Chattisgarh High Court
Sanjay Jangade vs State Of Chhattisgarh on 15 July, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
CGHC010343862025 2026:CGHC:29923-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SAGRIKA
AGRAWAL CRA No. 1609 of 2025
Digitally signed
by SAGRIKA
AGRAWAL
1 - Sanjay Jangade S/o Late Jethu Ram Jangade Aged About 25 Years R/o
Date: 2026.07.21
10:42:09 +0530 Kotwar Mohalla Kurda Police Station Malkharoda, District - Sakti (C.G.)
2 - Rajendra Jangade S/o Radheshyam Jangade Aged About 38 Years R/o
Kurda Mahamaya Para Police Station Malkharoda, District - Sakti (C.G.)
3 - Nirmala @ Neha Jangade S/o Rajendra Jangade Aged About 27 Years
R/o Kurda Mahamaya Para Police Station Malkharoda, District - Sakti (C.G.)
... appellant(s)
versus
1 - State Of Chhattisgarh Through Police Station Dabhara, District - Sakti
(C.G.)
... Respondent(s)
(cause title taken from CIS)
For appellant (s) : Mr. Ishwar Jaiswal, Advocate
For Respondent(s) : Mr. Jitendra Shrivastava, Govt. Advocate
Hon’ble Mr. Ramesh Sinha, Chief Justice
Hon’ble Mr. Ravindra Kumar Agrawal, Judge
Order on Board
Per Ramesh Sinha, Chief Justice
15.07.2026
1. Heard Mr. Ishwar Jaiswal, learned counsel for the appellants and Mr.
Jitendra Shrivastava, Govt. Advocate for the Respondent/ State.
2. Vide order dated 25.09.2025, this Court directed for issuance of notice
to PW-1, mother of the victim/ complainant regarding pendency of the
2
appeal as well as application for suspension of sentence and grant of
bail.
3. Learned counsel for the State would submit that the notice has been
served to PW/1 (mother of the victim). Despite the service of notice, no
one appears in the case to make submission on their behalf, therefore,
we proceed to hear the matter.
4. Today, the matter has been listed for consideration on I.A. No. 01 which
is an application for suspension of sentence and grant of bail.
Considering the fact that the appellant is in jail since 15.07.2024, with
the consent of the parties, the appeal itself has been heard finally.
Accordingly, I.A No. 01 is disposed of.
5. The present criminal appeal has been filed under Section 415(2) of
Bhartiya Nagrik Suraksha Sanhita, 2023 against the impugned
judgment of conviction and sentence dated 25.07.2025 passed by
learned Addl. Session Judge (FTC) Sakti, Dist- Janjgir- Champa
(C.G.) in Special Criminal (POCSO) Case No. 11/2024 whereby the
appellants have been convicted and sentenced as below:-
S.No Conviction Sentence
1. Under Section 363 of IPC R.I. for 03 years and fine of Rs. 2000/- in
(all the appellants) default of fine additional R.I. for 2 months.
2. Under Section 366 of IPC R.I. for 5 years and fine of Rs. 3000/- in
(all the appellants) default of payment of fine additional R.I.
for 3 months.
3. Under Section 06 of R.I. for 20 years and fine of Rs. 5000/-, in
Protection of Children default of payment of fine further R.I. for
from Sexual Offences Act, 06 months
2012.
