Chattisgarh High Court
Aman Prakash Kurrey vs State Of Chhattisgarh on 28 July, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
CGHC010045192025 2026:CGHC:32240-DB
NAFR
Digitally signed
by INDRAJEET
INDRAJEET
SAHU
SAHU HIGH COURT OF CHHATTISGARH AT BILASPUR
Date: 2026.07.31
16:49:47 +0530
CRA No. 442 of 2025
1 - Aman Prakash Kurrey S/o Shri Saheblal Kurrey Aged About 18 Years And
4 Months, R/o Village Naginbhata, Sumendha, P.S. Bankimogra District-
Korba, Chhattisgarh.
... Appellant
versus
1 - State of Chhattisgarh Through Police Station- Bankimogra, District Korba,
Chhattisgarh.
... Respondent(s)
For Appellant : Shri Rajesh Roshan Singh, Advocate.
For State : Shri Sangharsh Pandey, Govt. Advocate.
Hon’ble Shri Justice Ramesh Sinha, CJ
Hon’ble Shri Justice Ravindra Kumar Agrawal, J
Judgment on Board
28.07.2026
Per, Ramesh Sinha, CJ.
1 Though notice was duly served upon PW-2, father of victim, on
13.05.2025, but since no one appears on behalf of victim to raise
objection on the application filed by the appellant seeking suspension
of sentence and grant of bail, and also considering the fact that
appellant is languishing in jail since 15.11.2019, with the consent of the
parties, the matter is heard finally.
2
2 The present appeal has been filed by the appellant against the
impugned judgment of conviction and order of sentence dated
28.11.2024 passed by the District & Additional Sessions Judge, FTSC
(Prevention of Children From Sexual Offences Act, 2012) (in short, The
POCSO Act), Katghora, District Korba, in Special Case No.40/2019
whereby the appellant has been convicted and sentenced as under :
Conviction Under Section Sentence
363 IPC RI for 01 year and fine of Rs.500/-, in default
of payment of fine, additional RI for one
month.
366 IPC RI for 2 years and fine of Rs.500/-, in default
of payment of fine, additional RI for one
month.
6 of POCSO Act/ RI for 20 years and fine of Rs.2000/-, in
376(2)(n) IPC default of payment of fine, additional RI for
three months.
3 Brief facts of the case are that, on 06.11.2019 a missing report was
lodged by the father of victim that her minor daughter is missing since
05.11.2019 from School and her whereabouts could not be traced out.
Based on written complaint, FIR Ex.P/5 was registered by the police
against unknown person for the offence under Section 363 IPC and
started investigation. During the course of investigation, on 15.11.2019
the victim was recovered from the possession of appellant and
recovery Panchnama Ex.P/1 was prepared in presence of witnesses.
The victim was sent for her medical examination to Community Health
Centre, Katghora where she was medically examined by Dr. Smt.
Nomita Singh, PW-6, who gave her report Ex.P/2. While medically
examining the victim, the doctor has not noticed any external injuries
on her body, however her hymen was found old ruptured. The doctor
opined that victim was habitual for sexual intercourse. Two slides of her
3
vaginal swab were prepared, sealed and handed over to police for
chemical examination. She referred the victim for Radiologist for age
determination. Spot map Ex.P/6 was prepared by the police. The
underwear of victim was seized memo vide Ex.P/3. With respect to
date of birth of victim, the police seized her Progress Card Report of
Class-VIIIth, Article-A-1 vide seizure memo Ex.P/7 and school register
vide seizure memo Ex.P/23 and after retaining its attested true copy
Ex.P/23-C, the original record was returned back. According to school
register, the date of birth of victim is 10.11.2004. As per x-ray report
Ex.P/13, the doctor opined the age of victim to be more than 16 years
and less than 18 years. The appellant was arrested on 15.11.2019 and
he too was sent for his medical examination to Community Health
Centre, Katghora, where he was examined by Dr. V.K. Singh, PW-7,
who gave his report Ex.P/10 and found him capable to perform sexual
intercourse. The underwear of victim and her vaginal slides and the
underwear of appellant were sent for its chemical examination to
Regional FSL, Bilaspur, from where report Ex.P/22 was received
according to which no sperm were found on the vaginal slide of victim,
however semen and sperms were found present on the underwear of
appellant and victim.
