Chattisgarh High Court
Dhaneshwar Kumar Dhritlahare vs State Of Chhattisgarh on 4 August, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
CGHC010294772025 2026:CGHC:33816-DB
NAFR
ROHIT
KUMAR
CHANDRA HIGH COURT OF CHHATTISGARH AT BILASPUR
Digitally signed
by ROHIT
CRA No. 1366 of 2025
KUMAR
CHANDRA
Dhaneshwar Kumar Dhritlahare S/o Ashok Kumar Dhritlahare, Aged
About 20 Years R/o Village Lutudeeh, Nala Kinare, Police Station Palari,
District Balodabazar Bhatapara Chhattisgarh
... Appellant
versus
State of Chhattisgarh Through Police of Police Station Vidhansabha,
District Raipur Chhattisgarh
... Respondent
For Appellant : Mr. Ajay Kumar Chandra, Advocate
For Respondent/ : Mr. Saumya Rai, Dy. Government Advocate
State
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
JUDGMENT ON BOARD
Per Ramesh Sinha, C.J.
04.08.2026
1. Today, though the matter is listed for hearing on I.A.No.01/2025,
which is an application for suspension of sentence and grant of
bail to the appellant, but considering the fact that the notice issued
to the father of the victim (PW-3) has been duly served upon him
2
by the State, however, none has appeared on his behalf to
contest the present bail application or the appeal in merit and
further considering the fact the appellant is in jail since
25.05.2020, with the consent of learned counsel for the parties,
the appeal is heard finally.
2. Accordingly, I.A. No. 01/2025 stands disposed of.
3. This criminal appeal under Section 415(2) of the Bhartiya Nagarik
Suraksha Sanhita, 2023 is directed against the impugned
judgment of conviction and order of sentence dated 24.06.2025
passed by the learned Additional Sessions Judge, Fast Track
Special Court (POCSO), Raipur, District – Raipur (C.G.) in Special
Criminal Case No. 88/2020, whereby the learned trial Court has
convicted and sentenced the appellant with a direction to run all
the sentences concurrently in the following manner :
CONVICTION SENTENCE
U/s 363 of IPC RI for 03 years and fine of Rs.500/- and
in default of payment of fine amount,
additional RI for 01 month
U/s 366 of IPC RI for 10 years and fine of Rs.500/- and
in default of payment of fine amount,
additional RI for 01 month
U/s 506 Part-II of IPC RI for 02 years and fine of Rs.500/- and
in default of payment of fine amount,
additional RI for 01 month
U/s 4(2) of POCSO RI for 20 years and fine of Rs.500/- and
Act in default of payment of fine amount,
additional RI for 01 month
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4. The prosecution’s case, in brief, is that the victim is a 16-year-old
girl. On 7/05/2019, at approximately 2:00 p.m., the accused lured
the victim onto his motorcycle, claiming he knew a good paralysis
medicine provider and that paralysis could be cured. He then took
the victim away with him and had made physical relations with
her, threatening to kill her father. The next morning at 7:00 a.m.,
the victim returned home in a taxi and told her mother about the
incident. The victim’s mother filed a report regarding the incident
at the Vidhansabha Police Station. Based on this, a First
Information Report (Ex.P-4) was registered against the accused at
the Vidhansabha Police Station under Sections 363, 376, and 506
of the Indian Penal Code (for short, ‘IPC‘) and Section 4 of the
Protection of Children from Sexual Offences Act (for short,
‘POCSO Act‘). A site map of the scene (Ex.P-8) was prepared.
With the consent of the victim and her parents, applications for
examination of the victim’s genitals (Ex.P-22) and the clothing
seized from her (Ex.P-23) were prepared and sent to the District
Hospital, Raipur. Dr. Azra Khan examined the victim and the
clothing seized from her and submitted reports (Ex.P-10 and
Ex.P-11 respectively). The victim’s statement was recorded. Her
statement under Section 164 of the CrPC was recorded before
the Judicial Magistrate First Class, as Ex.P-30. The statements of
the witnesses were recorded.
5. Regarding the age of the victim, the victim’s Dakhil Kharij Register
was seized and a seizure memo, Ex.P-3, was prepared. The
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accused was arrersted, an arrest panchnama (Ex.P-28) was
prepared. An application for a genital examination of the accused
(Ex.P-24) was prepared and sent to Community Health Centre,
Dharsiwa. Dr. Dinesh Kumar Sinha examined the accused and
submitted a report (Ex.P-14). An application (Ex.P-17) was sent to
the Tehsildar, Raipur, to prepare a site map of the crime scene.