(for appellant No. 1) (All the sentences shall run concurrently)
3
6. Brief facts of the case are that on 07.03.2024, the mother of the victim
lodged a written complaint at Police Station Dabhara alleging that on
05.03.2024, her minor daughter, who had gone to the Anganwadi
Centre for cooking work, did not return home. Despite searching for her
at the houses of relatives and neighbours, her whereabouts could not
be ascertained. On the basis of the said report, the Police registered a
case under Section 363 of the IPC against an unknown person. During
the course of investigation, the victim was recovered on 22.03.2024
and her statement under Section 164 of the Cr.P.C. was recorded,
wherein she stated that she had voluntarily accompanied appellant
No.1 Sanjay Jangade, that they had solemnized marriage, and that
appellant No.1 had established sexual relations with her, while
appellant Nos.2 and 3 had facilitated the commission of the alleged
offence. Consequently, offences under Sections 366 and 376(2)(n)/34
of the IPC and Sections 4 and 6 of the Protection of Children from
Sexual Offences Act, 2012 (in short, “POCSO Act“) were added. During
investigation, the victim was medically examined and her age was
determined on the basis of the material collected by the Investigating
Agency. Statements of the witnesses under Section 161 of the Cr.P.C.
and the statement of the victim under Section 164 of the Cr.P.C. were
recorded. After completion of the investigation, the Police filed a
charge-sheet against the appellants for the offences under Sections
363, 366 and 376(2)(n) of the IPC and Section 6 of the POCSO Act
before the learned trial Court.
7. The learned trial Court framed charges against appellant No.1 Sanjay
Jangade for the offences punishable under Sections 363, 366 and
4
376(2)(n) of the Indian Penal Code and Section 6 of the Protection of
Children from Sexual Offences Act, 2012. It also framed charges
against appellant Nos.2 Rajendra Jangade and 3 Nirmala @ Neha
Jangade for the offences punishable under Sections 363 read with
Sections 109 and 114, 366 read with Sections 109 and 114, and 376(2)
(n) read with Sections 109 and 114 of the Indian Penal Code and
Section 6/17 of the Protection of Children from Sexual Offences Act,
2012. The appellants abjured their guilt and claimed trial.
8. In order to prove the charges, the prosecution examined as many as 12
witnesses and exhibited several documents in support of its case. The
statements of the appellants under Section 313 of the Code of Criminal
Procedure were also recorded, wherein they denied all the
incriminating circumstances appearing against them, pleaded
innocence, and stated that they had been falsely implicated in the
case.
9. After appreciation of the oral as well as documentary evidence
adduced by the prosecution, the learned trial Court found appellant
No.1 guilty of the offences punishable under Sections 363 and 366 of
the Indian Penal Code and Section 6 of the Protection of Children from
Sexual Offences Act, 2012, and appellant Nos.2 and 3 guilty of the
offences punishable under Sections 363 read with Sections 109 and
114 and 366 read with Sections 109 and 114 of the Indian Penal Code.
Consequently, the learned trial Court convicted and sentenced the
appellants as mentioned in the earlier paragraph of this judgment.
Hence, this appeal.
5
10.Learned counsel for the appellants would submit that the appellants
are innocent and have been falsely implicated in the case. He would
contend that the prosecution has failed to establish its case beyond
reasonable doubt and that the learned trial Court has erred in holding
the victim to be a minor solely on the basis of the school records,
without any reliable proof regarding the source of the date of birth
recorded therein. It is argued that the Headmaster admitted in his
cross-examination that he was not aware of the basis on which the
date of birth of the victim was entered in the school records, and no
birth certificate issued by the competent authority or medical age
determination test was produced to conclusively establish her age.
Learned counsel would further submit that the evidence on record
clearly demonstrates that the victim voluntarily accompanied appellant
No.1 Sanjay Jangade, solemnized marriage with him, and stayed with
him of her own free will. It is further argued that there is no medical
evidence suggestive of forcible sexual intercourse and the victim
herself admitted her love relationship with appellant No.1. So far as
appellant Nos.2 and 3 are concerned, it is submitted that there is no
cogent evidence to establish that they had either abducted the victim or
abetted the commission of any offence, and they have been implicated
merely because they are relatives of appellant No.1. It is, therefore,
contended that the prosecution has failed to prove the charges beyond
reasonable doubt and the appellants are entitled to acquittal.
