Chattisgarh High Court
Deepak Manikpuri vs State Of Chhattisgarh on 20 July, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
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CGHC010036742023 2026:CGHC:30571-DB
NAFR
SAGRIKA
AGRAWAL HIGH COURT OF CHHATTISGARH AT BILASPUR
Digitally signed by
SAGRIKA
AGRAWAL
CRA No. 269 of 2023
Date: 2026.07.22
10:49:50 +0530
Deepak Manikpuri S/o Komal Manikpuri Aged About 22 Years R/o Village
Arjuni, P.S. Bhatapara (Rural), District Balodabazar-Bhatapara (C.G.)
... Appellant(s)
versus
State Of Chhattisgarh Through The Station House Officer Police Station
Bhatapara (Rural) District Balaudabazar-Bhatapara (C.G.)
... Respondent(s)
(cause title taken from CIS)
For Appellant (s) : Mr. Vijay Shankar Mishra, Advocate
For State : Mr. Ashish Shukla, Addl. A.G.
For Objector : Mr. Vikas Kumar Gupta, Advocate
Hon’ble Mr. Ramesh Sinha, Chief Justice
Hon’ble Mr. Ravindra Kumar Agrawal, Judge
Order on Board
Per Ramesh Sinha, Chief Justice
20.07.2026
1. Heard Mr. Vijay Shankar Mishra, learned counsel for the appellant. Also
heard Mr. Ashish Shukla, Addl. Advocate General for the Respondent/
State and Mr. Vikas Kumar Gupta, learned counsel for Objector.
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2. The present criminal appeal has been filed by the appellant under
Section 374(2) of Code of Criminal Procedure against the impugned
judgment of conviction and sentence dated 17.10.2022 passed by
learned Addl. District and Sessions Judge (FTSC)(POCSO Act)
Bhatapara, Dist- Balodabazar- Bhatapara (C.G.) in Special Criminal
Case No. H-36/2020 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 07 years and fine of Rs. 500/- in
default of fine additional R.I. for 1 month.
2. Under Section 366A of R.I. for 10 years and fine of Rs. 1000/- in
IPC default of payment of fine additional R.I.
for 1 month.
3 Under Section 376 (3) of R.I. for 20 years and fine of Rs. 1000/- in
IPC default of payment of fine additional R.I.
for 1 month.
3. Under Section 6 of R.I. for 10 years and fine of Rs. 1000/-, in
Protection of Children default of payment of fine further R.I. for
from Sexual Offences Act, 01 month.
2012.
(All the sentences shall run concurrently)
3. The case of the prosecution is that (PW/1), the mother of the victim,
lodged a report on 30.10.2020 at Police Station- Bhatapara (Rural)
stating that on 29.10.2020, her minor daughter had gone to Village
Mirgi along with her friend and while returning at about 4:30 p.m., near
Leela Chowk, Village – Mirgi, the appellant forcibly made the victim sit
on his motorcycle and took her away without the consent of her
parents. On the basis of the said report, FIR (Ex- P/8) was registered
initially under Sections 363 and 366 of the I.P.C. During the
3
course of investigation, the victim was produced before the Police by
her father on 31.10.2020, whereupon recovery panchnama (Ex-P/13)
was prepared and she was subsequently handed over to her father
under Supurdnama (Ex-P/27). The victim was sent for medical
examination to Community Health Centre, Bhatapara, where she was
medically examined by (PW/3) Dr. Sushma Maheshwari, who
submitted her report (Ex-P/6). On medical examination, no external
injuries or injuries on the private parts of the victim were found, her
hymen was found to be old ruptured and the doctor opined that no
definite opinion could be given regarding recent forcible sexual
intercourse. Two vaginal slides, were prepared, sealed and handed
over to the Police for chemical examination. The appellant was also
medically examined by (PW/6) Dr. Hemant Mannewar, who submitted
his report (Ex-P/10) opining that the appellant was capable of
performing sexual intercourse, and his underwear was also seized and
sent for forensic examination. During investigation, the Police seized
the original school admission register and affidavit register relating to
the victim’s date of birth vide seizure memo (Ex-P/21), retained their
attested copies (Article A/1C and Article A/2C), and returned the
original records to the Headmaster under Supurdnama (Ex-P/26).