Accordingly, Patwari Manoj Singh Thakur prepared a site map
(Ex.P-12). After examining the victim, a sealed packet containing
her underwear and two slides brought by female constable
No.646 was seized and a seizure memo (Ex.P-21) was prepared.
The seized items were sent to the State Forensic Science
Laboratory, Raipur, through the Superintendent of Police, after
which a receipt (Ex.P-26) was received. After examination, a
report (Ex.P-27) was obtained. After thorough investigation, the
charge sheet under Sections 363, 376, 506 of the IPC and
Section 4 of the POCSO Act was presented before the Court of
Additional Sessions Judge, Fast Track Special Court (POCSO),
Raipur, District – Raipur (C.G.).
6. When the charges under Sections 363, 366, 376(3), 506 Part II of
the IPC and Section 4(2) of the POCSO Act were framed and
read out to the accused and explained to him, he rejected the
charges and requested for trial.
7. On behalf of the prosecution, the victim (PW-1), Smt. Ruchi Soni
Principal (PW-2), father of the victim (PW-3), mother of the victim
(PW-4), Dr. Aajra Khan (PW-5), Manoj Singh Thakur Patwari
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(PW-6), Dr. Dinesh Kumar Sinha (PW-7), Ravi Vishwakarma
Tehsildar (PW-8), Sunder Lal Gorle Sub-Inspector (PW-9) have
been examined.
8. The accused, on being examined under Section 313 of the Code
of Criminal Procedure, pleaded not guilty and did not lead any
evidence in his defence.
9. On behalf of the prosecution, seizure memo of the victim’s
underwear Ex.P-1, statement of the victim under Section 164
CrPC Ex.P-2, seizure memo of the Dakhil Kharij Register Ex.P-3,
surrender deed Ex.P-4, attested copy of the Dakhil Kharij Register
Ex.P-5C, application written to the Principal for production of the
Dakhil Kharij Register Ex.P-6, First Information Report Ex.P-7,
spot map of the incident Ex.P-8, Panchnama Ex.P-9, examination
report of the victim Ex.P-10, test report of the victim’s clothes
Ex.P-11, Patwari map Ex.P-12, photocopy of memorandum
received from the office of Civil Surgeon District Hospital Ex.P-13,
test report of the accused Ex.P-14, memorandum regarding
identification proceedings Ex.P-15, Identification form Ex.P-16,
Patwari’s application sent to Tehsildar for Nazri map Ex.P-17,
Notice Ex.P-18, Memorandum statement Ex.P-19, Search
Panchnama Ex.P-20, property seizure memo Ex.P-21, Letter from
Police Station in-charge Vidhansabha to District Hospital, Raipur
regarding examination of private parts of the victim and providing
report after examination of clothes taken from her Ex.P-22, MLC
form has been filled for the medical examination of the victim
6
Ex.P-23, letter from the Police Station Incharge Vidhansabha to
the District Hospital, Raipur regarding examination of the private
parts of the accused Ex.P-24, letter issued from the office of the
Superintendent of Police, District Raipur, Chhattisgarh to Joint
Director, State Forensic Science Laboratory, Raipur, regarding
giving opinion after conducting chemical test of the seized articles
Ex.P-25, acknowledgement Ex.P-26, Test Report Ex.P-27, arrest
memo Ex.P-28, arrest notice Ex.P-29, Application sent to Judicial
Magistrate First Class Raipur for recording statement of the victim
under Section 164 Cr.P.C. Ex.P-30 have been submitted.
10. After appreciation of evidence available on record, the learned
trial Court has convicted and sentenced the accused/appellant as
mentioned in para 3 of this judgment. Hence, this appeal.
