001, date of birth of the victim was
08.09.1990. He has further stated on the application of Punit, he has
issued date of birth certificate of victim (Ex-P-2). In the cross-
examination, he stated that he was not author of entry made in the dakhil
kharij register. He is unable to state that who has made date of birth of
victim in the register and on what basis her date of birth is mentioned.
The victim was admitted in class one and she left the school in the class
three in the year 2000.
10. Punit (PW-5) grand-father of the victim has deposed before the Court
that he lodged the FIR in the Police Station Pathariya. He further
deposed that Sahasram Sahu informed him that his granddaughter was
with Bodhan at Bhopal then he sent his son Gokul to Bhopal for enquiry
and his son informed him that Bodhan kept his grand-daughter with him
7
as his wife. He further deposed that as per (Ex.D-2), age of his grand-
daughter was 14 years at the time of incident.
11. Dr. Smt. Usha Suryavanshi (PW-3) medically examined the victim and
advised for examination of the victim by a radiologist for age
determination (Ex.P-3). She further deposed that on in July, 2004 she
examined the victim wherein she did not find any external or internal
injury on her body. In her opinion, the victim was habitual to sexual
intercourse. In cross- examination she admits that during medical
examination of the victim she did not find any symptom of forcible sexual
intercourse on her body and for determination of age she has referred
the victim to the Radiological department, Bilaspur.
12.Dr. D.R. Sighraoul (PW-8) is the doctor who medically examined
accused/appellant wherein he found that the appellant was capable of
performing sex.
13.Chaitibai (DW-1) deposed that the victim was capable for marriage and
her parents were also ready for marriage, at that time people of village
Pakariya have visited the house of victim but victim was reluctant for
marriage as she was in love affair with Bodhan. In the cross-examination,
she remained affirmed that the victim was in love with the appellant but
she has stated that victim was not capable for marriage and also denied
that the accused has abducted the victim or she ran away with the
appellant. She has further admitted that the victim was in love affair with
the appellant since one year and she studied only class-two.
8
14. Bhagwat (DW-2) deposed that the victim used to visit the house of
appellant and she was in love affair with the appellant. In the cross-
examination, he affirmed about the love affair between the appellant and
the victim. He has further admitted that after 6 to 7 years of leaving
school by the victim discussion regarding her marriage was started.
15. Learned counsel for the appellant would submit that from the entire
evidence produced by the prosecution, it is quite vivid, that there was
love affair between the appellant and the victim. He would further submit
that date of birth of the victim has not been proved by the prosecution by
cogent evidence as the prosecution failed to produce any record on the
basis of which the date of birth has been recorded in the Dakhil Kharij
register. He would further submit that the date of birth should be proved
by coget evidence in the case related to commission of rape on the
women, as such in absence of any cogent evidence regarding date of
birth of victim, the offence of rape cannot be proved against the appellant
thus he would pray for acquitting the appellant for offence under Sections
376 of the IPC.
16. He would further submit that so far as offence under Section 366 IPC is
concerned, the prosecution is unable to prove any material on record
regarding abduction of victim on the pretext of marriage by the appellant
which is sin qua non for conviction of the appellant under Section 366 of
the IPC. Thus he would pray for acquitting the appellant from the charges
under Section 376 and 366 of the IPC. To substantiate his submission, he
would refer to judgment of various High Courts in the case of Shiv
9
Prashad @ Kartaru vs. State (GNCT) of Delhi in CRL.A. No. 653 of
2023 decided on 15.12.2023 and Ayub @ Mubarik son of Hurmat vs.
State of Rajasthan in CRA (Db) No. 124 of 2021 decided on 8 th
August 2025.