According to the school records, the victim’s date of birth is
25.07.2005. Spot maps (Ex-P/12 and Ex-P/9) were prepared by the
Investigating Officer and the Patwari respectively. The vaginal slides,
swabs, underwear of the victim and underwear of the appellant were
forwarded to the State Forensic Science Laboratory, Raipur, from
where report (Ex-P/28) was received, according to which semen stains
and human spermatozoa were detected on the victim’s
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underwear, vaginal slide and the appellant’s underwear. During
investigation, the statement of the victim under Section 164 of the
Cr.P.C. was recorded before the Judicial Magistrate First Class, Simga,
and the statements of the witnesses under Section 161 of the Cr.P.C.
were also recorded. On completion of the investigation, the Police filed
the charge-sheet against the appellant for offences punishable under
Sections 363, 366A and 376(3) of the IPC and Section 6 of the
Protection of Children from Sexual Offences Act, 2012 (POCSO Act)
before the learned trial Court.
4. The learned trial Court framed charges against the appellant for the
offences punishable under Sections 363, 366A and 376(3) of the Indian
Penal Code and Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (POCSO Act). The charges were read over and
explained to the appellant, who denied the allegations, pleaded not
guilty, and claimed to be tried.
5. 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 the circumstances appearing
against him, pleaded innocence, and submitted that he has been
falsely implicated in the case. The appellant did not examine any
witness in his defence.
6. After appreciation of the oral as well as documentary evidence
adduced by the prosecution, the learned trial Court found the appellant
guilty of the offences punishable under Sections 363, 366A and 376(3)
of the Indian Penal Code and Section 6 of the Protection of Children
from Sexual Offences Act, 2012. Accordingly, the appellant has been
5
convicted and sentenced as has been mentioned in the earlier part of
this judgment, hence this appeal.
7. 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 reliable and legally
admissible evidence. Though reliance has been placed on the School
Admission Register and the affidavit register, neither the person who
made the entries was examined nor was any Birth Certificate or other
primary document produced to substantiate the date of birth recorded
therein. It is further submitted that the victim herself admitted in her
cross-examination that she was in love with the appellant, had
voluntarily accompanied him of her own free will and that the appellant
had not committed any wrong with her at his uncle’s house. It is further
argued that the victim did not support the prosecution case during trial
and specifically admitted that she had not stated before the police that
the appellant had established physical relations with her on the
promise of marriage. Learned counsel would also submit that the victim
was not recovered from the custody or possession of the appellant
and, in fact, she was produced before the police by her own father, as
is evident from the prosecution evidence. It is further contended that
the medical evidence also does not support the prosecution case
inasmuch as no external or internal injuries were found on the body or
private parts of the victim, her hymen was found to be old ruptured and
the doctor categorically opined that no definite opinion could be given
6
regarding recent forcible sexual intercourse. It is further argued that the
First Information Report was based entirely on hearsay, the material
witness i.e. her friend was not examined by the prosecution and 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.