4 The statement of witnesses under Section 161 CrPC and statement of
victim under Section 164 CrPC have been recorded and after
conclusion of usual investigation charge sheet was filed against the
appellant for the offence under Sections 363,366,376 IPC and Section
6 of POCSO Act.
4
5 The trial court framed charge against the appellant for the offence
under Sections 363,366,376(2)(n) IPC and Section 6 of POCSO Act.
The appellant denied the charge and claimed trial.
6 In order to establish the charge against the appellant, the prosecution
has examined as many as 13 witnesses, whereas one defence witness
has been examined. Statement under Section 313 CrPC of the
appellant have also been recorded in which he denied the
circumstances appears against him, pleaded innocence and have
submitted that he has been falsely implicated in the offence.
7 After appreciation of oral as well as documentary evidence led by the
prosecution, the trial Court has convicted the appellant and sentenced
him as mentioned in opening para of this judgment. Hence this appeal.
8 Learned counsel for respective appellant would submit that the
prosecution has failed to prove its case beyond reasonable doubt.
There are material omissions and contradictions in the prosecution
witnesses which cannot be made basis to convict him in the offence in
question. The entire conduct of victim is suspicious throughout the
proceeding. There is no cogent and admissible evidence with respect
to age of victim that she was minor and less than 18 years of age on
the date of incident. School record has not been proved by the
prosecution in accordance with law. In her medical examination, no
injuries have been found on the body and there is no sign of any
protest. The victim was major girl having love affair with the appellant.
She eloped with him on her own will and engaged in making
consensual physical relation with him. She resided with appellant in his
relative’s house without raising any objection or making complaint to
5
anyone. Thus, in absence of any cogent and clinching evidence
against the appellant, he cannot be convicted for the alleged offences.
The ingredients required for conviction under the offence of kidnapping
and rape are missing. Therefore, the appeal may be allowed and the
appellant be acquittal from all the charges.
9 On the other hand, learned counsel for the State opposes the
submissions made by the counsel for appellant and would submit that
prosecution has proved its case beyond doubt. But for minor omission
or contradiction, there are sufficient and overwhelming evidence
against the appellant to convict him in the offence in question. The
victim was minor on the date of incident which is proved from her
school record as well as Radiologist report. Once it has been
considered that victim was minor, there is no question of her consent or
elopement with the appellant on her own will. He abducted the victim
from her school and took her to his sister’s house and stayed for
couple of days and thereafter he took her to his maternal uncle’s house
and stayed there from where the police recovered them. Even if no
injuries were found on her body and her hymen was found old ruptured
and healed, but that itself does not dilute the prosecution case as
sperms and semen were found on the underwear of victim which
strengthens the case of prosecution that appellant committed sexual
intercourse with her. Therefore, the judgment of conviction and
sentence is absolutely justified and not required to be interfered with.
10 We have heard the counsel for the parties and perused the records of
the trial court.
6
11 The first and foremost question would be the age of the victim as to
whether she was minor on the date of incident or not?
12 The prosecution has mainly relied upon document Ex.P/23-C which is
the attested true copy of school register and sought to be proved by
PW-12 who is Head Master of the school. He has stated in his
evidence that police has seized the school register with respect to date
of birth the victim. After retaining its attested true copy Ex.P/23-C, the
police has returned back the original register. As per school register,
the date of birth of victim is 10.11.2004. The victim was admitted in the
school in Class-I. In cross examination, he admits that he was not
posted in the said school at the time of admission of victim. There is no
endorsement in the school register as to who made entry in the school
register. He further admits that there is no mention about the basis on
which the date of birth of victim is recorded in the school register. Even
at the time of seizure of school record by the police, he was not posted
there.
