Chattisgarh High Court
Nausad Khan @ Raja vs State Of Chhattisgarh on 15 July, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
CGHC010129802025 2026:CGHC:29922-DB
NAFR
SAGRIKA
AGRAWAL HIGH COURT OF CHHATTISGARH AT BILASPUR
Digitally signed
by SAGRIKA
AGRAWAL
Date: 2026.07.21
CRA No. 762 of 2025
10:42:09 +0530
Nausad Khan @ Raja S/o Mohd. Saleem Khan Aged About 20 Years R/o
Village Deori, Ward No. 11, Police Station Desari, District- Vaishali Nagar,
Bihar, Present Address- Village Sankara, Ravanbhatha Para, Tehsil- Patan,
Police Station- Amleshwar, District- Durg, Chhattisgarh
... Appellant(s)
versus
State Of Chhattisgarh Through - Police Station- Amleshwar, District- Durg,
Chhattisgarh
... Respondent(s)
(cause title taken from CIS)
For Appellant (s) : Mr. Anmol Sharma, Advocate
For Respondent(s) : Mr. Sangharsh Pandey, Govt. Advocate
For Objector : Mr. Rajendra Patel, Advocate
Hon’ble Mr. Ramesh Sinha, Chief Justice
Hon’ble Mr. Ravindra Kumar Agrawal, Judge
Order on Board
Per Ramesh Sinha, Chief Justice
15.07.2026
1. Heard Mr. Anmol Sharma, learned counsel for the appellant. Also heard
Mr. Sangharsh Pandey, Govt. Advocate for the Respondent/ State and
Mr. Rajendra Patel, learned counsel for Objector.
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2. Vide order dated 13.06.2025, notice was issued to the father of the
victim/ complainant (PW/14), regarding pendency of the appeal as well
as application for suspension of sentence and grant of bail.
3. Upon service of notice upon the complainant, he made a
representation through his counsel Shri Rajendra Patel and he made
no objection in application I.A. No. 1 of 2025 which is an application for
suspension of sentence and grant of bail and also have no objection in
hearing the appeal of the appellant.
4. Considering the fact that the appellant was on bail during the trial and
he is in jail since 26.03.2025 i.e. from the date of judgment, with the
consent of the parties the appeal itself has been heard finally.
Accordingly, I.A No. 01 of 2025 is disposed of.
5. The present criminal appeal has been filed by the appelant under
Section 415(2) of Bhartiya Nagarik Suraksha Sanhita, 2023 against the
impugned judgment of conviction and sentence dated 26.03.2025
passed by learned Addl. Session Judge, Patan, Dist- Durg (C.G.) in
Special Criminal (POCSO) Case No. 08/2025 whereby the appellant
has been convicted and sentenced in the following manner:-
S.No Conviction Sentence
1. Under Section 363 of IPC R.I. for 03 years and fine of Rs. 3000/- in
default of fine additional R.I. for 1 month.
2. Under Section 366 of IPC R.I. for 5 years and fine of Rs. 5000/- in
default of payment of fine additional R.I.
for 1 month.
3 Under Section 376 (3) of No separate sentence has been awarded.
3. Under Section 4(2) of R.I. for 20 years and fine of Rs. 5000/-, in
Protection of Children default of payment of fine further R.I. for
from Sexual Offences Act, 02 months
3
2012.
(All the sentences shall run concurrently)
6. The case of the prosecution is that (PW/14), father of the victim lodged
a missing report on 23.07.2023 that his minor daughter had gone to
her uncle’s house but could not return. Despite her search, her
whereabouts could not be traced out. The Police has registered the
FIR (Ex-P/8) under Section 363 of IPC against the unknown persons.
During the investigation of missing persons, the victim came back to
her house on 27.07.2023 and then the Police was being informed of
her whereabouts and recovery panchanama (Ex-P/1) was prepared.
The victim was sent for her medical examination to Community Health
Centre, Jheeta, where she was medically examined by PW/5 Dr.
Vijeeta Dongare, who gave her report (Ex-P/7). While medically
examined the victim, no external injuries were found on her body and
the doctor has opined that no definite opinion can be given regarding
recent sexual intercourse. Two slides of her vaginal slides were
prepared, sealed and handed over to the Police for its chemical
examination. With respect to her age and date of birth of the victim, the
Police has seized school register vide seizure memo (Ex-P/6) and after
retaining its attested true copy (Article-A/1C), the original school
register was returned to the school. According to the school register,
the date of birth of the victim is 21.09.2008. Spot map (Ex-P/3 and P/9)
was prepared by the Police and (Ex-P/4) was prepared by the Patwari.