11. Mr. Ajay Kumar Chandra, learned counsel for the appellant
vehemently argued that the prosecution has failed to prove the
case against the appellant beyond reasonable doubt. There is no
legally admissible evidence with regard to the age of the victim
that on the date of the incident she was minor and less than 18
years of age. In absence of examination of author of the Dakhil
Kharij Register, the same cannot be taken into consideration for
determination of the age of the victim. Dakhil-kharij register is a
weak type of evidence. No any Kotwari register or ossification
report are produced by the prosecution to determine the actual
age of the victim that on the date of incident she was below 18
years of age. It is further argued by the learned counsel for the
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appellant that the father and mother of the victim have not
disclosed date of birth of the victim, as such, there is no legally
admissible and convincing evidence available on record to
establish that the victim was minor on the date of incident.
Learned counsel further argued that the victim is a consenting
party and she herself had established physical relations with the
appellant and she resides with the appellant in a small dhaba for
whole night, wherein two women, two men and 3 kids were
present, but she never tried to flee nor she had never raised any
alarm, therefore, the alleged offences of the IPC and POCSO Act
are not made out against the appellant and he is entitled for
acquittal.
12. On the other hand, Mr. Saumya Rai, learned Deputy Government
Advocate, appearing for the State opposes and contends that the
victim was minor and below 18 years of age at the time of incident
which is proved by the Dakhil Kharij Register Ex.P-5C which
contains the date of birth of the victim as 27.05.2003 and the
victim herself has stated that her date of birth is 27.05.2003. He
further submitted that though the father and mother have stated
that they do not remember the date of birth of the victim, but her
mother has specifically stated at the time of incident the victim
was 16 years old. He also submitted that the school register is
admissible piece of evidence to determine the age of the victim.
Therefore there is no legality or infirmity in the findings of the
learned trial court. The victim was abducted by the appellant and
8
kept away from the lawful guardianship. The appellant committed
forceful sexual intercourse with her, threatening to kill her father
and kept her in illegal confinement for whole night. As such, the
impugned judgment of conviction and sentence needs no
interference.
13. We have heard learned counsel for the parties, considered their
rival submissions made hereinabove and also went through the
records with utmost circumspection.
14. We have heard the learned counsel for the parties and peruse the
record with utmost circumstance.
15. The first question for consideration would be, whether the trial
Court is justified in holding that the victim was minor on the date
of incident ?
16. In order to consider the age of the victim, we have examined the
evidence available on record produced by the prosecution. The
prosecution relied upon copy of the Dakhil Kharij Register Ex.
P/5C which is sought to be proved by PW-2 Smt. Ruchi Soni, the
Headmaster of the concerned school, who has stated in her
deposition that she had brought with her the original Dakhil Kharij
Reigster maintained since 2016-2017. It contains entries from
entry 3271 to entry 3848 as of that day. This register is
maintained in my school as a matter of routine duty. She further
stated that Entry No. 3538 mentions the student’s name along
with the parents’ name, caste Satnami, resident of xxx, date of
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birth 27.05.2003, date of admission 19.06.2017, admission in
Class 9th, date of leaving school 26.07.2021, reason 12th pass. In
her cross-examination, this witness has admitted that she did not
enter the victim’s date of birth in Ex.P-05/C. The victim/student’s
date of birth was based on her Class 8 TC. This witness further
admitted that no birth certificate or separate affidavit was obtained
while recording the victim/student’s date of birth. She also
admitted that parents enroll their children in school by providing
estimated ages and admissions are also based on age estimates.
The witness voluntarily stated, “But as she is the Principal of a
Higher Secondary School, so she don’t face these problems; they
arise when a child is admitted to the first grade.” She also
admitted that she was not aware of any approximate date of birth
of the victim recorded by her parents and no seizure of the eighth
grade transfer certificate has been made from her.
17. Thus, it is clear that though the date of birth of the victim has been
stated to be written on the basis of eighth grade transfer
certificate, but no seizure of the eighth grade transfer certificate
has been made by the prosecution. Moreover, PW-3, father of the
and mother of the victim have stated that they do not know the
date of birth of the victim, though her mother has stated that at the
time of incident, the victim was aged about 16 years old. Except
dakhil kharij register (Ex.P-5C) no other evidence such as eighth
grade transfer certificate on the basis of which the same has been
10
written, birth certificate, Kotwari register or ossification report are
produced by the prosecution to prove the actual age of the victim.
18. After considering the entire facts and circumstances of the case
and evidence available on record, it emerges that the prosecution
could not produce the clinching and legally admissible evidence
with respect to the date of birth or age of the victim so as to hold
that on the date of incident she was minor and below 18 years of
age. Only on the basis of entry made in the Dakhil Kharij Register
that too in absence of eighth grade transfer certificate on the basis
of which the same has been recorded, it would not be safe to hold
that the victim was minor on the date of incident.