17. On the other hand, learned State counsel submits that the victim has
proved its case beyond reasonable doubt. Her evidence is sufficient to
hold the appellant guilty for the said offence. He would submit that the
prosecution has brought home the offence against the appellant and has
proved its case beyond reasonable doubt. Thus the appellant has rightly
been convicted and sentenced for the aforesaid offence. It is argued that
the testimony of the victim is cogent, natural, and consistent on material
particulars, and she has supported the prosecution case not only in her
statement under Section 161 CrPC but also during her deposition before
the court. He would further submit that there is clinching evidence of
abducting has been placed on record by the prosecution therefore,
approach of the trial court in this regard being based on proper
appreciation of the evidence are in conformity with law and the same
does not require any interference at this stage either for acquittal to the
appellant or modifying his conviction and sentence and would pray for
dismissal of this appeal.
18. Heard counsel for the parties and perused the material available on
record with utmost circumspection.
19. From this submission, the points emerged for determination for this Court
are;-
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(i) Whether the prosecution was able to prove that the victim was
below 16 year and was not competent to give consent for
physical intercourse to convict the appellant for the offence
under Section 376 IPC ?
(ii) Whether the prosecution was able to prove beyond reasonable
doubt that the appellant is liable to be convicted for commission
of offence under Section 366 IPC ?
Discussion and analysis on point No.1.
20. From the evidence of Dr. Smt. Usha Suryavanshi (PW-3), it is quite vivid
that she advised for radiological examination of the victim for
determination of the age but the prosecution despite availability of
radiological report in the record of the case has not exhibited the same
as the report annexed with the original record of the department is
available wherein the age of the victim has been written above 15 years
and below 17 years. Thus from the report, it is quite vivid, that the victim
was above 16 years and despite this evidence available on record the
prosecution has not exhibited the same for the reason best known to
them. Even otherwise, it is well settled legal position of law that the
prosecution should place on record all the evidence collected during
investigation which they have miserably failed to do it.
21. The learned trial Court while relying upon the certificate prepared by the
Headmaster of the school on the strength of dakhil kharij register has
held that the age of the victim is 14 years. This finding suffers from
perversity and illegality as the prosecution was unable to examine the
witness who has made entry in the dakhil kharij register. In absence of
author of entry made in the dakhil kharij register, it cannot be held to be
proved as held by the Hon’ble Supreme Court in the case of Manak
11
Chand Alias Mani vs. State of Haryana reported in (2024) 20 SCC
561 wherein the Hon’ble Supreme Court has held as under:-
18. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp
SCC 604 had observed that the date of birth in the register of a
school would not have any evidentiary value without the
testimony of the person making the entry or the person who gave
the date of birth.
“14….The date of birth mentioned in the scholar’s register has
no evidentiary value unless the person who made the entry
or who gave the date of birth is examined. The entry
contained in the admission form or in the scholar’s register
must be shown to be made on the basis of information given
by the parents or a person having special knowledge about
the date of birth of the person concerned. If the entry in the
scholar’s register regarding date of birth is made on the
basis of information given by parents, the entry would have
evidentiary value but if it is given by a stranger or by
someone else who had no special means of knowledge of
the date of birth, such an entry will have no evidentiary
value.
19. In our opinion, the proof submitted by the prosecution with
regard to the age of the prosecutrix in the form of the school
register was not sufficient to arrive at a finding that the
prosecutrix was less than sixteen years of age, especially when
there were contradictory evidences before the Trial Court as to
the age of the prosecutrix. It was neither safe nor fair to convict
the accused, particularly when the age of the prosecutrix was
such a crucial factor in the case.
20. Secondly, we cannot lose sight of the fact that since age was
such a crucial factor in the present case, the prosecution should
have done a bone ossification test for determination of the age
of the prosecutrix. This has not been done in the present case.
On the other hand, as per the clinical examination of the
prosecutrix which was done by PW-1, Dr. Kulwinder Kaur on
28.10.2000 and which has also been referred to in the preceding
paragraph of the present judgment, we find that the secondary
sex characteristics of the prosecutrix were well developed. The
doctor in her report mentions that the prosecutrix is a “well built
adult female”. At another place it mentions “well developed pubic
hair” and “external genitalia were fully developed and normal”. It
then records her age as sixteen years as told to her by the
mother of the prosecutrix. The report records that there were no
external marks of injury over her breast, neck, face, abdomen
12and thigh. The report then concludes, inter alia, about her age as
under:
“At the time of medical examination of the patient, no force
seems to have been used against her. I cannot opine
about the age of the patient on the basis of development
of her pubic hairs and genitalia etc. The patient was
habitual to sexual intercourse because her labia minora
was hypertrophied and hymen admitted two fingers.”