The social status certificate of the victim was also seized vide seizure
memo (Ex-P/15). The mark sheet of Class-8 of the victim had also
been seized vide seizure memo (Ex-P/16). The appellant was arrested
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on 22.08.2023 and he too was sent for medical examination to
Community Health Centre, Jheeta where he was medically examined
by (PW/4) Dr. Anurag shonkar who gave his report (Ex-P/5A). After
medically examined the appellant, the doctor has found him able to do
penetrative sexual intercourse. The vaginal slides of the victim from her
underwear and the underwear of the appellant were sent for its
chemical examination to State FSL, Raipur from where report
(Ex-P/21) was received and as per the FSL report, no semen and
sperms were found on the sent articles. Statement of the victim under
Section 164 of the Cr.P.C and statements of the other witnesses under
Section 161 of the Cr.P.C. were recorded. After completion of the
investigation, the Police filed a charge-sheet against the appellant for
the offences under Sections 363, 376 of the IPC, Section 4 and 6 of
the Protection of Children from Sexual Offence Act, 2012 (in short
“POCSO Act“) and Section 3(2)(va) of Schedule Caste and Schedule
Tribe (Prevention of Atrocities) Act, 1989 (in short “SC/ST Act”) before
the learned trial Court.
7. The learned trial Court has framed charges against appellant for the
offence punishable under Sections 363, 366 and 376(3) of the Indian
Penal Code and Section 4(2) of the POCSO Act and Section 3 (2)(va)
of SC/ST Act. The appellant abjured his guilt and claimed trial.
8. In order to prove the charges against the appellant, the prosecution
has examined as many as 14 witnesses. The statements of the
appellant under Section 313 of the Code of Criminal Procedure were
also been recorded, wherein he denied circumstances appearing
against him, pleaded innocence, and submitted that he has been
falsely implicated in the case.
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9. After appreciation of the oral as well as documentary evidence
adduced by the prosecution, the learned trial Court acquitted the
appellant from the offence under Section 3 (2)(va) of SC/ST Act.
However, he has been convicted and sentenced as has been
mentioned in the earlier part of this judgment, hence this appeal.
10.Learned counsel for the appellant would submit that the appellant is
innocent and has been falsely implicated in the present case. The
prosecution has failed to establish its case beyond reasonable doubt
and the conviction recorded by the learned Trial Court is contrary to the
evidence available on record. It is argued that the prosecution has
failed to prove the age of the victim by any legally admissible evidence.
Though reliance has been placed on the School Admission Register,
neither its author was examined nor any Birth Certificate, Kotwari
Register or radiological/ossification test was produced to establish that
the victim was below 18 years of age on the date of the incident. It is
further submitted that the victim herself admitted in her deposition that
she was in a love relationship with the appellant, voluntarily left her
house with an intention to marry him and had herself gone to Bihar in
search of the appellant, where she found that he was working at
Hyderabad. The relatives of the appellant thereafter dropped her at
Raipur Railway Station, from where she returned to her house, which
itself probabilizes the defence case and demolishes the prosecution
story of kidnapping or forcible taking away. It is further argued that the
victim was never recovered from the custody or possession of the
appellant and, in fact, she was produced before the police by her own
parents. Learned counsel would also submit that the medical evidence
does not support the prosecution case, as no external or internal
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injuries were found on the body or private parts of the victim, no
definite opinion regarding forcible sexual intercourse was given by the
doctor and the FSL report in respect of the vaginal slide and other
seized articles is negative. It is further contended that there are
material contradictions and inconsistencies in the statements of the
prosecution witnesses, which have not been properly appreciated by
the learned Trial Court. In these circumstances, it is submitted that the
essential ingredients of the offences alleged against the appellant have
not been proved beyond reasonable doubt and, therefore, the
appellant is entitled to be acquitted by setting aside the impugned
judgment of conviction and sentence.
11. On the other hand, learned State counsel opposes the arguments
advanced by the learned counsel for the appellant and submits that the
prosecution has successfully proved its case beyond reasonable doubt
by leading cogent and reliable oral as well as documentary evidence. It
is contended that the prosecution has duly established that on the date
of the incident the victim was a minor and below 18 years of age on the
basis of the School Admission Register, which has been duly proved by
PW-2, Head Master of the concerned school. It is further submitted that
the testimony of the victim (PW-1) is trustworthy, consistent and
inspires confidence, and the same is duly corroborated by the evidence
of her parents, the medical witnesses and the investigating officers.