19. In the matter of Ravinder Singh Gorkhi Vs. State of UP, 2006
(5) SCC 584, relying upon its earlier judgment in case of Birad
Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the
Hon’ble Supreme Court has held as under :
“26. To render a document admissible under Section 35,
three conditions must be satisfied, firstly, entry that is
relied on must be one in a public or other official book,
register or record; secondly, it must be an entry stating a
fact in issue or relevant fact; and thirdly, it must be made
by a public servant in discharge of his official duty, or any
other person in performance of a duty specially enjoined
by law. An entry relating to date of birth made in the
school register is relevant and admissible under Section
35 of the Act but the entry regarding the age of a person
in a school register is of not much evidentiary value to
11prove the age of the person in the absence of the
material on which the age was recorded.”
20. In the matter of Alamelu and Another Vs. State, represented by
Inspector of Police, 2011(2) SCC 385 , 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 value to prove the age of the prosecutrix in
the absence of any material on the basis of which the age was
recorded. It was 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.
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
12represented 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.”
21. In the matter 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 facie
satisfaction of the Court. On the basis of the aforesaid
documents a presumption of juvenility may be raised.
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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
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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.”
22. Recently, in the matter 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
15determination 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 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
16which 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.”
23. Reverting to the facts of the present case and due consideration
of the prosecution evidence, we find that no any clinching and
legally admissible evidence have been brought by the prosecution
to prove the fact that the victim was minor on the date of incident
yet the trial court in the impugned judgment has held her minor,
hence, we set aside the finding given by the trail Court that on the
date of incident the victim was minor.
24. The next question for consideration would be, whether the trial
Court is justified in convicting the appellant for offence under
Section 363 of the IPC ?
25. The appellant has been convicted for offence under Section 363
of the IPC, which is punishable for kidnapping. Kidnapping has
been defined under Section 359 of the IPC. According to Section
17
359 of the IPC, kidnapping is of two kinds: kidnapping from India
and kidnapping from lawful guardianship. Section 361 of the IPC
defines kidnapping from lawful guardianship which states as
under:-
“361. Kidnapping from lawful guardianship.-Whoever
takes or entices any minor under sixteen years of age if a
male, or under eighteen years of age if a female, or any
person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind,
without the consent of such guardian, is said to kidnap
such minor or person from lawful guardianship.”
26. The object of Section 359 of the IPC is at least as much to protect
children of tender age from being abducted or seduced for
improper purposes, as for the the protection of the rights of
parents and guardians having the lawful charge or custody of
minors or insane persons. Section 361 has four ingredients:-
(1) Taking or enticing away a minor or a person of
unsound mind.
(2) Such minor must be under sixteen years of age, if a
male, or under eighteen years or age, if a female.
(3) The taking or enticing must be out of the keeping of
the lawful guardian of such minor or person of unsound
mind.
(4) Such taking or enticing must be without the consent of
such guardian.
So far as kidnapping a minor girl from lawful guardianship is
concerned, the ingredients are : (i) that the girl was under 18
years of age; (ii) such minor was in the keeping of a lawful
guardian, and (iii) the accused took or induced such person to
18
leave out of such keeping and such taking was done without the
consent of the lawful guardian.
27. The Supreme Court while considering the object of Section 361 of
the IPC in the matter of S.Varadarajan v. State of Madras 1, took
the view that 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 and held that 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 and held as under:-
“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. 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. But that part 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”.”
28. Reverting to the facts of the present case in light of ingredients of
offence under Section 361 of the IPC which is punishable under
Section 363 of the IPC & as well as principles of law laid down by
the Supreme Court in the matter of S.Varadarajan (supra), the
1 AIR 1965 SC 942
19
prosecution case itself is that the victim with the permission of her
father had gone with the appellant for buying the medicine and the
alleged act of sexual assault took place thereafter. There is no
allegation in the FIR, the statements of the victim, or the evidence
adduced before the Trial Court that the appellant removed or
enticed the victim from the lawful custody of her guardian so as to
attract the offence of kidnapping. The prosecution has not
produced any material to establish that the appellant had taken
her away from the lawful guardianship of her parents without their
consent. In the absence of any cogent evidence proving these
foundational ingredients, the conviction of the appellant under
Section 363 IPC cannot be sustained. Accordingly, this Court
holds that the prosecution has failed to prove the charge under
Section 363 IPC beyond reasonable doubt. The appellant is,
therefore, acquitted of the said charge.