21. The doctor has refrained from giving an opinion herself as to
the age, but in the same report the age is recorded as sixteen
years. Under the facts and circumstances of the case, what was
required to be done was a bone ossification test in order to
come to some reliable conclusion as to the age of the
prosecutrix. This has evidently not been done. Moreover, it has
also come in evidence that the mother of the prosecutrix too
had said that her daughter was sixteen years of age.
22. Considering the above stated legal position and the fact that though the
radiological report was available on record, the prosecution has not
exhibited the same as it goes against the prosecution case. From the
report of the doctor available on record, it is quite vivid, that the victim
was above 15 years and below 17 years, thus she was capable to give
consent for physical relationship in absence of any infirmity to give
consent. Thus, the accused cannot be convicted for commission of
offence of rape.
23.This finding further supports from the corroborative evidence on record,
particularly the statement of the victim wherein she has stated in her
examination-in-chief itself that she remained in Bhopal for one month and
she met so many villagers while going to Bhopal but not narrated the
incident to anybody even to her uncle but tried to dilute the issue by
stating that the accused has threatened her as well as assaulted the
uncle but no such report was lodged by the uncle regarding alleged
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threatened or assault made by the accused. Further considering the
evidence of the defense wherein they have stated that the victim was in
love affair with the appellant which remained unshaken in the cross
examination. Thus, it is proved beyond reasonable doubt that it is case of
consent which is corroborated by the medical as well as ocular evidence
of doctor (Ex.P-3), wherein doctor has stated that no injury was found on
the private part of the victim, this clearly demonstrates that the victim was
consenting party and it is a consensual act performed by the victim. Thus
examining the entire evidence, material on record, it is proved that the
victim was a consenting party and the prosecution has not proved
beyond reasonable doubt that victim was below 16 years, therefore, the
appellant deserves to be acquitted from the charges of offence under
Section 376 IPC by granting benefit of doubt. Thus the point No.1 as
determined by this Court is answered in favour of the appellant and
against the State.
Discussion and analysis on point No.2.
24.Learned counsel for the appellant would submit that from the evidence so
brought on record by the prosecution, it cannot be said that the appellant
had abducted the victim for compelling her for marriage with him.
25.In order to examine the conviction of the appellant under Section 366
I.P.C. Section 366 I.P.C. has to be reproduced which is as under;-
366 “Kidnapping, abducting or inducing woman to compel her
marriage, etc.
–Whoever kidnaps or abducts any woman with intent that she may
be compelled, or knowing it to be likely that she will be compelled,
to marry any person against her will, or in order that she may be
forced or seduced to illicit intercourse, or knowing it to be likely that
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she will be forced or seduced to illicit intercourse, shall be
punished with imprisonment of either description for a term which
may extent do ten years, and shall also be liable to fine; and
whoever, by means of criminal intimidation as defined in this Code
or of abuse of authority or any other method of compulsion,
induces any woman to go from any place with intent that she may
be, or knowing that it is likely that she will be, forced or seduced to
illicit intercourse with another person shall be punishable as
aforesaid.”