11. On the other hand, learned State counsel supported the impugned
judgment and submitted that the prosecution has successfully
established its case beyond reasonable doubt by adducing cogent oral
as well as documentary evidence. It is contended that the prosecution
6
has duly proved that on the date of the incident, the victim was below
18 years of age. For determination of her age, reliance has been
placed upon the school admission register, admission certificate and
Class 10th marksheet, which were duly proved through the Headmaster
of the concerned school. As per the school records, the date of birth of
the victim is 28.11.2006, establishing that she was a minor on the date
of occurrence. It is further submitted that the testimony of the victim,
duly corroborated by her statements under Sections 161 and 164 of
the Cr.P.C., as well as the medical and other documentary evidence,
clearly establishes that appellant No.1 Sanjay Jangade had taken the
victim away from the lawful guardianship of her parents and
established physical relations with her. Since the victim was a minor,
her consent, if any, is wholly immaterial in the eyes of law, and the acts
committed by appellant No.1 squarely fall within the ambit of the
offences punishable under Sections 363 and 366 of the Indian Penal
Code and Section 6 of the Protection of Children from Sexual Offences
Act, 2012. It is, therefore, submitted that the learned trial Court has
rightly appreciated the evidence on record and recorded the conviction,
which warrants no interference by this Court.
12.We have heard learned counsel for the parties and perused the
material annexed with the appeal.
13.The first question arose in the case as to whether the victim was minor
and less than 18 years of age on the date of incident or not.
14.The prosecution has mainly relied upon the document (Ex-P/39 C)
which is the school register of the victim, which is sought to be proved
by PW/12. PW/12 is the Headmaster of the school, he stated in his
evidence that the Police has seized the school register vide seizure
7
memo (Ex-P/11) with respect to the age and date of birth of the victim
and after retaining its attested true copy, the original register was
returned back to the school which he brought today with him. The said
school register is Ex-P/39 and its attested true copy is (Ex-P/39 C). As
per the school register, the date of birth of the victim is 28.11.2006. He
also issued a certificate (Ex-D/41) with respect to her date of birth. In
cross-examination, he admitted that he is not the author of the school
register. He also did not brought the original Tatimma Register with him
and even he has not made any entry in Tatimma register. He could not
tell as to on what basis the date of birth of the victim is recorded in the
school register. He also admitted that who has taken the victim in the
school for her admission, he could not tell. From the evidence of this
witness, it is quite vivid that he neither the author of the school register
nor the basis on which the date of birth of the victim is recorded in the
school register has been produced by the prosecution. The another
piece of evidence with respect to age and date of birth of the victim is
her Class 10th mark-sheet which is Article-1, which has been proved by
the victim (PW/2). In cross-examination, she stated that she could not
know as to whether her birth certificate has been prepared or not. She
admitted that she had not seen her birth certificate. She could not know
the date of birth of her brother and sisters. Her date of birth has got
recorded in the school by her parents.
15.The Hon’ble Supreme Court has considered the admissibility and
evidentiary value of the school register with respect to the age of the
victim. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu
and Another Vs. State, represented by Inspector of Police, 2011(2)
SCC 385, the Hon’ble Supreme Court has observed as under:
8
“40.Undoubtedly, the transfer certificate, Ex.P16 indicates
that the girl’s date of birth was 15th June, 1977. Therefore,
even according to the aforesaid certificate, she would be
above 16 years of age (16 years 1 month and 16 days) on
the date of the alleged incident, i.e., 31st July, 1993. The
transfer certificate has been issued by a Government
School and has been duly signed by the Headmaster.
Therefore, it would be admissible in evidence under
Section 35 of the Indian Evidence Act. However, the
admissibility of such a document would be of not much
evidentiary value to prove the age of the girl in the
absence of the material on the basis of which the age was
recorded. The date of birth mentioned in the transfer
certificate would have no evidentiary value unless the
person, who made the entry or who gave the date of
birth is examined.