Since the victim was a minor, her consent, if any, is wholly immaterial in
the eyes of law and the fact that she accompanied the appellant
voluntarily does not absolve him of his criminal liability. It is further
argued that the prosecution has proved that the appellant had enticed
and taken away the victim from the lawful guardianship of her parents
7
and committed penetrative sexual assault upon her, thereby attracting
the offences punishable under Sections 363, 366 and 376(3) of the IPC
as well as Section 4(2) of the Protection of Children from Sexual
Offences Act, 2012. Therefore, the learned Trial Court has rightly
appreciated the evidence on record and recorded the conviction of the
appellant, and the impugned judgment of conviction and sentence
warrants no interference by this Court.
12.We have heard learned counsel for the parties and perused the
material annexed with the appeal.
13.The first and the foremost question arises for consideration would be
as to age of the victim whether she was minor and less than 18 years
of age on the date of incident or not.
14.The prosecution has mainly relied upon the document (Article- A/1C)
which is the school register of the victim, which is sought to be proved
by PW/2. PW/2 is the Headmaster of the school, he stated in his
evidence that he is the Head Master of the school since 2006. The
Police has seized the school register vide seizure memo (Ex-P/6) with
respect to the age and date of birth of the victim and after retaining its
attested true copy (Article-A/1c), the original register (Article-A/1) was
returned back to the school which he brought today with him. As per
the entries made in the school register, the date of birth of the victim is
21.09.2008. In cross-examination, he admitted that the entries made in
(Article-A/1) the school register, has been made by him on the basis of
the transfer certificate issued by her earlier school. He also admitted
that who has taken her for her admission has not been mentioned in
the school register (Article-A/1). Though, this witness have stated that
he is the author of the school register and the entries have been made
8
on the basis of transfer certificate, however, there is no endorsement
about the details of previous school of the victim and even no transfer
certificate has been produced by the prosecution to connect the entries
with the entries made in the earlier school. (Article-A/1C) is the school
register of Class-6 and the Police has not produced the school register
of the victim from her initial schooling. Merely saying that the entries
were made on the basis of transfer certificate issued by her previous
school would not suffice to conclude that the entries made in the school
register are correct entries. There is lack of sufficient documentary
evidence of her earlier schooling.
15.The Hon’ble Supreme Court has considered the admissibility and
evidentiary value of the school register with respect to the age of the
victim. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu
and Another Vs. State, represented by Inspector of Police, 2011(2)
SCC 385, the Hon’ble Supreme Court has observed as under:
“40.Undoubtedly, the transfer certificate, Ex.P16 indicates
that the girl’s date of birth was 15th June, 1977. Therefore,
even according to the aforesaid certificate, she would be
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. The date of birth mentioned in the transfer
certificate would have no evidentiary value unless the
person, who made the entry or who gave the date of
birth is examined.
42. Considering the manner in which the facts recorded in
a document may be proved, this Court in the case of Birad
Mal Singhvi Vs. Anand Purohit1, observed as follows:-
9
“The date of birth mentioned in the scholars’ register
has no evidentiary value unless the person who
made the entry or who gave the date of birth is
examined….Merely because the documents Exs. 8,
9, 10, 11, and 12 were proved, it does not mean that
the contents of documents were also proved. Mere
proof of the documents Exs. 8, 9, 10, 11 and 12
would not tantamount to proof of all the contents or
the correctness of date of birth stated in the
documents. Since the truth of the fact, namely, the
date of birth of Hukmi Chand and Suraj Prakash
Joshi was in issue, mere proof of the documents as
produced by the aforesaid two witnesses does not
furnish evidence of the truth of the facts or contents
of the documents. The truth or otherwise of the facts
in issue, namely, the date of birth of the two
candidates as mentioned in the documents could be
proved by admissible evidence i.e. by the evidence
of those persons who could vouchsafe for the truth
of the facts in issue. No evidence of any such kind
was produced by the respondent to prove the truth
of the facts, namely, the date of birth of Hukmi
Chand and of Suraj Prakash Joshi. In the
circumstances the dates of birth as mentioned in the
aforesaid documents 1988 (Supp) SCC 604 have no
probative value and the dates of birth as mentioned
therein could not be accepted.”
43. The same proposition of law is reiterated by this Court
in the case of Narbada Devi Gupta Vs. Birendra Kumar
Jaiswal2, where this Court observed as follows:-
“The legal position is not in dispute that mere
production and marking of a document as
exhibit by the court cannot be held to be a due
proof of its contents. Its execution has to be
proved by admissible evidence, that is, by the
“evidence of those persons who can vouchsafe
for the truth of the facts in issue”.”
44. In our opinion, the aforesaid burden of proof has
not been discharged by the prosecution. The father
says nothing about the transfer certificate in his
evidence. The Headmaster has not been examined at
all. Therefore, the entry in the transfer certificate can
not be relied upon to definitely fix the age of the girl.