8. 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 below 16 years of age on the
basis of the School Admission-Withdrawal Register (Articles A-1 & A-2)
reflecting her date of birth as 25.07.2005, which has been duly proved
by the Headmaster (PW-13) and corroborated by seizure witness (PW-
8). It is further submitted that the testimony of the victim (PW-2) is
trustworthy and inspires confidence, as she specifically affirmed before
the learned Trial Court upon clarification that the appellant committed
sexual intercourse with her, and her version is duly corroborated by the
medical evidence, the testimony of her parents (PW-1, mother of the
victim & PW-14, father of the victim), and the FSL Report (Ex. P-28)
confirming the presence of human spermatozoa and semen stains on
the victim’s garments, slides, and the appellant’s underwear. Since
7
the victim was a minor, her consent, if any, is wholly immaterial in the
eyes of law and the fact that she might have accompanied the
appellant voluntarily does not absolve him of his criminal liability. It is
further argued that the prosecution has established beyond doubt that
the appellant enticed and abducted the victim from the lawful
guardianship of her parents and committed repeated penetrative
sexual assault upon her between 29.10.2020 and 31.10.2020 at Village
Karhi (Simga), thereby attracting the offences punishable under
Sections 363, 366A, and 376(3) of the IPC as well as Section 6 of the
Protection of Children from Sexual Offences Act, 2012. Therefore, the
learned Trial Court has rightly appreciated the entire evidence on
record and recorded the conviction of the appellant, and the impugned
judgment of conviction and sentence dated 17.10.2022 warrants no
interference by this Court.
9. We have heard learned counsel for the parties and perused the
material annexed with the appeal.
10.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.
11. The prosecution has mainly relied upon the school admission register
(Article A-1) and its certified copy (Article A-1C) to establish the age of
the victim, which were sought to be proved through PW-13, the
Headmaster of Government Primary School, Arjuni. PW-13, Head
Master deposed that the police had seized the original admission
register and affidavit register vide seizure memo (Ex. P-21) and, after
retaining the certified copies, returned the original registers to him
under Supurdnama (Ex. P-26). According to the entry at Serial
8
No. 1081 of the admission register, the date of birth of the victim was
recorded as 25.07.2005. However, in his cross-examination, PW-13
categorically admitted that the entries contained in Article A-1 and
Article A-2 had not been made by him and that he was unable to state
who had actually made those entries. He further admitted that no birth
certificate or any other documentary proof had been obtained at the
time of recording the victim’s date of birth in the school register and
that he was not aware of the basis on which the date of birth had been
entered, which could only be explained by the person who had made
the entry. Thus, although the prosecution has relied upon the school
records to establish the age of the victim, neither the author of the
entries nor any foundational document, such as a birth certificate or
any contemporaneous record, was produced to substantiate the
correctness of the date of birth recorded therein. In the absence of
proof regarding the source of the entry, the school register, by itself,
cannot be treated as conclusive evidence of the victim’s age, and the
prosecution has failed to establish the exact date of birth of the victim
beyond reasonable doubt.
12.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
9School 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:-
10
“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 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
11conviction 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.”
13. 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
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
12
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
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
13
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.”
14. 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
14relied 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 (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
15of (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
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.”
15. Reverting to the facts of the present case, on examining the evidence
relating to the age of the victim, it is found that the prosecution has
relied principally upon the entries made in the school admission
register to establish her date of birth. The victim (PW-2), in her
evidence, stated that she was 15 years of age on the date of her
deposition i.e. 22.01.2021, but candidly admitted that she did not know
her exact date of birth. Her mother (PW-1) and father (PW-14) also
deposed that they did not remember the victim’s date of birth. To prove
her age, the prosecution examined PW-8 and PW-13, through whom
the school admission register and affidavit register were brought on
record showing the date of birth of the victim as 25.07.2005. However,
PW-13, the Headmaster, admitted in his cross-examination that the
entries in the admission register had not been made by him and that no
birth certificate or any other documentary proof of age had been
16
obtained at the time of admission for recording the date of birth in the
school records. Thus, the prosecution failed to establish that the date
of birth recorded in the school register was based on any
contemporaneous or authentic document. Despite these admissions,
the learned trial Court accepted the entries in the school register and,
relying upon the oral evidence of the victim and her parents regarding
her approximate age, concluded that the victim was below 16 years of
age and below 18 years of age on the date of the incident.