42. Considering the manner in which the facts recorded in
a document may be proved, this Court in the case of Birad
Mal Singhvi Vs. Anand Purohit1, observed as follows:-
“The date of birth mentioned in the scholars’ register
has no evidentiary value unless the person who
made the entry or who gave the date of birth is
examined….Merely because the documents Exs. 8,
9, 10, 11, and 12 were proved, it does not mean that
the contents of documents were also proved. Mere
proof of the documents Exs. 8, 9, 10, 11 and 12
would not tantamount to proof of all the contents or
the correctness of date of birth stated in the
documents. Since the truth of the fact, namely, the
date of birth of Hukmi Chand and Suraj Prakash
Joshi was in issue, mere proof of the documents as
produced by the aforesaid two witnesses does not
furnish evidence of the truth of the facts or contents
of the documents. The truth or otherwise of the facts
in issue, namely, the date of birth of the two
candidates as mentioned in the documents could be
proved by admissible evidence i.e. by the evidence
of those persons who could vouchsafe for the truth
of the facts in issue. No evidence of any such kind
was produced by the respondent to prove the truth
of the facts, namely, the date of birth of Hukmi
Chand and of Suraj Prakash Joshi. In the
circumstances the dates of birth as mentioned in the
aforesaid documents 1988 (Supp) SCC 604 have no
9probative value and the dates of birth as mentioned
therein could not be accepted.”
43. The same proposition of law is reiterated by this Court
in the case of Narbada Devi Gupta Vs. Birendra Kumar
Jaiswal2, where this Court observed as follows:-
“The legal position is not in dispute that mere
production and marking of a document as
exhibit by the court cannot be held to be a due
proof of its contents. Its execution has to be
proved by admissible evidence, that is, by the
“evidence of those persons who can vouchsafe
for the truth of the facts in issue”.”
44. In our opinion, the aforesaid burden of proof has
not been discharged by the prosecution. The father
says nothing about the transfer certificate in his
evidence. The Headmaster has not been examined at
all. Therefore, the entry in the transfer certificate can
not be relied upon to definitely fix the age of the girl.
48. We may further notice that even with reference to
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
10standard. No different standard can be applied
in case of an accused as in a case of
abduction or rape, or similar offence where the
victim or the victim although might have
consented with the accused, if on the
basis of the entries made in the register
maintained by the school, a judgment of
conviction is recorded,the accused would be
deprived of his constitutional right under Article
21 of the Constitution, as in that case the
accused may unjustly be convicted.”
16. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &
Others, 2022 (8) SCC 602, while considering various judgments, the
Hon’ble Supreme Court has observed in para 33 as under:
“33. What emerges on a cumulative consideration of
the aforesaid catena of judgments is as follows:
33.2.2. If an application is filed before the
Court claiming juvenility, the provision of sub-
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.
11
33.5. That the procedure of an inquiry by a
Court is not the same thing as declaring the
age of the person as a juvenile sought before
the JJ Board when the case is pending for trial
before the concerned criminal court. In case of
an inquiry, the Court records a prima facie
conclusion but when there is a determination of
age as per sub-section (2) of section 94 of
2015 Act, declaration is made on the basis of
evidence. Also the age recorded by the JJ
Board shall be deemed to be the true age of
the person brought before it. Thus, the
standard of proof in an inquiry is different from
that required in a proceeding where the
determination and declaration of the age of a
person has to be made on the basis of
evidence scrutinised and accepted only if
worthy of such acceptance.
33.6. That it is neither feasible nor desirable to
lay down an abstract formula to determine the
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
12
documents.
33.10. Any document which is in consonance
with public documents, such as matriculation
certificate, could be accepted by the Court or
the JJ Board provided such public document is
credible and authentic as per the provisions of
the Indian Evidence Act viz., section 35 and
other provisions.
33.11. Ossification Test cannot be the sole
criterion for age determination and a mechanical
view regarding the age of a person cannot be
adopted solely on the basis of medical opinion
by radiological examination. Such evidence is
not conclusive evidence but only a very useful
guiding factor to be considered in the absence
of documents mentioned in Section 94(2) of the
JJ Act, 2015.”