48. We may further notice that even with reference to
10
Section 35 of the Indian Evidence Act, a public
document has to be tested by applying the same
standard in civil as well as criminal proceedings. In
this context, it would be appropriate to notice the
observations made by this Court in the case of
Ravinder Singh Gorkhi Vs. State of U.P.4 held as
follows:-
“The age of a person as recorded in the school
register or otherwise may be used for
various purposes, namely, for obtaining
admission; for obtaining an appointment; for
contesting election; registration of marriage;
obtaining a separate unit under the ceiling
laws; and even for the purpose of litigating
before a civil forum e.g. necessity of being
represented in a court of law by a guardian or
where a suit is filed on the ground that the
plaintiff being a minor he was not appropriately
represented therein or any transaction made
on his behalf was void as he was a minor. A
court of law for the purpose of determining the
age of a (2006) 5 SCC 584 party to the lis,
having regardto the provisions of Section 35 of
the Evidence Act will have to apply the same
standard. No different standard can be applied
in case of an accused as in a case of
abduction or rape, or similar offence where the
victim or the victim although might have
consented with the accused, if on the
basis of the entries made in the register
maintained by the school, a judgment of
conviction is recorded,the accused would be
deprived of his constitutional right under Article
21 of the Constitution, as in that case the
accused may unjustly be convicted.”
16. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &
Others, 2022 (8) SCC 602, while considering various judgments, the
Hon’ble Supreme Court has observed in para 33 as under:
“33. What emerges on a cumulative consideration of
the aforesaid catena of judgments is as follows:
33.2.2. If an application is filed before the
Court claiming juvenility, the provision of sub-
11
section (2) of section 94 of the JJ Act, 2015
would have to be applied or read along with
sub-section (2) of section 9 so as to seek
evidence for the purpose of recording a finding
stating the age of the person as nearly as may
be.
XXXX
XXXX
XXX
33.3. That when a claim for juvenility is raised,
the burden is on the person raising the claim to
satisfy the Court to discharge the initial burden.
However, the documents mentioned in Rule
12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007
made under the JJ Act, 2000 or sub- section (2)
of section 94 of JJ Act, 2015, shall be sufficient
for prima facie satisfaction of the Court. On the
basis of the aforesaid documents a
presumption of juvenility may be raised.
33.4. The said presumption is however not
conclusive proof of the age of juvenility and the
same may be rebutted by contra evidence let
in by the opposite side.
33.5. That the procedure of an inquiry by a
Court is not the same thing as declaring the
age of the person as a juvenile sought before
the JJ Board when the case is pending for trial
before the concerned criminal court. In case of
an inquiry, the Court records a prima facie
conclusion but when there is a determination of
age as per sub-section (2) of section 94 of
2015 Act, declaration is made on the basis of
evidence. Also the age recorded by the JJ
Board shall be deemed to be the true age of
the person brought before it. Thus, the
standard of proof in an inquiry is different from
that required in a proceeding where the
determination and declaration of the age of a
person has to be made on the basis of
evidence scrutinised and accepted only if
worthy of such acceptance.
33.6. That it is neither feasible nor desirable to
lay down an abstract formula to determine the
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age of a person. It has to be on the basis of the
material on record and on appreciation of
evidence adduced by the parties in each case.
33.7 This Court has observed that a
hypertechnical approach should not be adopted
when evidence is adduced on behalf of the
accused in support of the plea that he was a
juvenile.
33.8. If two views are possible on the same
evidence, the court should lean in favour of
holding the accused to be a juvenile in
borderline cases. This is in order to ensure that
the benefit of the JJ Act, 2015 is made
applicable to the juvenile in conflict with law. At
the same time, the Court should ensure that the
JJ Act, 2015 is not misused by persons to
escape punishment after having committed
serious offences.
33.9. That when the determination of age is on
the basis of evidence such as school records, it
is necessary that the same would have to be
considered as per Section 35 of the Indian
Evidence Act, inasmuch as any public or official
document maintained in the discharge of official
duty would have greater credibility than private
documents.
33.10. Any document which is in consonance
with public documents, such as matriculation
certificate, could be accepted by the Court or
the JJ Board provided such public document is
credible and authentic as per the provisions of
the Indian Evidence Act viz., section 35 and
other provisions.
33.11. Ossification Test cannot be the sole
criterion for age determination and a mechanical
view regarding the age of a person cannot be
adopted solely on the basis of medical opinion
by radiological examination. Such evidence is
not conclusive evidence but only a very useful
guiding factor to be considered in the absence
of documents mentioned in Section 94(2) of the
JJ Act, 2015.”
