Chattisgarh High Court
Dhananjay Barle vs State Of Chhattisgarh on 9 April, 2026
Author: Rajani Dubey
Bench: Rajani Dubey
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2026:CGHC:16245
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 494 of 2008
1 - Dhananjay Barle, S/o Mannu @ Dayaram Barle, Aged about 30
years, R/o Banbarad, Ward No. 14, P.S. Nandini Nagar, District- Durg
(C.G.)
... Appellant
versus
1 - State of Chhattisgarh, through the SHO, Police Station- Nandini
Nagar, District- Durg.
... Respondent(s)
For Appellant : Mr. Praveen Dhurandhar, Advocate
For Respondent(s)/State : Mr. Himanshu Yadu, P.L.
Hon’ble Smt Justice Rajani Dubey
Judgment on Board
09/04/2026
1. The present appeal has been filed under Section 374(2) of the
Code of Criminal Procedure against the judgment of conviction
and order of sentence dated 31.03.2008 passed by the learned
11th Additional Sessions Judge (Fast Track Court), Durg (C.G.) in
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Sessions Trial No. 153/2007, whereby, the learned trial Court has
convicted the appellant and sentenced him as under:-
Conviction Sentence
U/s 376 of IPC R.I. for 10 years and to pay a fine
of Rs.5,000/- , in default of
payment of fine, to further
undergo R.I. for 1 year
U/s 376 of IPC R.I. for 10 years and to pay a fine
of Rs.5,000/- , in default of
payment of fine, to further
undergo R.I. for 1 year
U/s 366 of IPC R.I. for 4 years and to pay a fine
of Rs.1,000/-, in default of payment
of fine, to further undergo rigorous
imprisonment for 6 months.
(All the sentences shall run
concurrently)
2. The prosecution case, in brief, is that the prosecutrix, a minor
aged about 16 years, was employed in a contracting business and
used to accompany the accused, who is a mason, for work at
Hingna Road. On the date of the incident, i.e. 08.07.2007, at
about 8:00 AM, the accused came to the house of the complainant
and took the prosecutrix along with him on the pretext of going to
work. However, the prosecutrix did not return to her home till 8:00
PM on the same day. Upon making inquiries, the complainant
came to know from one Khedva Sahu that the prosecutrix was last
seen in the company of the accused, namely Dhananjay.
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Thereafter, the complainant lodged a missing report of his
daughter at Police Station Nandini. On the basis of the said report,
a case under Sections 363 and 366 of the Indian Penal Code was
registered and investigation was commenced. During the course
of investigation, the prosecutrix was recovered from the house of
the accused’s maternal uncle, namely Sundarlal, situated in
village Gadadih and on the basis of information given by the
prosecutrix, the accused had committed rape on her. The
prosecutrix was thereafter subjected to medical examination with
the consent of her father. The accused was apprehended and also
medically examined. The clothes worn by the prosecutrix and the
accused were seized. During the medical examination of the
prosecutrix, vaginal slides were prepared and the same were sent
to the Forensic Science Laboratory, Raipur, for chemical
examination. Upon completion of investigation, a charge-sheet
was filed against the appellant for the offences punishable under
Sections 363, 366A, and 376 of the Indian Penal Code before the
learned Trial Court. Thereafter, the learned Trial Court framed
charges against the appellant under Sections 363, 366, and 376
(on four counts) of the Indian Penal Code. The appellant denied
the charges, pleaded not guilty and claimed to be tried in
accordance with law.
3. In order to establish the guilt of the accused/appellant, the
prosecution examined as many as 11 witnesses. The statement of
the accused/appellant was also recorded under Section 313 of the
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Code of Criminal Procedure, wherein he denied all the
incriminating circumstances put to him and pleaded innocence,
alleging false implication in the case. The accused/appellant,
however, did not lead any evidence in defence.