17. In case of P. Yuvaprakash Vs. State represented by Inspector of
Police, 2023 (SCC Online) SC 846, Hon’ble Supreme Court has held
in para 14 to 17 as under :
“14. Section 94 (2)(iii) of the JJ Act clearly indicates
that the date of birth certificate from the school or
matriculation or equivalent certificate by the
concerned examination board has to be firstly
preferred in the absence of which the birth certificate
issued by the Corporation or Municipal Authority or
Panchayat and it is only thereafter in the absence of
these such documents the age is to be determined
through “an ossification test” or “any other latest
medical age determination test” conducted on the
orders of the concerned authority, i.e. Committee or
Board or Court. In the present case, concededly,
only a transfer certificate and not the date of birth
certificate or matriculation or equivalent certificate
was considered. Ex. C1, i.e., the school transfer
certificate showed the date of birth of the victim as
11.07.1997. Significantly, the transfer certificate was
produced not by the prosecution but instead by the
court summoned witness, i.e., CW-1. The burden is
always upon the prosecution to establish what it
alleges; therefore, the prosecution could not have
been fallen back upon a document which it had
never relied upon. Furthermore, DW-3, the
concerned Revenue Official (Deputy Tahsildar) had
13stated on oath that the records for the year 1997 in
respect to the births and deaths were missing. Since
it did not answer to the description of any class of
documents mentioned in Section 94(2)(i) as it was a
mere transfer certificate, Ex C-1 could not have been
relied upon to hold that M was below 18 years at the
time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs.
State of Uttar Pradesh & Ors. this court outlined the
procedure to be followed in cases where age
determination is required. The court was dealing with
Rule 12 of the erstwhile Juvenile Justice Rules
(which is in pari materia) with Section 94 of the JJ
Act, and held as follows:
“20. Rule 12 of the JJ Rules, 2007 deals with
the procedure to be followed in determination of
age. The juvenility of a person in conflict with
law had to be decided prima facie on the basis
of physical appearance, or documents, if
available. But an inquiry into the determination
of age by the Court or the JJ Board was by
seeking evidence by obtaining: (i) the
matriculation or equivalent certificates, if
available and in the absence whereof; (ii) the
date of birth certificate from the school (other
than a play school) first attended; and in the
absence whereof; (iii) the birth certificate given
by a corporation or a municipal authority or a
panchayat. Only in the absence of either (i), (ii)
and (iii) above, the medical opinion could be
sought from a duly constituted Medical Board to
declare the age of the juvenile or child. It was
also provided that while determination was
being made, benefit could be given to the child
or juvenile by considering the age on lower side
within the margin of one year.”
16. Speaking about provisions of the Juvenile Justice
Act, especially the various options in Section 94 (2)
of the JJ Act, this court held in Sanjeev Kumar Gupta
vs. The State of Uttar Pradesh & Ors that:
“Clause (i) of Section 94 (2) places the date of
birth certificate from the school and the
matriculation or equivalent certificate from the
2021 (12) SCR 502 [2019] 9 SCR 735
14concerned examination board in the same
category (namely (i) above). In the absence
thereof category (ii) provides for obtaining the
birth certificate of the corporation, municipal
authority or panchayat. It is only in the absence
of (i) and (ii) that age determination by means
of medical analysis is provided. Section 94(2)
(a)(i) indicates a significant change over the
provisions which were contained in Rule 12(3)
(a) of the Rules of 2007 made under the Act of
2000. Under Rule 12(3)(a) (i) the matriculation
or equivalent certificate was given precedence
and it was only in the event of the certificate
not being available that the date of birth
certificate fromthe school first attended, could
be obtained. In Section 94(2)(i) both the date of
birth certificate from the school as well as the
matriculation or equivalent certificate are
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.”