From the evidence of this witnesses, it does not reflect that he
was the author of school register and also the basis on which the date
of birth of victim was recorded.
13 In the matter of Alamelu and Another Vs. State, represented by
Inspector of Police, 2011 (2) SCC 385, which is in respect of
admissibility of school records of a person, the Hon’ble Supreme Court
has held that the transfer certificate which is issued by government
school and is duly signed by the headmaster would be admissible in
evidence under Section 35 of the Evidence Act 1872. However, the
admissibility of such a document would be of not much evidentiary
7
value to prove the age of the victim in the absence of any material on
the basis of which the age was recorded. The Hon’ble Supreme court
held that 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.
14 In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra),
the 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:-
“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:-
8
“The legal position is not in dispute that mere production and marking
of a document as exhibit by the court cannot be held to be a due proof
of its contents. Its execution has to be proved by admissible evidence,
that is, by the “evidence of those persons who can vouchsafe for the
truth of the facts in issue”.”
44. In our opinion, the aforesaid burden of proof has not been
discharged by the prosecution. The father says nothing about the
transfer certificate in his evidence. The Headmaster has not been
examined at all. Therefore, the entry in the transfer certificate can not
be relied upon to definitely fix the age of the girl.
48. We may further notice that even with reference to Section 35 of
the Indian Evidence Act, a public document has to be tested by
applying the same standard in civil as well as criminal proceedings. In
this context, it would be appropriate to notice the observations made
by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4
held as follows:-
“The age of a person as recorded in the school register or otherwise
may be used for various purposes, namely, for obtaining admission;
for obtaining an appointment; for contesting election; registration of
marriage; obtaining a separate unit under the ceiling laws; and even
for the purpose of litigating before a civil forum e.g. necessity of being
represented in a court of law by a guardian or where a suit is filed on
the ground that the plaintiff being a minor he was not appropriately
represented therein or any transaction made on his behalf was void as
he was a minor. A court of law for the purpose of determining the age
of a (2006) 5 SCC 584 party to the lis, having 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 accused may unjustly be convicted.”
15 In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &
Others, 2022 (8) SCC 602, while considering various judgments, the
Hon’ble Supreme Court has observed in para 33 as under:
“33. What emerges on a cumulative consideration of the aforesaid
catena of judgments is as follows:
33.2.2. If an application is filed before the Court claiming juvenility, the
provision of sub-section (2) of section 94 of the JJ Act, 2015 would
have to be applied or read along with sub-section (2) of section 9 so as
to seek evidence for the purpose of recording a finding stating the age
of the person as nearly as may be.
XXXX XXXX XXXX
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
9
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, a declaration is made on the basis of evidence.
Also the age recorded by the JJ Board shall be deemed to be the true
age of the person brought before it. Thus, the standard of proof in an
inquiry is different from that required in a proceeding where the
determination and declaration of the age of a person has to be made
on the basis of evidence scrutinised and accepted only if worthy of
such acceptance.
33.6. That it is neither feasible nor desirable to lay down an abstract
formula to determine the age of a person. It has to be on the basis of
the material on record and on appreciation of evidence adduced by the
parties in each case.
33.7 This Court has observed that a hypertechnical approach should
not be adopted when evidence is adduced on behalf of the accused in
support of the plea that he was a juvenile.
33.8. If two views are possible on the same evidence, the court should
lean in favour of holding the accused to be a juvenile in borderline
cases. This is in order to ensure that the benefit of the JJ Act, 2015 is
made applicable to the juvenile in conflict with law. At the same time,
the Court should ensure that the JJ Act, 2015 is not misused by
persons to escape punishment after having committed serious
offences.
33.9. That when the determination of age is on the basis of evidence
such as school records, it is necessary that the same would have to be
considered as per Section 35 of the Indian Evidence Act, inasmuch as
any public or official document maintained in the discharge of official
duty would have greater credibility than private documents.