16. PW-1 who is the mother of the victim also stated in her deposition that
she could not tell the exact date of birth of the victim. In cross-
examination, she stated that the victim was admitted to the school by
her family and whatever she has narrated in the court regarding the
incident was as per the telling of some other person. She admitted that
she does not know her daughter’s exact date of birth and whatever
documents she signed at the police station, she was not made aware
as to what was written on them. She further admitted that she is a
hearsay witness as she herself did not witness the occurrence.
17.(PW-14), who is the father of the victim, stated in his evidence that the
age of the victim was 17 years at the time of giving his deposition on
18.07.2022 and he did not remember the exact date of birth of the
victim. In cross-examination, he admitted that he was away at work at
the time of the incident and had no personal knowledge of the
occurrence. He also admitted that he could not tell on what basis the
date of birth of the victim was recorded in the school register by her
family or school authorities, as he did not know.
18.From this evidence, the prosecution has utterly failed to produce
cogent evidence with respect to the date of birth of the victim. When
17
the victim (PW-2) herself has stated in her deposition that her age was
15 years on 22.01.2021 and she did not know her exact date of birth,
her mother (PW-1) stated that she could not tell the date of birth of the
victim, and her father (PW-14) made a statement that the victim was 17
years of age on 18.07.2022 and he also could not recall her exact date
of birth. From the evidence of the school records produced by
Headmaster (PW-13), the date of birth of the victim appears as
25.07.2005, whereas the parents and the victim herself have express
ignorance regarding the primary basis or foundational document on
which such entry was made, with PW-13 admitting in cross-
examination that no birth certificate was obtained for making the entry
and the entry was not made by him. Thus, there is complete
inconsistency and ambiguity regarding the date of birth of the victim,
and there is no consistent oral or documentary evidence about her
age. There is no other reliable evidence like a municipal birth
certificate, Kotwari register, or radiological ossification test report for
determination of the exact age of the victim. Therefore, we are of the
opinion that the learned Trial Court has incorrectly recorded the finding
that the victim was a minor below 16 years of age on the date of the
incident.
19. So far as, the offence of kidnapping and rape are concerned, we again
examined the evidence of victim (PW/2).
20. The victim (PW-2) deposed that she knew the appellant and that on the
date of the incident, while returning from Village Mirgi with her friend,
she accompanied the appellant to his maternal uncle’s house where
they stayed for one night, after which the appellant dropped her back at
Village Mirgi and she returned home on foot. In her cross-
18
examination, she admitted that she was in love with the appellant, had
voluntarily accompanied him and that the appellant’s maternal uncle
and aunt advised them to return home as they were not of
marriageable age. She further admitted that the appellant did not
commit any wrongful act with her at his maternal uncle’s house and
that she had not stated before the police that the appellant had
established physical relations with her on the promise of marriage.
Though, in response to a question put by the Court regarding the
inconsistency in her statements, she subsequently stated that the
appellant had established physical relations with her, the same is
contrary to her categorical admissions made during cross-examination.
Thus, the testimony of the victim contains material contradictions on
the core allegation of sexual assault, while her admissions clearly
indicate that she had voluntarily accompanied the appellant.
21.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
keeping of her lawful guardian. Something more has to be
shown in a case of this kind and that is some kind of
19inducement 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”.
22. 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
enticement but what we have to find out is whether
the part played by the appellant amounts to “taking”
20
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
father. She willingly accompanied him and the law
did not cast upon him the duty of taking her back to
21
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.”
23.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
victim 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 victim
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
the same time a false allegation of rape can cause
equal distress, humiliation and damage to the
22
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.