18. Reverting to the facts of the present case, though the high school
mark-sheet of the victim has been seized by the Police, however, the
said high school mark-sheet is based on school record (Ex-P/39C) and
the (Ex-P/39C) have not been proved by the prosecution in accordance
with law by examining its author or producing the relevant material on
the basis on which her date of birth was recorded in the school register.
Therefore, the school register alone cannot be determined the age of
the victim.
19.PW/1 is the mother of the victim, she stated that her daughter is aged
about 13 years. She did not disclose about any date of her birth. In
cross-examination, she stated that her all children have been born in
15
the house and she has got recorded their date of birth on assumption.
She also admitted that she disclosed the age of the victim on
assumption.
20.PW/10 is the elder sister of the victim, she stated that victim is
presently aged about 17 years. In cross-examination, she herself has
unable to disclose her date of birth and she stated that she is aged
about 30 years. The victim is her youngest sister. All of her brother and
sisters are in the difference of age of 1-1 and ½ years.
21.From the aforesaid evidence, it is quite vivid that there is no cogent
evidence with respect to the age of the victim that she was minor and
less than 18 years of age when school record has not been proved in
accordance with law, her mother has stated that victim is 13 years of
age at present, her sister is stated that the victim is 17 years of age at
present and there is no other documentary evidence like Ossification
test report or any birth certificate, it cannot be said that the prosecution
has proved the age of the victim that she was minor on the date of
incident. Yet, the learned trial Court has held her minor.
22. So far as, the offence of kidnapping and rape are concerned, they
again examined the evidence of the prosecution witnesses.
23. The victim (PW/2) has stated in her evidence that on the date of
incident, the appellant called her through mobile phone near canal and
when she had gone there, he took her by his motor-cycle towards Sakti
railway station, where the accused Rajendra Jangade and his wife
Neha present. Her mobile phone was being taken by the appellant
Sanjay and switched it off. All of them took her towards Jammu by train.
At Jammu, the accused persons kept her in a brick clean and the
appellant Sanjay engaged her in as labourer. The appellant made
16
physical relation with her after consuming liquor repeatedly. The
appellant Sanjay was also used to talk to his wife but she was not in
knowledge that he is having with his wife. When the accused persons
taking her back from Jammu by train, they tried to sale her to another
lady who met them in the train. They changed the train on the way and
by another train, they were coming to Kharsia. The other accused
Rajendra and Neha debordered the train at Sakti railway station and
asked the appellant Sanjay to drop her at railway station Kharsia. She
and accused Sanjay deboarded at Khasrsiya railway station, then
appellant Sanjay left her there and fled away. She started crying there
and then the persons who present there asked her about reason of her
crying, then she disclosed that about the incident. Thereafter, they
called her family members and then she came to her parents’ house.
She disclosed about the incident to her parents and then she was
being taken to Police Station, where the recovery panchanama (Ex-P/3)
was prepared. She was sent for her medical examination. At this stage,
she has been declared hostile on some points then she was being
cross-examined by prosecution. She stated that the Police has
recorded her statement. She admitted that she came to know at Jammu
that the appellant Sanjay has already married and having children from
his marriage. The appellant Sanjay took her to Jammu on 05.03.2024
and engaged her as a labourer in brick clean. She also admitted that
she gave her mobile number to the sister-in-law of the appellant Sanjay.
In the commission of the offence, his brother Rajendra and his sister-in-
law Neha assisted him. She also admitted that after applying vermilion
on her head, the appellant Sanjay made physical relation with her.
17
24. In cross-examination, she admitted that she had a telephonic
conversation with the appellant Sanjay daily. She accompanied him on
his motor-cycle and had gone through Kharsiya road high-way. She had
not made any complaint to the Police through mobile phone or dial 112.
She also had not made any report to railway police at Sakti railway
station. She also admitted that there were number of persons in the
railway station and she met various persons there. She also admitted
that she has not made any complaint to anyone that the appellant
Sanjay is kidnapping her. She travelled along with the appellant Sanjay
for about two days to reach at Jammu. Up to Jammu, number of railway
stations were crossed but she neither made any complaint to any of the
police persons nor have made any complaint to any co-passengers.