33.10. Any document which is in consonance 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.”
10
16 Recently, 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 the description of any class of
documents mentioned in Section 94(2)(i) as it was a mere transfer
certificate, Ex C-1 could not have been relied upon to hold that M was
below 18 years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar
Pradesh & Ors. this court outlined the procedure to be followed in
cases where age determination is required. The court was dealing with
Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari
materia) with Section 94 of the JJ Act, and held as follows:
“20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be
followed in determination of age. The juvenility of a person in conflict
with law had to be decided prima facie on the basis of physical
appearance, or documents, if available. But an inquiry into the
determination of age by the Court or the JJ Board was by seeking
evidence by obtaining: (i) the matriculation or equivalent certificates, if
available and in the absence whereof; (ii) the date of birth certificate
from the school (other than a play school) first attended; and in the
absence whereof; (iii) the birth certificate given by a corporation or a
municipal authority or a panchayat. Only in the absence of either (i), (ii)
and (iii) above, the medical opinion could be sought from a duly
constituted Medical Board to declare the age of the juvenile or child. It
was also provided that while determination was being made, benefit
could be given to the child or juvenile by considering the age on lower
side within the margin of one year.”
16. Speaking about provisions of the Juvenile Justice Act, especially
the various options in Section 94 (2) of the JJ Act, this court held in
Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:
“Clause (i) of Section 94 (2) places the date of birth certificate from the
school and the matriculation or equivalent certificate from the 2021
11(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 from the school first
attended, could be obtained. In Section 94(2)(i) both the date of birth
certificate from the school as well as the matriculation or equivalent
certificate are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal,
this court, through a three-judge bench, held that the burden of proving
that someone is a juvenile (or below the prescribed age) is upon the
person claiming it. Further, in that decision, the court indicated the
hierarchy of documents that would be accepted in order of
preference.”
17 Reverting to the facts of present case, the victim PW-1 have stated her
date of birth as 11.10.2004. In cross examination, she has stated that
she is about 7 years younger than her elder sister and her elder sister
is presently aged about 25-26 years. She admits in para 38 in her
evidence that her date of birth was disclosed by her parents and on
that basis she is disclosing the same. She is disclosing her date of birth
which has been written in Jacha-Bacha Card, Adhar Card and in her
marksheet.
From her evidence it transpires that she disclosed her date of
birth as 11.10.2004 on the basis of entries made in Jacha-Bacha Card,
Adhar Card and school record. When the school record itself is found
insufficient as the same has not been proved in accordance with law;
there is variance of date of birth disclosed by victim as well as date of
birth recorded in school record and therefore it cannot be consistently
said that her date of birth was correctly recorded in the school.
12
18 PW-2, the father of victim (wrongly mentioned as PW-1 in the
deposition sheet) has not disclose any date of birth of his daughter. In
cross examination, he stated that with respect to date of birth of his
daughter, he has given class-VIII marksheet, Article-A-1 to the police.
He stated that he got married in the year 1994 and his first child was
born in the year 1995-96. The date of birth of victim was recorded in
Kotwari register. He went in school for getting her daughter admitted
where he produced Jaccha-Bacha card. He admits that Kotwari
certificate was not submitted in the school.
19 There is no clear date of birth of victim disclosed by him in his
evidence. Thus, from the overall evidence available in record, it can
safely be held that the prosecution has not been able to prove the age
of victim that she was minor on the date of incident. Further the
defence has examined DW-1 who is Kotwar of the village and he
contradicts the evidence of PW-2, father of victim, and stated that in
the Kotwari register of the year 2004 he does not find any entry which
relates to birth of victim. Therefore, the evidence of PW-2 about age of
victim stands contradicted by the evidence of DW-1. Another piece of
evidence about the age of victim is the ossification test report
conducted by PW-9, Dr. Dilish Singh, who after examining various
bone joints of victim has opined that victim is between 16 to 18 years of
age. Though he denied that there is error of margin of 3 years on either
side, however, he admits that margin of error depends upon the
environment and nurture of the person concerned.