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17. In case of P. Yuvaprakash Vs. State represented by Inspector of
Police, 2023 (SCC Online) SC 846, Hon’ble Supreme Court has held
in para 14 to 17 as under :
“14. Section 94 (2)(iii) of the JJ Act clearly indicates
that the date of birth certificate from the school or
matriculation or equivalent certificate by the
concerned examination board has to be firstly
preferred in the absence of which the birth certificate
issued by the Corporation or Municipal Authority or
Panchayat and it is only thereafter in the absence of
these such documents the age is to be determined
through “an ossification test” or “any other latest
medical age determination test” conducted on the
orders of the concerned authority, i.e. Committee or
Board or Court. In the present case, concededly,
only a transfer certificate and not the date of birth
certificate or matriculation or equivalent certificate
was considered. Ex. C1, i.e., the school transfer
certificate showed the date of birth of the victim as
11.07.1997. Significantly, the transfer certificate was
produced not by the prosecution but instead by the
court summoned witness, i.e., CW-1. The burden is
always upon the prosecution to establish what it
alleges; therefore, the prosecution could not have
been fallen back upon a document which it had
never relied upon. Furthermore, DW-3, the
concerned Revenue Official (Deputy Tahsildar) had
stated on oath that the records for the year 1997 in
respect to the births and deaths were missing. Since
it did not answer to thedescription of any class of
documents mentioned in Section 94(2)(i) as it was a
mere transfer certificate, Ex C-1 could not have been
relied upon to hold that M was below 18 years at the
time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs.
State of Uttar Pradesh & Ors. this court outlined the
procedure to be followed in cases where age
determination is required. The court was dealing with
Rule 12 of the erstwhile Juvenile Justice Rules
(which is in pari materia) with Section 94 of the JJ
Act, and held as follows:
“20. Rule 12 of the JJ Rules, 2007 deals with
the procedure to be followed in determination of
age. The juvenility of a person in conflict with
14law had to be decided prima facie on the basis
of physical appearance, or documents, if
available. But an inquiry into the determination
of age by the Court or the JJ Board was by
seeking evidence by obtaining: (i) the
matriculation or equivalent certificates, if
available and in the absence whereof; (ii) the
date of birth certificate from the school (other
than a play school) first attended; and in the
absence whereof; (iii) the birth certificate given
by a corporation or a municipal authority or a
panchayat. Only in the absence of either (i), (ii)
and (iii) above, the medical opinion could be
sought from a duly constituted Medical Board to
declare the age of the juvenile or child. It was
also provided that while determination was
being made, benefit could be given to the child
or juvenile by considering the age on lower side
within the margin of one year.”
16. Speaking about provisions of the Juvenile Justice
Act, especially the various options in Section 94 (2)
of the JJ Act, this court held in Sanjeev Kumar Gupta
vs. The State of Uttar Pradesh & Ors that:
“Clause (i) of Section 94 (2) places the date of
birth certificate from the school and the
matriculation or equivalent certificate from the
2021 (12) SCR 502 [2019] 9 SCR 735
concerned examination board in the same
category (namely (i) above). In the absence
thereof category (ii) provides for obtaining the
birth certificate of the corporation, municipal
authority or panchayat. It is only in the absence
of (i) and (ii) that age determination by means
of medical analysis is provided. Section 94(2)
(a)(i) indicates a significant change over the
provisions which were contained in Rule 12(3)
(a) of the Rules of 2007 made under the Act of
2000. Under Rule 12(3)(a) (i) the matriculation
or equivalent certificate was given precedence
and it was only in the event of the certificate
not being available that the date of birth
certificate fromthe school first attended, could
be obtained. In Section 94(2)(i) both the date of
birth certificate from the school as well as the
matriculation or equivalent certificate are
15placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain Vs. State of
West Bengal, this court, through a three-judge bench,
held that the burden of proving that someone is a
juvenile (or below the prescribed age) is upon the
person claiming it. Further, in that decision, the court
indicated the hierarchy of documents that would be
accepted in order of preference.”
18. Reverting to the facts of the present case, when we examined the
(PW/1) victim, we found the inconsistency in the evidence regarding
the date of birth and age. The victim (PW/1) has stated in her evidence
that her date of birth is 06.11.2008. In cross-examination, she stated
that she did her initial schooling in the primary school in Village and
from 6 to 8 she studied at Village Khamaria and thereafter, at Village
Sankra from Class 9th. Her parents have not taken her to the school but
she on her own had gone to school. She herself had not filled up any
form in the school regarding her admission. She voluntarily stated that
she produced the transfer certificate. She admitted that she could not
produce any document regarding her admission to Class-1 in the
school.