4. Upon appreciation of the oral as well as documentary evidence
available on record, the learned Trial Court, vide judgment dated
31.03.2008, held the prosecution case to be proved and the
evidence to be reliable and trustworthy. Consequently, the learned
Trial Court convicted the accused/appellant for the offences
punishable under Sections 366 and 376 (on two counts) of the
Indian Penal Code and sentenced him as specified in paragraph 1
of the impugned judgment. Hence, this appeal.
5. Learned counsel for the appellant submits that the impugned
judgment of conviction and sentence passed by the learned Trial
Court is erroneous, illegal and unsustainable in law as well as on
facts. The learned Trial Court has gravely erred in convicting and
sentencing the appellant for the alleged offences, as the findings
recorded are contrary to the material available on record and
settled principles of law. It is further submitted that the First
Information Report (FIR), which forms the very basis of the
prosecution case, has not been duly exhibited in accordance with
law, thereby vitiating the entire trial. The learned Trial Court failed
to properly consider that the prosecutrix (P.W.-4) was more than
16 years of age (approximately 16 years and 2 months) at the
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time of the alleged incident. The surrounding circumstances, her
conduct and the overall facts of the case clearly indicate that she
had voluntarily consented to accompany the appellant and
engage in the alleged act. In such circumstances, the conviction
of the appellant under Section 376 of the Indian Penal Code is
wholly unwarranted. Moreover, as per the statements of P.W.5
(Mother) and P.W.6 (Father), the prosecutrix was about 20 years
of age at the time of the incident. This material contradiction
regarding age has not been properly appreciated by the learned
Trial Court. If the prosecutrix was major, no offence under
Sections 366A and 376 IPC is made out. It is also submitted that
the prosecutrix had voluntarily accompanied the appellant from
her place of work, out of her own free will and without any
inducement, coercion, or threat. Hence, the essential ingredients
of the alleged offences of abduction and rape are not established.
In view of the aforesaid facts and circumstances, it is submitted
that the findings, reasoning, conviction and sentence recorded by
the learned Trial Court are perverse, bad in law and liable to be
set aside.
Reliance has been placed on the decision of Hon’ble
Supreme Court in the matter of Keshav and another Vs. State of
Maharashtra reported in 2025 SCC OnLine SC 989.
6. On the other hand, learned State counsel submits that the
impugned judgment of conviction and sentence passed by the
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learned Trial Court is well-reasoned, lawful and based on proper
appreciation of evidence on record. The prosecution has
successfully proved its case beyond reasonable doubt. Minor
discrepancies regarding age or procedural aspects like exhibition
of FIR do not affect the core of the prosecution case. The
testimony of the prosecutrix is reliable and sufficient to sustain
conviction. The plea of consent is untenable in the facts and
circumstances of the case. Hence, no interference is called for
and the appeal deserves to be dismissed.
7. Heard counsel for the parties and perused the material available
on record.
8. It is evident from the record of the learned Trial Court that charges
were framed against the appellant under Sections 363, 366 and
376 (on four counts) of the Indian Penal Code. Upon appreciation
of the oral and documentary evidence adduced on record, the
learned Trial Court convicted the appellant under Sections 376 (on
two counts) and 366 of the IPC and sentenced him accordingly.
9. As per the prosecution case, on the date of the alleged incident,
the prosecutrix was below 18 years of age. The prosecutrix (P.W.-
4), in her testimony, has stated that she was approximately 16
years of age at the relevant time.
10. The mother of the prosecutrix (P.W.-5), in her deposition, stated
that her eldest son was about 24 years of age and the next
younger son was about 22 years old. She further deposed that
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thereafter another son was born, followed by the prosecutrix, each
at an interval of approximately two years. She also stated that at
the time of her deposition, her eldest son was about 26 years of
age.
11. The father of the prosecutrix (P.W.-6), in his deposition, stated
that the year of birth of the prosecutrix is 1992. He denied the
suggestion put to him that her year of birth is 1989 and asserted
that he had duly got her date of birth registered. He further
admitted that his eldest son is about 26 years of age and deposed
that he has five children, each born at an interval of approximately
two years.