20 Regarding error of margin in the ossification test report based on bone
joint examination, the Supreme Court has consider the error of margin
13
of two years in either side in case of Ramdeo Chauhan Vs. State of
Assam, 2001(5)SCC714 wherein in paragraph 51 it was observed as
under :
“51. In his report the doctor has detailed all the data on which he
reached his conclusion. I do not propose to extract all such data here
except pointing out that such data collected by Dr. B.C. Roy are in
consonance with the guidelines provided in the text-books on medical
jurisprudence. (vide Modis Medical Jurisprudence and Jhala & Rajus
Medical Jurisprudence). Ossification test is done for multiple joints, for
which the radiological report was obtained. The margin of error
according to authorities on medical jurisprudence can be two years
either way as the maximum. In this context it is useful to extract the
relevant passage from Jhala & Rajus Medical Jurisprudence (6th Edn.,
page 198):
If ossification test is done for a single bone the error may be two
years either way. But if the test is done for multiple joints with
overlapping age of fusion the margin of error may be reduced.
Sometimes this margin is reduced to six months on either side.”
21 Considering the totality of the evidence produced by the prosecution, it
cannot be said that victim was proved to be minor on the date of
incident and less than 18 years of age, yet the trial has held her minor
based on school records which has not been proved by the
prosecution in accordance with law. Thus, this court is of the opinion
that prosecution could not establish that victim was minor on the date
of incident.
22 So far as the offence of kidnapping and rape is concerned, we again
examine the evidence of victim PW-1.
23 The victim has stated in her evidence that on 05.11.2019 when she
went to Stationery shop to purchase a Pen, the appellant asked her to
accompany, to which she denied, but cousin brother of appellant forced
her to go with appellant and tried to drag her. The appellant was having
sword which he put it on her neck and forcibly took her in his
motorcycle. The appellant administered some intoxicate drug on her
mouth due to which she became unconscious and she regain
14
conscious at village Girodpuri in the evening. They stayed in a
community hall where the appellant committed rape upon her despite
her protest. In the morning, the appellant and his cousin brother took
her to village Pachri where the sister of appellant was residing. She
requested her sister to let her go to her house, to which she refused to
intervene in the matter. They stated 2-3 days in the house of his sister
where the appellant made physical relation every day. When the father
of appellant came to village Pachari, she requested him also for her
release but she could not convince him to let her go. The father of
appellant took the victim and appellant both to maternal uncle’s house
of appellant at village Sakreli where also the appellant committed rape
upon her. On call being made by the maternal uncle of appellant to her
father, the police came and took her back.
In cross examination, she states that when the appellant asked
her to accompany, number of persons were present there and when
she was being dragged by the cousin brother of appellant, she
shouted, but no one came forward in her help. She denied that the
place where she was being dragged by the appellant and his cousin
brother is visible from the class room of her school. She further states
that in her police statement she could not disclose the incident of
putting sword on her Neck by the appellant. Even in the statement
made before Magistrate, she has not disclosed the same, and first time
stated before the court. She states that when the appellant forcibly took
her by his motorcycle, she received injuries on her hand, but she could
not disclose it to the police or Magistrate. She admits that when the
appellant took her by motorcycle, her mouth was open. She does not
15
know what medicine/drug the appellant administered her. The
administration of medicine and went on unconsciousness has been
disclosed before the police as well as Magistrate.
24 From her detailed cross examination, the victim denied all the
suggestions given by the defence and stuck on the point that after the
appellant kidnapped her, he administered her intoxicating drug by
which she went unconscious and therefore she could not raise alarm.
However, from her entire evidence it transpires that even after
regaining conscious at village Girodhpuri she did not make any effort to
get flee from appellant and except the statement that she asked the
sister and father of appellant to let her go, no efforts have been made
by her. Even there is no sign of any protest found on her body. She
visited place to place, stayed 2-3 days in every place but have not
raised any alarm at any place. When the entire evidence of victim is
shaky, her evidence cannot be believed for maintaining conviction of
the appellant for the alleged offences of kidnapping or rape. Rather, the
evidence suggest that she being major girl having love affair with the
appellant, eloped with him on her own free will and made consensual
physical relation with him. She made statement against the appellant
on the instance of her parents.