19. PW/6 who is the mother of the victim also stated that the date of birth
of the victim is 06.11.2008. In cross-examination, she stated that the
victim was being taken to the school by her father. The date of birth of
the victim is 06.11.2008 but her date of birth have wrongly being
recorded in the school register as 21.08.2008. They have not made
any attempt to correct the date of birth of the victim in school records.
20.(PW/14), who is the father of the victim, he stated in his evidence that
the correct date of birth of the victim is 06.09.2008 but her date of birth
is recorded by Anganbadi worker as 06.11.2008. In cross-examination,
16
he admitted that his wife had gone to school for the admission of the
victim. He also admitted that he could not tell as to on what basis his
wife has recorded the date of birth of the victim in the school, he did
not know. He further admitted that the date of birth of the victim was
recorded on assumption.
21.From this evidence, the prosecution has utterly failed to produce
cogent evidence with respect to the date of birth of the victim. When
the victim herself has stated that her date of birth is 06.11.2008 and
she on her own had gone to school. (PW/6) the mother of the victim
stated that the date of birth of the victim is 06.11.2008, but the school
teacher has wrongly mentioned her date of birth as 21.08.2008 and
that her father had taken her to school for her admission. (PW/14), the
father of the victim made a complete contradictory statement that the
correct date of birth of the victim is 06.09.2008 but Anganbadi worker
has wrongly recorded her date of birth as 06.11.2008 and his wife i.e.
mother of the victim took her to school for her admission. From the
evidence of school record, the date of birth of the victim appears
21.08.2008. from the evidence of PW/1, Victim, her date of birth is
06.11.2008, from the evidence of Pw/6, mother of the victim, though,
the date of birth of the victim is 06.11.2008 but wrongly recorded in the
school record as 21.08.2008 which is nowhere mentioned in any
record and also that from the evidence of PW/14, father of the victim,
the correct date of birth of the victim is 06.09.2008 but the anganbadi
worker has wrongly recorded her date of birth as 6.11.2008 and thus,
there is complete inconsistency in the date of birth of the victim and
there is no any consistent evidence about her date of birth. There is no
other evidence like birth certificate, kotwari register or ossification test
17
report for determination of the age of the victim, therefore, we are of
the opinion that the learned trial Court has incorrectly recorded the
finding that the victim was minor on the date of incident.
22. So far as, the offence of kidnapping and rape are concerned, we again
examined the evidence of victim (PW/1).
23. She stated in her evidence that she knew the appellant who owned a
tire shop in the village. She was having love affair with him and she
asked him to marry her. They used to met in the garden and wanted to
elope with each other. She had gone to Village- Deshari (Bihar) along
with the appellant but came back. She stayed at maternal aunt’s house
of the appellant at Village- Deshari and his maternal aunt accompanied
her up to Raipur railway station. Thereafter, she came back to her
house. On her instance, the appellant made physical relation with her.
He made physical relation with her only once. In cross-examination,
she stated that she left her house on 22.07.2023 without informing her
parents and had eloped with the appellant. She contradict her 164
CrPC statement (Ex-D/2). She could not tell as to from which train, she
had gone to Bihar. She further admitted that during travel up to Bihar
by train, she has never made any complaint to anyone that the
appellant is kidnapping her. There were other co-passengers in the
train but she has not raised any alarm. They traveled together for two
days to reach Bihar. She further admitted that she was on her own will
had gone with the appellant. The appellant stayed in his house and his
maternal aunt accompanied her up to Raipur to left her back. She
further admitted that with respect to the sexual intercourse by the
appellant, she has not made any complaint to her parents or Police
personnels. From Bihar, she made a telephonic call to her father and
18
informed that she is at Bihar. She further admitted that if her father
would not ask her to come back, she would not have returned back
from Bihar. Even from coming back from Bihar, she has not disclosed
to her family members as to with whom she eloped. In further cross-
examination, she admitted that she still in love with the appellant and
wanted to marry with him. The parents of the appellant were objecting
their marriage. From the evidence of the victim, it clearly reveals that
she was in love affair of the appellant and she herself indulge in
making physical relation with the appellant and the appellant made
physical relation on the instance of the victim. She herself on her own
will eloped with him, both of them have gone to Bihar, where they
stayed for about two days and then the maternal aunt of the appellant
left her back to Raipur railway station. During the entire journey, she
neither made any complaint to anyone nor raised any alarm regarding
any act of the appellant.