29. So far as the issue of forceful sexual intercourse by the appellant
upon the victim is concerned, we have carefully perused the
statement of the victim recorded by the trial Court.
30. In this regard, the victim (PW-1) said that there is a small grocery
shop in her house, her mother goes to work, her father is a
paralytic patient, she has two younger brothers, on the date of
incident 07/05/2019, she was doing stitching work in the grocery
shop, her father was inside the house, her brothers were playing
behind the house, there is a door of the house from the side of the
grocery shop, then the accused came at 2.00 pm and asked
20
about her father, he went home to meet her father and returned
after ten to fifteen minutes. The accused said he knew a good
medicine for paralysis. At the same time, her younger brother also
came to the shop and said that his father was asking her to go
with the accused to get the medicine. The accused asked her to
go to village Chhapora to get the medicine. She sat on the
motorcycle with the accused and left for Chhapora. The victim
further stated that instead of taking her to Chhapora, the accused
took her to a side road. Then he drove her around for two to three
hours. He took her near a house and told her that her mother had
gone to a wedding. Then he took her to a deserted field and told
her that he had been taking her around on the bike for so long,
how he could left her. The accused started removing her clothes.
She also stated that when she refused, the accused said he
would cut her with a blade. After that, the accused removed her
lower clothes and forcibly had sex with her. The victim also
submitted that as it was night, they stayed at a small dhaba and
the accused said that he would drop her home the next day. The
accused dropped her home the next day in a Tata Magic vehicle.
After reaching her home, the victim informed her parents and aunt
about the incident.
31. The victim in her cross-examination has admitted that on arrival,
her father was calling him brother-in-law, according to which the
accused would seem to be her maternal uncle, she has denied
that the accused used to come to their house earlier also, she has
21
accepted that she does not know the accused before, she has
accepted that at the place where they stayed for the night, there
were two women, two men and children also, she has also
accepted that they have no knowledge about the incident, she has
also accepted that the people sitting in the magic vehicle have no
knowledge about the incident.
32. The victim’s father (PW-3) stated that he does not remember the
exact date of the incident. He is paralyzed for the last three-four
years. On the date of the incident, he was getting a massage
done by his sons at home. There is a tailoring shop adjacent to
the house, in which the victim was stitching her torn school
uniform. At the same time, the victim came to him and said that
her uncle had come. Then a boy came inside the room, who had
wrapped his face in a towel. He told him that he knew the
medicine for paralysis and would bring it for him. After that, he left.
The witness said that he did not recognize that boy. On the same
day, the victim was at home with that boy. She went with him to
Lalpur on a motorcycle in the name of buying medicine. The
victim had gone around 12.00 noon and did not return the whole
night. The next morning the victim returned home in a hired car.
On returning home, the victim told him that the boy had raped her.
33. On being declared hostile by the prosecution and being asked
leading questions, this witness has admitted that he came to know
later that the name of the boy who had taken the victim from her
house and raped her is Dhaneshwar Dhritlahare, the accused.
22
34. The victim’s mother (PW-4) stated that on the date of the incident
she had gone to work, her husband is paralyzed, he cannot walk,
the victim and her younger son were at home, there is a small
tailoring shop in the house itself, in which the victim was sitting to
stitch her uniform, at around 2.00 in the afternoon the accused
came to her house and told the victim that your father is
paralyzed, he will get her the medicine, he is like her maternal
uncle, the victim said that she will ask her father and come, the
victim asked the accused from where will you get the medicine, he
said that he will get it from Chhapora village, then he took the
victim with him on his motorcycle. When, the victim did not return
till evening, her son came to inform her, she went home and
searched for the victim nearby, when she could not find her, she
went to the police station to lodge a report, the next day the victim
came home on foot and started crying a lot, told that the accused
took her to Lutudih forest and raped her, the accused was holding
a blade at that time, he threatened that he would kill the victim
and her father as well, and took the victim to the police station,
her medical examination was done with her consent, the police
confiscated the victim’s underwear, she lodged a First Information
Report (Ex.P-7) at the Vidhansabha police station, the police
prepared a site map (Ex.P-8) of the incident site, the patwari
prepared a site map (Ex.P-9).