25 In case of Dola @ Dolagobinda Pradhan Vs. The State of Odisha,
2018(18)SCC 695, the Supreme Court has observed as under:
“7. In this regard it would be useful to quote certain observations of this
Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of
Gujarat, [(1983) 3 SCC 217] wherein it is observed that:
“10. By and large these factors are not relevant to India, and the
Indian conditions. Without the fear of making too wide a
statement, or of overstating the case, it can be said that rarely
will a girl or a woman in India make false allegations of sexual
assault on account of any such factor as has been just enlisted.
16
The statement is generally true in the context of the urban as
also rural Society. It is also by and large true in the context of the
sophisticated, not so sophisticated, and unsophisticated society.
Only very rarely can one conceivably come across an exception
or two and that too possibly from amongst the urban elites.
Because: (1) A girl or a woman in the tradition bound non-
permissive Society of India would be extremely reluctant even to
admit that any incident which is likely to reflect on her chastity
had ever occurred. (2) She would be conscious of the danger of
being ostracised by the Society or being looked down by the
Society including by her own family members, relatives, friends
and neighbours. (3) She would have to brave the whole world. (4)
She would face the risk of losing the love and respect of her own
husband and near relatives, and of her matrimonial home and
happiness being shattered. (5) If she is unmarried, she would
apprehend that it would be difficult to secure an alliance with a
suitable match from a respectable or an acceptable family. (6) It
would almost inevitably and almost invariably result in mental
torture and suffering to herself. (7) The fear of being taunted by
others will always haunt her. (8) She would feel extremely
embarrassed in relating the incident to others being over
powered by a feeling of shame on account of the upbringing in a
tradition bound society where by and large sex is taboo. (9) The
natural inclination would be to avoid giving publicity to the
incident lest the family name and family honour is brought into
controversy. (10) The parents of an unmarried girl as also the
husband and members of the husband’s family of a married
woman would also more often than not, want to avoid publicity on
account of the fear of social stigma on the family name and
family honour. (11) The fear of the victim herself being considered
to be promiscuous or in some way responsible for the incident
regardless of her innocence. (12) The reluctance to face
interrogation by the investigating agency, to face the court, to
face the cross examination by Counsel for the culprit, and the risk
of being disbelieved, acts as a deterrent.
11. In view of these factors the victims and their relatives are not
too keen to bring the culprit to books. And when in the face of
these factors the crime is brought to light there is a built-in
assurance that the charge is genuine rather than fabricated. On
principle the evidence of a victim of sexual assault stands on par
with evidence of an injured witness. Just as a witness who has
sustained an injury (which is not shown or believed to be self
inflicted) is the best witness in the sense that he is least likely to
exculpate the real offender, the evidence of a victim of a sex-
offence is entitled to great weight, absence of corroboration
notwithstanding. And while corroboration in the form of eye
witness account of an independent witness may often be
forthcoming in physical assault cases, such evidence cannot be
expected in sex offences, having regard to the very nature of the
offence. It would therefore be adding insult to injury to insist on
corroboration drawing inspiration from the rules devised by the
courts in the Western World (Obeisance to which has perhaps
become a habit presumably on account of the colonial hangover).
We are therefore of the opinion that if the evidence of the victim
does not suffer from any basic infirmity, and the “probabilities
factors” does not render it unworthy of credence, as a general
17rule, there is no reason to insist on corroboration except from the
medical evidence, where, having regard to the circumstances of
the case, medical evidence can be expected to be forthcoming,
subject to the following qualification: Corroboration may be
insisted upon when a woman having attained majority is found in
a compromising position and there is a likelihood of her having
levelled such an accusation on account of the instinct of self-
preservation. Or when the ‘probabilities factor’ is found to be out
of tune”.