Even, she has not made any complaint to the contractor of brick clean.
The house where she and the appellant Sanjay were residing was
separate than the house of co-accused Rajendra and Neha. She further
admitted that she visited the market of Jammu to purchase the grocery
items along with the appellant Sanjay but she has not made any
complaint to anyone that the appellant Sanjay kidnapped her. She also
admitted that on the day when she had gone to Jammu along with the
appellant Sanjay, the accused Shaukhi Lal was also there with them,
but she had not lodged any complaint against him. She also admitted
that when she came back to Kharsiya railway station, she has not
made any complaint to any Police Station there also. To brought her
back to her village, the accused Rajendra and Neha had taken money
from the owner of brick clean. In her further cross-examination, she
stated that when she left her house, she was having her mobile phone,
she left her house without informing her family members and without
18
any difficulty she reached there at Jammu. She stayed at Jammu for
about 15 days but she has not informed her parents through mobile
phone. They used to talk with each other daily and having long
conversation of about one an hour. She came to know at Jammu that
appellant Sanjay has already married. She further admitted that if the
appellant Sanjay was not already married, she would not have lodged
any report against him.
25. From the evidence of the victim, it clearly reveals that she travelled up
to Jammu along with the appellant Sanjay without raising any alarm or
without making any complaint to anyone on the way. Even, throughout
the journey, she has not made any complaint to any co-passenger or
the police station at railway station about the conduct of the appellant
Sanjay. She stayed there for about 15 days but have not raised any
complaint that the appellant kidnapped her. Even, when the appellant
making physical relation with her, she has not raised any alarm and has
not protested and the conduct of the victim clearly shows that she was
a consenting party in eloping with the appellant Sanjay, making physical
relation consensually. She herself stated that she came to know about
the fact that the appellant Sanjay has already married at Jammu.
26.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
19purposes 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
inducement held out by the accused person or an active
participation by him in the formation of the intention of the
minor to leave the house of the guardian.
10. It would, however, be sufficient if the prosecution
establishes that though immediately prior to the minor
leaving the father’s protection no active part was played by
the accused, he had at some earlier stage solicited or
persuaded the minor to do so. In our, opinion if evidence to
establish one of those things is lacking it would not be
legitimate to infer that the accused is guilty of taking the
minor out of the keeping of the lawful guardian merely
because after she has actually left her guardian’s house or a
house where her guardian had kept her, joined the accused
and the accused helped her in her design not to return to
her guardian’s house by taking her along with him from
place to place. No doubt, the part played by the accused
could be regarded as facilitating the fulfillment of the
intention of the girl. That part, in our opinion, falls short of an
inducement to the minor to slip out of the keeping of her
lawful guardian and is, therefore, not tantamount to “taking”.
27. 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.
20
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”
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
21
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 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.”
28.Since, the victim was not proved to be minor and from her evidence, it
is established that she herself on her own will accompanied the
appellant Sanjay up to Jammu and engaged in making physical
relation without any objection or protest, it can be said that the she was
the consenting party in eloping with the appellant and making physical
relation with him.
29.From the evidence of (PW/7), who medically examined the the victim, it
no injuries were notice on the body of the victim at the time of
examination. The doctor has proved her MLC report (Ex-P/5). There
was no sign of any protest or physical violence have been noticed on
her body, which also a circumstance in favour of the appellant Sanjay.