35. Dr. Aajra Khan (PW-5) stated that she had examined the victim on
08/05/2019 when she was brought by constable Shyamali Mishra
23
of Mahila Thana. The victim was of normal height, was fully
conscious, her physical and mental condition was normal,
secondary sexual characteristics were fully developed, there were
no external injury marks on her body, last menstrual date was
03/05/2019, the genitals of the victim were examined. There was
a half cm long scratch in the lower part, her hymen was torn, its
edge was red in colour, which was swollen and painful, two slides
of the victim’s vaginal discharge were prepared and handed over
to the concerned lady constable with the advice of chemical test,
according to her opinion, sexual intercourse had probably taken
place with the victim, for which two slides were prepared and
handed over for chemical test and after the test, report of Ex.P-10
was given.
36. On the same date, the victim’s underwear was brought for
examination in a sealed packet by the lady constable, in which
there were spots similar to semen at three places, which were
marked with red ink, which was sealed and handed over to the
concerned constable for chemical examination, after examination
he gave the report of Ex.P-11.
37. In the cross-examination, it has been admitted by Dr. Aajra Khan
(PW-5) that there were no injury marks on the body of the victim
and it has also been admitted that there were no signs of forcible
sexual intercourse on the victim at that time.
24
38. Dr. Dinesh Kumar Soni (PW-7) has testified regarding the
examination of the accused conducted by Dr. O.P. Tandon on
25/05/2020. The report Ex.P-14 has been certified, in which it was
found that there was no injury in the genitals of the accused,
secondary sexual characteristics were fully developed and pubic
hair and arm hair were fully developed and climactic reflex was
present, according to the test report there is no such fact that the
accused is incapable of having sexual intercourse.
39. As per FSL report, Ex.P-27, human sperm were found in the slide
of the vaginal discharge and the victim’s underwear. This fact also
clearly shows that the victim had sexual intercourse. Thus, the
State Forensic Science Laboratory report, Exhibit P-27, also
corroborates the victim’s statement.
40. In the matter of Jaya Mala v. Home Secretary, Govt. of Jammu
& Kashmir and others2, the Supreme Court has held that a
judicial notice can be taken that the margin of error in age
ascertained by Radiological examination is two years on either
side. Relevant para of the said judgment states as under:-
“9. Detenu was arrested and detained on Oct. 18,
1981. The report by the expert is dated May 3, 1982,
that is nearly seven months after the date of
detention. Growing in age day by day is an
involuntary process and the anatomical changes in
the structure of the body continuously occur. Even on
normal calculation, if seven months are deducted
from the approximate age opined by the expert, in
2 AIR 1982 SC 1297
25Oct., 1981 detenu was around 17 years of age,
consequently the statement made in the petition
turns out to be wholly true. However, it is notorious
and one can take judicial notice that the margin of
error in age ascertained by radiological examination
is two years on either side. Undoubtedly, therefore,
the detenu was a young school going boy. It equally
appears that there was some upheavel in the
educational institutions. This young school going boy
may be enthusiastic about the students’ rights and on
two different dates he marginally crossed the bounds
of law. It passes comprehension to believe that he
can be visited with drastic measure of preventive
detention. One cannot treat young people, may be
immature, may be even slightly misdirected, may be
a little more enthusiastic, with a sledge hammer. In
our opinion, in the facts and circumstances of this
case the detention order was wholly unwarranted
and deserved to be quashed.”
41. In Alamelu and Another Vs. State, represented by Inspector of
Police3, where the facts and circumstances were similar to that of
this case, the Supreme Court observed as under:
“51. This Court in Rameshwar v. State of Rajasthan
{AIR 1952 SC 54} declared that corroboration is not
the sine qua non for a conviction in a rape case. In the
aforesaid case, Vivian Bose, J. speaking for the Court
observed as follows:-
“The rule, which according to the cases has
hardened into one of law, is not that corroboration
is essential before there can be a conviction but
that the necessity of corroboration, as a matter of
prudence, except where the circumstances make it
safe to dispense with it, must be present to the3 2011(2) SCC 385
26mind of the judge, … The only rule of law is that this
rule of prudence must be present to the mind of the
judge or the jury as the case may be and be
understood and appreciated by him or them. There
is no rule of practice that there must, in every case,
be corroboration before a conviction can be allowed
to stand.”