(emphasis supplied)”
26 The Supreme Court in the matter of Santosh Prasad @ Santosh
Kumar Vs. State of Bihar, 2020 (3) SSC 443, has observed about
sterling witness in its judgment. In paragraph 5.4.2 it has been held
that:
“5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had
an occasion to consider who can be said to be a “sterling witness”. In
paragraph 22, it is observed and held as under:
“22 In our considered opinion, the “sterling witness” should be of
a very high quality and calibre whose version should, therefore,
be unassailable. The court considering the version of such
witness should be in a position to accept it for its face value
without any hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what would be
relevant is the truthfulness of the statement made by such a
witness. What would be more relevant would be the consistency
of the statement right from the starting point till the end, namely,
at the time when the witness makes the initial statement and
ultimately before the court. It should be natural and consistent
with the case of the prosecution qua the accused. There should
not be any prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may be
and under no circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved, as well as
the sequence of it. Such a version should have co-relation with
each and every one of other supporting material such as the
recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion. The
said version should consistently match with the version of every
other witness. It can even be stated that it should be akin to the
test applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged against him. Only if
the version of such a witness qualifies the above test as well as
all other such similar tests to be applied, can it be held that such
a witness can be called as a “sterling witness” whose version can
be accepted by the court without any corroboration and based on
which the guilty can be punished. To be more precise, the version
of the said witness on the core spectrum of the crime should
remain intact while all other attendant materials, namely, oral,
documentary and material objects should match the said version
18in material particulars in order to enable the court trying the
offence to rely on the core version to sieve the other supporting
materials for holding the offender guilty of the charge alleged.”
27 PW-2, father of victim, have stated in his evidence that when the victim
could not return from her school, he lodged a missing report. After
about 10 days he recovered his daughter from the house of maternal
uncle of the appellant with the help of Janjgir-champa police. His
daughter informed him about the entire incident and rape upon her by
the appellant. In his cross examination he admits that the school
teacher informed him about missing of victim from school. In his police
statement he has not disclosed that his daughter informed him that
appellant took her on the point of knife. He admits that at the time
when his daughter was recovered from maternal uncle’s house of
appellant, many other villagers were present in that house. In his police
statement he has not disclosed that his daughter informed him that she
was being intoxicated by the appellant by administering drug.
From the evidence of this witness, there are material discrepancy with
the evidence of victim and even otherwise he is not an eyewitness to
the incident and only deposed on the basis of information given by
victim to him. Further, there are material omissions and contradictions
in his evidence also which cannot be relied upon to convict the
appellant for the alleged offence.
28 PW-6, Smt. Nomita Singh, who medically examined the victim have not
found any external injuries on the body of victim. No sign of any protest
was noticed by the doctor.
29 From cumulative examination of the evidence available on record, we
are of the considered opinion that prosecution has failed to prove its
19
case beyond reasonable doubt that the appellant kidnapped the victim
and committed rape upon her. When the victim was found to be major
on the date of incident and there is no evidence of any alarm or protest
raised by her while eloping with the appellant, it cannot be said that
victim was being kidnapped by the appellant.
30 In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942,
the Hon’ble Supreme Court has held 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 circumstances can
the two be regarded as meaning the same thing for the purposes of
Section 361 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 keeping 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 fulfilment 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”.”
31 Recently, the Hon’ble Supreme Court in case of Tilku @ Tilak Singh
Vs. State of Uttarakhand has also relied upon the aforesaid judgment
of S. Varadarajan (Supra) in its judgment dated 06.02.2025 passed in
Criminal Appeal No.183 of 2014.
20
32 From overall consideration, we are of the considered opinion that the
judgment of trial court suffers from perversity and illegality while
convicting the appellant for the alleged offence.
33 As a fallout of aforesaid consideration, the appeal is allowed and the
impugned judgment of conviction and sentence is hereby set aside.
The appellant is acquitted from all the charges. The appellant is
reported to be in jail since 15.11.2019. He be released forthwith, if not
required in any other case.
34 Keeping in view the provisions of Section 481 of B.N.S.S. 2023, the
appellant is directed to forthwith furnish a personal bond in terms of
Form No. 45 prescribed in the Code of Criminal Procedure of the sum
of Rs. 25,000/- with one reliable surety 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
inder