22
30.PW/1, who is the mother of the victim, she stated in her evidence that
her daughter was being taken by co-accused Nirmala @ Neha and her
brother in law Rajendra. A day before the date of incident, all the three
accused persons came to her house and she inquired about them. On
the next day, when her daughter went missing, she lodged missing
report (Ex-P/1). After about 15 days, her relative took the victim to her
house and when she asked about her, she disclosed the entire incident
that the appellants took her to Jammu, employed her in brick clean and
the appellant Sanjay made physical relation with her. When her
daughter asked him to send her back, then the accused persons taking
her back towards their village. However, on the way, the accused
persons tried to sale the victim to another lady who was the co-
passenger in the train. They came back to Kharsiya railway station and
then, the appellant Sanjay left her alone and fled away. Thereafter, her
daughter made a telephonic call to her elder daughter and then she
was brought back to her house. In cross-examination, various
discrepancies have been taken out by the defence from her 161 CrPC
statement, which was omission in the said statement even otherwise
this witness is deposed on the basis of information given by the victim.
In her further cross-examination, she admitted that she also knew the
appellant and he used to come to her house. She also knew that there
was conversation between the appellant Sanjay and her daughter. She
further admitted that there was love affair between the appellant Sanjay
and victim and when they came to know that the victim was with the
appellant Sanjay and Sanjay is already married, they sent Rs. 1000/- to
her daughter for coming back to her village. She further admitted that if
23
the appellant Sanjay would not have married earlier, they would have
not lodged any report against him.
31.From these evidences, it cannot be said that the victim was kidnapped
by the appellant Sanjay and forcefully made physical relation with her
rather the evidence clearly suggests that the victim on her own will left
her house and eloped with the appellant and both of them were
travelled up to Jammu and stayed there for some time and on the
request of the victim, she was brought back to her village.
32.PW/10, who is the elder sister of the victim, she stated in her evidence
that the accused Nirmala @ Neha developed friendship with her sister
and shared with other accused persons and all of them had telephonic
conversation with her. All of three accused persons took her sister to
Jammu and confined her there. After about 15 days when the mobile
phone of her sister switched on, she had conversation with her sister
and then she advised her to come back to her village. She advised her
sister to came back and they will get them married. After about two
months, they came back however, the appellant left her sister to
Kharsiya railway station alone and fled away. Her sister informed her
in mobile phone and then she was brought back. Her sister has also
disclosed about the incident which she suffered up to the Jammu. In
cross-examination, various discrepancies have been taken out by the
defence in her police statement (Ex-D/3) and she is also a hearsay
witness and deposed on the basis of the information disclosed by the
victim.
33.From the aforesaid evidence, the prosecution has failed to prove by
leading cogent and clinching evidence that the victim was kidnapped
24
by the appellant Sanjay and all the three accused persons, took her
towards Jammu and appellant Sanjay had committed rape upon her.
34.The version of the victim commands great respect and acceptability,
but if there are some circumstances which cast some doubt in the mind
of the court on the veracity of the victim’s evidence, then it will not be
safe to rely on the said version of the victim. There is contradiction and
omissions in the statement of the victim and her parents. The law is
well settled that in case of rape, conviction can be maintained even on
the basis of sole testimony of the victim. However, there is an important
caveat which is that the testimony of the victim must inspire
confidence. Even though the testimony of the victim is not required to
be corroborated, if her statement is not believable, then the accused
cannot be convicted. The prosecution has to bring home the charges
levelled against the appellant beyond any reasonable doubt, which the
prosecution has failed to do in the instant case.
35.In view of the for going reasons, we do not find any sufficient ground to
upheld the conviction of the appellants for the alleged offence of
kidnapping and rape upon the victim.
36.Accordingly, the appeal filed by the appellants are hereby Allowed.
The impugned judgment of conviction and sentences passed against
the appellant are set aside. The appellants are acquitted from all the
charges.
37.The appellant Sanjay is reported to be in jail since 29/03/2024 and the
appellants Rajendra Jangade and Nirmala @ Neha Jangade are
reported to be in jail since 10.04.2024. They shall be released forthwith
if not required in any other case.
25
38.Keeping in view the provisions of Section 481 of Bharatiya Nagrik
Suraksha Sanhita, 2023, the appellants are directed to furnish a
personal bond for a sum of Rs. 25,000/- each 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
appellants, on receipt of notice thereof, shall appear before the Hon’ble
Supreme Court.
39.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