24.PW-1, who is the mother of the victim, is admittedly not an eyewitness
to the occurrence and her entire testimony is based on what was
allegedly narrated to her by the victim’s friend and subsequently by the
victim herself after her return. She deposed that on the date of the
incident she had gone to the agricultural field and came to know about
the victim having left with the appellant only on being informed by her
friend. She further stated that after the victim returned home on the
next day, the victim informed her that the appellant had held her hand,
made her sit on the motorcycle and taken her away. However, in her
cross-examination, PW-1 (mother of the victim) categorically admitted
that whatever she had deposed regarding the incident was on the
basis of information supplied by other persons and that she had no
personal knowledge either as to where the victim had gone with her
friend or as to who had left the victim at village Mirgi. She also admitted
that she did not know the contents of the documents on which her
thumb impression had been obtained by the police. Thus, the evidence
of PW-1,mother of the victim, is essentially hearsay in nature and does
not constitute substantive evidence regarding the occurrence. Her
23
testimony merely establishes that she lodged the FIR after receiving
information from others and cannot be treated as an independent or
direct piece of evidence to prove the allegations against the appellant.
Consequently, her evidence does not materially advance the
prosecution case and is of limited evidentiary value on the core issue
of the alleged kidnapping and sexual assault.
25.PW-14, the father of the victim, is also not an eyewitness to the alleged
occurrence. In his examination-in-chief, he merely stated that the
appellant had taken away his daughter and that he had gone to the
police station after being informed by his wife about the incident. He
proved the recovery memo (Ex. P-13), the supurdnama (Ex. P-27) and
the seizure memo of the victim’s undergarment (Ex. P-3). However, in
his cross-examination, he categorically admitted that the victim had
never narrated the incident to him and that he had not personally seen
the victim leaving with the appellant. He further admitted that he was
illiterate and had affixed his signatures on the documents wherever the
police had directed him to do so. Thus, the testimony of PW-14 is not
based on his personal knowledge of the alleged occurrence but is
founded solely on information received from others. His evidence,
therefore, is purely hearsay so far as the alleged kidnapping and
sexual assault are concerned and does not provide any independent
corroboration to the prosecution case. At best, his testimony proves the
procedural aspects relating to the recovery of the victim and
preparation of the seizure documents, but it does not establish the
commission of the alleged offences by the appellant.
26.(PW-3), Dr. Sushma Maheshwari, who medically examined the victim,
has not noticed any internal or external injuries on the body of the
24
victim and proved her MLC report (Ex. P-6). She specifically admitted
in cross-examination that no signs of struggle or force were found on
the person of the victim, nor was any injury observed on her private
parts, and further stated in her opinion that she could not definitively
state whether recent sexual intercourse had occurred. Even though the
FSL report (Ex. P-28) notes the presence of human spermatozoa and
semen stains on certain articles including the victim’s slides, penty, and
the appellant’s underwear, the medical evidence given by PW-3 clearly
indicates the absence of any recent forced or violent penetrative sexual
assault. Thus, the medical and physical findings completely fail to
corroborate any non-consensual sexual act or forcible assault, strongly
supporting the plea of innocence and consent.
27.(PW-8), who is the relative/witness associated with the seizure, and
other family witnesses, they also stated whatever was disclosed to
them or witnessed by them. However, key non-official witnesses
including (PW-8) turned hostile during cross-examination and did not
support the prosecution’s case regarding the forcible abduction or
sexual assault, except to the extent of the initial search and reporting of
the missing victim.
28.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
25
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.
29.From the consideration of the entire evidence produced by the
prosecution, we are of the considered opinion that the prosecution has
failed to prove the offences of kidnapping, abduction, and penetrative
sexual assault under Sections 363, 366A, and 376(3) of the IPC as
well as Section 6 of the POCSO Act against the appellant beyond
reasonable doubt, and the conviction and sentence of the appellant
recorded by the learned Trial Court cannot be sustained.
30.Accordingly, the appeal filed by the appellant is hereby Allowed. The
impugned judgment of conviction and sentences dated 17.10.2022
passed against the appellant are set aside. The appellant is
acquitted from all the charges.
31.The appellant is reported to be in jail since 17.10.2022. He shall be
released forthwith if not required in any other case.
32.Keeping in view the provisions of Section 374 (2) of Code of Criminal
Procedure, 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.
26
33.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