26. From the evidence of the victim, it is quite vivid that she categorically
stated that she remained with the appellant at Bhopal for one month,
during travel she met with so many villagers, while going to Bhopal but
not narrated the incident to anybody even to her uncle at Bhopal. From
further evidence of the victim wherein she has stated that the appellant
performed marriage with her at Bhopal but has no where stated that the
appellant by compelling the victim for marriage has abducted her. In fact,
the victim has stated in her evidence that the door of her house where
she was residing with her parents was opened and she was sleeping with
her sister-in-law and accused Bodhan and Patiram have taken her to
house of Kanchhedi and she did not make any resistance and thereafter
she was taken to Bhopal by train. The other witness of the prosecution
Punit (PW-3) has also not stated that the accused has abducted the
victim for compelling her to perform marriage. Even the mother of the
victim (PW-7) has nowhere stated that with intent to marry the appellant
has abducted her daughter and in the cross-examination, she has also
admitted in her statement recorded under Section 161 CrPC she has not
stated that the appellant has compelled, forced or seduced the victim for
marry. Even as per doctor evidence (PW-3), there is no injury was found
15
on the private part of the victim to prove that victim was forced or
compelled for illicit intercourse. Thus, from the evidence led by the
prosecution, it is quite vivid, that the prosecution is unable to prove that
the accused has abducted the victim from the lawful guardianship of her
parents or inducing the victim to compel her to perform marriage. Thus
the prosecution is unable to establish the essential ingredients of Section
366 IPC for convicting the appellant. The view of this Court is fortified by
the judgment of Hon’ble Supreme court in the cases of Kavita
Chandrakant Lakhani vs The State Of Maharashtra reported in (2018)
6 SCC 664 wherein the Hon’ble Supreme Court has held as under:-
16. In order to constitute the offence of ‘abduction’ a person must be
carried off illegally by force or deception, that is, to compel a
person by force or deceitful means to induce to go from one place
to another. The intention of the accused is the basis and the
gravamen of an offence under this Section. The volition, the
intention and the conduct of the accused determine the offence;
they can only bear upon the intent with which the accused
kidnapped or abducted the woman, and the intent of the accused
is the vital question for determination in each case. Once the
necessary intent of the accused is established, the offence is
complete, whether or not the accused succeeded in effecting his
purpose, and whether or not the woman consented to the
marriage or the illicit intercourse.
17. Apart from this, to constitute an offence under Section 366 IPC, it
is necessary for the prosecution to prove that the accused
induced the complainant woman or compelled by force to go from
any place, that such inducement was by deceitful means, that
such abduction took place with the intent that the complainant
may be seduced to illicit intercourse and/or that the accused knew
it to be likely that the complainant may be seduced to illicit
intercourse as a result of her abduction. Mere abduction does not
bring an accused under the ambit of this penal section. So far as
charge under Section 366 IPC is concerned, mere finding that a
woman was abducted is not enough, it must further be proved that
the accused abducted the woman with the intent that she may be
compelled, or knowing it to be likely that she will be compelled to
16
marry any person or in order that she may be forced or seduced
to illicit intercourse or knowing it to be likely that she will be forced
or seduced to illicit intercourse.
18. We are of the considered opinion that the essence of all the
applications and orders filed before the courts below is same.
There is no point in considering that in all the courts below, the
other applications filed by Respondent No. 2 were not brought to
the notice of the court at this stage. In this view of the matter, it
would be appropriate if we would confine our discussion to the
applicability of Section 366 of the IPC in the present facts and
circumstances of the case.
27. Under such circumstances, the victim appears to be a consenting party and the
prosecution is unable to prove reasonable doubt that the victim was below 16
years, as such no offence punishable under Section 376 IPC is made out
against the appellant. Similarly from the fact, evidence on record, it is quite
vivid, that prosecution is unable to prove the guilt of the appellant beyond
reasonable doubt that the appellant abducted the victim for compelling her for
marriage which is essential to attract the offence under Section 366 of IPC,
therefore, I am of the view that the appellant deserves to be acquitted of the
charges leveled against him under Sections 366 IPC. Accordingly, point No. 2 is
answered in favour of the appellant against the State.
28. Consequently, the conviction of the appellant under Sections 366 and 376 of
the IPC deserves to be set aside and it is set aside and the appellant is
acquitted of the aforesaid charges. Accordingly, the appeal filed by the
appellant deserves to be allowed and it is allowed.
29. At present, the appellant is on bail. His bail bonds shall remain in force for six
months in view of the provisions of Section 437-A CrPC and 481 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
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30. Let a copy of this judgment and the original record be transmitted to the trial
court concerned forthwith for necessary information and compliance.
Sd/-
(Narendra Kumar Vyas)
Judge
Santosh