52. The aforesaid proposition of law has been
reiterated by this Court in numerous judgments
subsequently. These observations leave no manner of
doubt that a conviction can be recorded on the sole,
uncorroborated testimony of a victim provided it does
not suffer from any basic infirmities or improbabilities
which render it unworthy of credence.
xxx xxx xxx
54. Even PW5, Thiru Thirunavukarasu stated that
Sekar (A1) had brought the girl with him to his house
and told him that he had married her. They had come
to see Trichy and requested a house to stay. This
witness categorically stated that he thought that they
were newly married couple. He had made them stay in
Door No. 86 of the Police Colony, which was under his
responsibility. On 10th August, 1993, the police
inspector, who arrived there at 10.00 p.m. told this
witness that Sekar (A1) had married the girl by
threatening her and “spoiled her”. The girl, according to
the prosecution, was recovered from the aforesaid
premises. Therefore, for six days, this girl was staying
with Sekar (A1). She did not raise any protest. She did
not even complain to this witness or any other
residents in the locality. Her behavior of not
complaining to anybody at any of the stages after being
allegedly abducted would be wholly unnatural.
55. Earlier also, she had many opportunities to
complain or to run away, but she made no such effort.
It is noteworthy that she made no protest on seeing
some known persons near the car, after her alleged
abduction. She did not make any complaint at the
residence of Selvi, sister of Sekar (A1) at Pudupatti.
Again, there was no complaint on seeing her relatives
allegedly assembled at the temple. Her relatives
apparently took no steps at the time when mangalsutra
was forcibly tied around her neck by Sekar (A1). No
27
one sent for police help even though a car was
available. She made no complaint when she was taken
to the house of PW5, Thiru Thirunavukarasu and
stayed at his place. Again, there was no protest when
Sekar (A1) took her to the police station on 5th day of
the alleged abduction and told at the Tiruchi Police
Station that they had already been married. The above
behaviour would not be natural for a girl who had been
compelled to marry and subjected to illicit sexual
intercourse.
56. In view of the aforesaid, we are of the considered
opinion that the prosecution has failed to prove beyond
reasonable doubt any of the offences with which the
appellants had been charged. It appears that the entire
prosecution story has been concocted for reasons best
known to the prosecution.”
42. In the matter of Tilku Alias Tilak Singh V. The State Of
Uttarakhand4, 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 prosecutrix 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
4 2025 INSC 226
28is 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”
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
29
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 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 prosecutrix, 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 prosecutrix 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.”
43. The law is well settled that in case of rape, conviction can be
maintained even on the basis of sole testimony of the victim.
30
However, there is an important caveat which is that the testimony
of the victim must inspire confidence. Even though the testimony
of the victim is not required to be corroborated, if her statement is
not believable, then the accused cannot be convicted. The
prosecution has to bring home the charges levelled against the
appellant beyond reasonable doubt, which the prosecution has
failed to do in the instant case.
44. Considering the entire evidence available on record and the
conduct of the victim, we are of the opinion that the victim was
more than 18 years of age at the time of incident, further she was
a consenting party with the appellant. Therefore, in the above
facts and circumstances of the case, offence under Sections 363,
366, 506-II of the IPC and Section 4(2) of the POCSO Act would
not be made out against the appellant.
45. For the foregoing reasons, the appeal is allowed and the
impugned judgment of conviction and order of sentence dated
24.06.2025 passed by the learned Additional Sessions Judge,
Fast Track Special Court (POCSO), Raipur, District – Raipur
(C.G.) in Special Criminal Case No. 88/2020 is set aside. The
appellant stands acquitted from all the charges. The appellant is
reported to be in jail since 25.05.2020. He be released forthwith if
not required in any other case.
46. Keeping in view the provisions of Section 437-A of the Code of
Criminal Procedure, 1973 (Now Section 481 of the Bhartiya
31
Nagarik Suraksha Sanhita, 2023), the appellant is directed
forthwith furnish a personal bond in terms of Form No.45
prescribed in the Code of Criminal Proceure of sum of Rs.25,000/-
with two reliable sureties in the like amount before the Court
concerend 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.
47. The Trial Court record alongwith the 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
Chandra