24.In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942,
the Hon’ble Supreme Court has considered the taking and allowing a
minor to accompany a person and has held in Para 9 and Para 10 of
its judgment that:-
“9. It must, however, be borne in mind that there is a
distinction between “taking” and allowing a minor to
accompany a person. The two expressions are not
synonymous though we would like to guard ourselves from
laying down that in no conceivable circumstance can the
two be regarded as meaning the same thing for the
purposes of of the Indian Penal Code. We would limit
ourselves to a case like the present where the minor
alleged to have been taken by the accused person left her
father’s protection knowing and having capacity to know the
full import of what she was doing voluntarily joins the
accused person. In such a case we do not think that the
accused can be said to have taken her away from the
19keeping of her lawful guardian. Something more has to be
shown in a case of this kind and that is some kind of
inducement held out by the accused person or an active
participation by him in the formation of the intention of the
minor to leave the house of the guardian.
10. It would, however, be sufficient if the prosecution
establishes that though immediately prior to the minor
leaving the father’s protection no active part was played by
the accused, he had at some earlier stage solicited or
persuaded the minor to do so. In our, opinion if evidence to
establish one of those things is lacking it would not be
legitimate to infer that the accused is guilty of taking the
minor out of the keeping of the lawful guardian merely
because after she has actually left her guardian’s house or a
house where her guardian had kept her, joined the accused
and the accused helped her in her design not to return to
her guardian’s house by taking her along with him from
place to place. No doubt, the part played by the accused
could be regarded as facilitating the fulfillment of the
intention of the girl. That part, in our opinion, falls short of an
inducement to the minor to slip out of the keeping of her
lawful guardian and is, therefore, not tantamount to “taking”.
25. In the matter of Tilku Alias Tilak Singh V. The State Of Uttarakhand,
reported in 2025 INSC 226, the Supreme Court has held that he victim,
who is between 16 to 18 years of age is very much in the age of
understanding as to what was right and wrong for her. Relevant para of
the said judgment states as under:-
“16. Even if the finding of the learned Single Judge of the
High Court that the victim was between 16 to 18 years of
age is to be accepted, in our view, the offence under
Sections 363 and 366 IPC would still not be made out.
17. This Court in the case of S. Vardarajan v. State of
Madras, reported in 1964 SCC OnLine SC 36 had an
occasion to consider almost similar facts that arise for
consideration in the present case. This Court has observed
thus:
“7. …..It will thus be seen that taking or enticiting
away a minor out of the keeping of a lawful guardian
is an essential ingredient of the offence of
kidnapping. Here, we are not concerned with
20enticement but what we have to find out is whether
the part played by the appellant amounts to “taking”
out of the keeping of the lawful guardian of Savitri.
We have no doubt that though Savitri had been left
by S. Natarajan at the house of his relative K.
Nataranjan she still continued to be in the lawful
keeping of the former but then the question remains
as to what is it which the appellant did that
constitutes in law “taking”. There is not a word in the
deposition of Savitri from which an inference could
be drawn that she left the house of K. Natarajan at
the instance or even a suggestion of the appellant. In
fact she candidly admits that on the morning of
October 1st, she herself telephoned to the appellant
to meet her in his car at a certain place, went up to
that place and finding him waiting in the car got into
that car of her own accord. No doubt, she says that
she did not tell the appellant where to go and that it
was the appellant himself who drove the car to
Guindy and then to Mylapore and other places.
Further, Savitri has stated that she had decided to
marry the appellant. There is no suggestion that the
appellant took her to the Sub-Registrar’s office and
got the agreement of marriage registered there
(thinking that this was sufficient in law to make them
man and wife) by force or blandishments or anything
like that. On the other hand the evidence of the girl
leaves no doubt that the insistence of marriage came
from her side. The appellant, by complying with her
wishes can by no stretch of imagination be said to
have taken her out of the keeping of her lawful
guardian. After the registration of the agreement both
the appellant and Savitri lived as man and wife and
visited different places. There is no suggestion in
Savitri’s evidence, who, it may be mentioned had
attained the age of discretion and was on the verge
of attaining majority that she was made by the
appellant to accompany him by administering any
threat to her or by any blandishments. The fact of her
accompanying the appellant all along is quite
consistent with Savitri’s own desire to be the wife of
the appellant in which the desire of accompanying
him wherever he went was course implicit. In these
circumstances we find nothing from which an
inference could be drawn that the appellant had been
guilty of taking away Savitri out of the keeping of her
21
father. She willingly accompanied him and the law
did not cast upon him the duty of taking her back to
her father’s house or even of telling her not to
accompany him. She was not a child of tender years
who was unable to think for herself but, as already
stated, was on the verge of attaining majority and
was capable of knowing what was good and what
was bad for her…….”
18. It is thus clear that the victim, who according to the
learned Single Judge of the High Court, was between 16 to
18 years of age was very much in the age of understanding
as to what was right and wrong for her.