12. Khedvaram Sahu (P.W.-7) deposed that the prosecutrix was
engaged in road construction work on a contractual basis.
13. Nandkumar Verma (P.W.-3), a school teacher, stated that he
produced the school discharge register (Ex.P/4). As per the said
register, the name of the prosecutrix is entered at Serial No.
77/3181, showing her date of admission as 11.07.2001 and her
date of birth as 08.05.1991. He further proved the marksheet of
the prosecutrix (Ex.P/5) and identified his signature thereon
marked from ‘A’ to ‘A’..
In his cross-examination, he admitted that he had not made
the entry regarding the admission of the prosecutrix and had not
obtained any certificate concerning her date of birth at the time of
such entry. He further deposed that he was not aware of the basis
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on which the date of birth of the prosecutrix was recorded in the
school register.
14. The Hon’ble Apex Court in the matter of Alamelu and another
Vs. State, represented by Inspector of Police, (2011) 2 SCC 385
observed in paras 40 & 48 of its judgment as under:
“40. Undoubtedly, the transfer certificate, Ex.P16
indicates that the girl’s date of birth was 15th June,
1977. Therefore, even according to the aforesaid
certificate, she would be above 16 years of age (16
years 1 month and 16 days) on the date of the
alleged incident, i.e., 31st July, 1993. The transfer
certificate has been issued by a Government
School and has been duly signed by the
Headmaster. Therefore, it would be admissible in
evidence under Section 35 of the Indian Evidence
Act. However, the admissibility of such a document
would be of not much evidentiary value to prove the
age of the girl in the absence of the material on the
basis of which the age was recorded.
48. We may further notice that even with reference
to Section 35 of the Indian Evidence Act, a public
document has to be tested by applying the same
standard in civil as well as criminal proceedings. In
this context, it would be appropriate to notice the
observations made by this Court in the case of
Ravinder Singh Gorkhi Vs. State of U.P.4 held as
follows:-
15.
“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
9election; registration of marriage; obtaining a
separate unit under the ceiling laws; and even
for the purpose of litigating before a civil forum
e.g. necessity of being represented in a court
of law by a guardian or where a suit is filed on
the ground that the plaintiff being a minor he
was not appropriately represented therein or
any transaction made on his behalf was void
as he was a minor. A court of law for the
purpose of determining the age of a party to
the lis, having regard to the provisions of
Section 35 of the Evidence Act will have to
apply the same standard. No different standard
can be applied in case of an accused as in a
case of abduction or rape, or similar offence
where the victim or the prosecutrix although
might have consented with the accused, if on
the basis of the entries made in the register
maintained by the school, a judgment of
conviction is recorded, the accused would be
deprived of his constitutional right under Article
21 of the Constitution, as in that case the
accused may unjustly be convicted.”
16. In light of the aforesaid decision of the Hon’ble Supreme Court,
this Court finds that in the present case, no cogent and legally
admissible evidence has been brought on record by the prosecution to
establish that the prosecutrix was a minor on the date of the incident.
Despite this, the learned Trial Court recorded a finding in the impugned
judgment that she was a minor. Accordingly, the said finding is set
aside, and this Court holds that the prosecution has failed to prove that
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the prosecutrix was a minor at the relevant time.
17. The prosecutrix (P.W.-4), in her deposition, stated that on the date
of the incident, the accused came to her house and asked her to
accompany him for work, whereupon she went with him. Thereafter, the
accused took her to his sister’s house in village Khapri and
subsequently to the house of his maternal uncle in village Bori. She
further stated that while they were in village Bori, police personnel
arrived in search of her, and thereafter both of them were taken to
Ahiwara along with the police.