19. From the evidence of the victim itself, it will be clear that
she had voluntarily gone along with the appellant herein,
travelled to various places and also resided as husband
and wife at Dehradun.”
26.In the matter of Dola @ Dolagobinda Pradhan Vs. State of Odisha,
reported in (2018) 18 SCC 695, the Hon’ble Supreme Court has held in
Para 9 :-
9. However, as is also evident from the observations above,
such reliance may be placed only if the testimony of the
prosecutrix appears to be worthy of credence. In this regard,
it is also relevant to note the following observations of this
Court in Raju v. State of M.P. 4, which read thus: (SCC p.
141, paras 10-11)
“10. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a prosecutrix
should not be suspected and should be believed,
more so as her statement has to be evaluated on a
par with that of an injured witness and if the evidence
is reliable, no corroboration is necessary.
Undoubtedly, the aforesaid observations must carry
the greatest weight and we respectfully agree with
them, but at the same time they cannot be
universally and mechanically applied to the facts of
every case of sexual assault which comes before the
court.
11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but at
22
the same time a false allegation of rape can cause
equal distress, humiliation and damage to the
accused as well. The accused must also be
protected against the possibility of false implication,
particularly where a large number of accused are
involved. It must, further, be borne in mind that the
broad principle is that an injured witness was present
at the time when the incident happened and that
ordinarily such a witness would not tell a lie as to the
actual assailants, but there is no presumption or any
basis for assuming that the statement of such a
witness is always correct or without any
embellishment or exaggeration.”
Having due regard in our mind to the abovementioned
settled position in law, we have assessed the entire material
on record meticulously.
27.(PW/6) who is the mother of the victim, however, she made statement
on the basis of the disclosure of the incident made by the victim to her.
When the victim herself has stated in her evidence that she was in love
affair with the appellant and on her own will eloped with him and
engaged in making physical relation, the evidence of her mother does
not have much significance likewise the evidence of her father (PW/1)
also does not have much significance in the case, though, he proved
the missing report (Ex-P/8) but it was against unknown person and the
victim herself has stated that she on her own will eloped with the
appellant and the victim was not proved to be a minor and when she
herself eloped with the appellant and engaged in making consensual
physical relation, it can be safely held that no offence of either
kidnapping or rape are made out against the appellant.
28.(PW/5), Dr. Vijeeta Dongare, who medically examined the victim, has
not noticed any internal and external injuries on the body of the victim
and proved her MLC report (Ex-P/7). Even, in the FSL report (Ex-P/21),
23
no semen and sperms were found on the vaginal slides of the victim,
her underwear and the underwear of the appellant.
29.(PW/7), who is the aunt of the victim and (PW/9) who is the uncle of the
victim, they also stated whatever the victim disclosed with them.
However, they turned hostile and not supported the prosecution’s case
except lodging of her missing report.
30.The version of the victim commands great respect and acceptability,
but if there are some circumstances which cast some doubt in the mind
of the court on the veracity of the victim’s evidence, then it will not be
safe to rely on the said version of the victim. There is contradiction and
omissions in the statement of the victim and her parents. The law is
well settled that in case of rape, conviction can be maintained even on
the basis of sole testimony of the victim. However, there is an important
caveat which is that the testimony of the victim must inspire
confidence. Even though the testimony of the victim is not required to
be corroborated, if her statement is not believable, then the accused
cannot be convicted. The prosecution has to bring home the charges
levelled against the appellant beyond any reasonable doubt, which the
prosecution has failed to do in the instant case.
31.From the consideration of entire evidence produced by the prosecution,
we are of the considered opinion that the prosecution has failed to
prove the offence of kidnapping and rape against the appellant and the
conviction and sentence of the appellant cannot be sustained.
32.Accordingly, the appeal filed by the appellants are hereby Allowed.
The impugned judgment of conviction and sentences dated 26.03.2025
passed against the appellant are set aside. The appellant is
acquitted from all the charges.
24
33.The appellant is reported to be in jail since 26.03.2025. He shall be
released forthwith if not required in any other case.
34.Keeping in view the provisions of Section 481 of Bharatiya Nagrik
Suraksha Sanhita, 2023, the appellant is directed to furnish a personal
bond for a sum of Rs. 25,000/- in the like amount before the Court
concerned which shall be effective for a period of six months along with
an undertaking that in the event of filing of Special Leave Petition
against the instant judgment or for grant of leave, the aforesaid
appellant, on receipt of notice thereof, shall appear before the Hon’ble
Supreme Court.
35.The trial court record along with a copy of this judgment be sent back
immediately to the trial court concerned for compliance and necessary
action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Sagrika