In her cross-examination, the prosecutrix stated that had the
police not arrived, she would not have returned and could have
continued to stay with the accused at village Bori. She further admitted
that while leaving with the accused, she did not inform anyone nor did
she raise any alarm or disclose to any person during the journey that
the accused had taken her forcibly.
18. Dr. Smt. Mamta Pandey (P.W.-10), who medically examined the
prosecutrix, deposed that no external or internal injuries were found on
her body. She further stated that no definite opinion could be given
regarding the commission of recent sexual intercourse. In this regard,
she submitted her medical report, which is exhibited as Ex.P/12.
19. In the matter of Keshav (supra), the Hon’ble Apex Court held in
paras 9 and 10 as under:-
“9. State of Punjab v. Gurmit Singh1, held that even without
any corroboration, if the evidence of the prosecutrix inspires
11confidence, it can be relied on and can also be the sole
ground for conviction. However, if it is difficult to place
implicit reliance on the testimony of the prosecutrix, then
the Court has to look for evidence to lend assurance to her
testimony which would be short of corroboration required in
the case. The testimony of the prosecutrix must be
appreciated in the background of the entire case, was the
finding. Raju v State of M.P. 2, while reiterating the above
principle also cautioned that while rape causes the greatest
distress and humiliation, a false allegation of rape also can
cause equal distress, humiliation and damage to the
accused as well. The Court should be equally careful in
protecting the accused from a false implication. While
applying the broad principle that an injured witness, whose
presence cannot be doubted, as she would ordinarily not
lie, still there is no presumption or any basis for assuming
that the statement of such a witness is always correct or
without any embellishments.
10. Looking at the totality of the circumstances and the
entire story as narrated by the victims, PW 2 and PW 3, we
find difficulty in accepting their testimony to be one having
sterling quality. We cannot also say that the story as
narrated by the victims inspires confidence. Looking for
assurance, we find the entire narration to be unbelievable
and not substantiated on its finer details. As we noticed,
nobody is examined from the matrimonial house to speak
12on the victims having left their residence without Informing
their in-laws or their husbands. PW 4, as we noticed only
speaks of having seen the victims along with the child
travelling in a tempo, but he does not speak of the accused
travelling along with them. Neither did he identify the
accused in the dock nor was an attempt made by the
prosecution to carry out such an identification, in Court.
PWs 2 and 3 identified the accused and there was also a
test identification parade carried out. However, their story of
having been taken past Kurla and the rape in the deserted
field does not inspire confidence. Likewise, the subsequent
stay in Parbhani, that too for 15 days, is full of
inconsistencies and police also did not carry out any
investigation as to the place at which the victims stayed
along with the child of two years.”
20. Upon a close scrutiny and appreciation of the entire evidence on
record, it becomes evident that the prosecutrix was a consenting party
to the alleged act of the appellant. The material on record indicates that
she voluntarily accompanied the appellant and stayed with him of her
own free will. Further, in view of the finding already recorded by this
Court that the prosecution has failed to establish that the prosecutrix
was a minor on the date of the incident and considering the overall facts
and circumstances of the case, no offence is made out against the
appellant.
21. In the result, the appeal is allowed. The impugned judgment dated
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31.03.2008 passed by the learned Trial Court is hereby set aside. The
appellant is acquitted of the charges under Sections 366 and 376 (on
two counts) of the Indian Penal Code.
22. The accused/appellant is reported to be on bail, therefore,
keeping in view the provisions of Section 437-A of CrPC (481 of the
B.N.S.S.), appellant is directed to furnish a personal bond in terms of
form No.45 prescribed in the Code of Criminal Procedure for a sum of
Rs.25,000/- with two reliable sureties in the like amount before the
Court concerned which shall be effective for a period of six months
alongwith 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 thereon shall appear before the Hon’ble
Supreme Court.
23. 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/-
(Rajani Dubey)
JUDGE
Ruchi
Digitally signed by RUCHI
RUCHI YADAV YADAV