Chattisgarh High Court
Vimal @ Bittu Sahu vs State Of Chhattisgarh on 13 July, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
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CGHC010324012024 2026:CGHC:29283-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1739 of 2024
Digitally
ROHIT signed by
KUMAR ROHIT
CHANDRA KUMAR
CHANDRA
Vimal @ Bittu Sahu S/o. Bisahu Ram Sahu Aged About 25 Years R/o.
Village - Parpodi, Police Station - Parpodi, District - Bemetara (C.G.)
(Accused)
... Appellant
versus
State of Chhattisgarh Through The S.H.O., Police Station - Gandai,
District - Khairagarh-Chhuikhadan-Gandai (C.G.) (Prosecution)
... Respondent
For Appellant : Ms. Sharmila Singhai, Senior Advocate assisted
by Mr. Siddharth Pandey, Advocate
For Respondent/ : Mr. S.S. Baghel,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.
13.07.2026
1. Today, though the matter is listed for hearing on I.A.No.01/2024,
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-1) has been duly served upon him
by the State, however, none has appeared on his behalf to
contest the present bail application or the appeal in merit and
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further considering the fact the appellant was in jail during the trial
from 01.04.2021 to 02.08.2021 and thereafter since 12.09.2024
i.e. the date of impugned judgment of conviction and order of
sentence, with the consent of learned counsel for the parties, the
appeal is heard finally.
2. Accordingly, I.A. No. 01/2024 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 12.09.2024
passed by the learned Special Additional Sessions Judge,
Khairagarh, District – Khairagarh-Chhuikhadan-Gandai (C.G.) in
Special Sessions Trial No. 16/2021, 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 7 years and fine of Rs. 2,000/-
and in default of payment of fine
amount, additional imprisonment for 02
months
U/s 366A of IPC RI for 10 years and fine of Rs. 3,000/-
and in default of payment of fine
amount, additional imprisonment for 03
months
U/s 506 Part-I of IPC RI for 1 years and fine of Rs. 1,000/-
and in default of payment of fine
amount, additional imprisonment for 01
month
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U/s 5(l)/6 of POCSO RI for 20 years and fine of Rs. 10,000/-
Act and in default of payment of fine
amount, additional imprisonment for 10
months
Section 67 of the IT RI for 3 years and fine of Rs. 5,000/-
Act and in default of payment of fine
amount, additional imprisonment for 05
months
4. Case of the prosecution in brief is that on 31.03.2021 at about
19:30 pm, the father of the victim (PW-01) appeared at the
Gandai police station and submitted a written complaint, Ex.P-01,
stating that two years ago, his daughter, the victim, aged 16 and a
half years, used to study at her maternal grandfather’s house in
village xxx. During this time, she got acquainted with the accused
Vimal Sahu alias Bittu Sahu and they started talking. On
07.03.2021 the victim was very upset. When questioned, she
tearfully stated that the accused had taken her to a mango
orchard and forcibly had sex with her, and had continued to have
sex with her several times. During this time, he also took photos
and made obscene videos without her knowledge. She has
currently stopped talking to the accused. However, when she went
to her maternal grandfather’s house on 02.03.2021, the accused
threatened to make her obscene photos and videos viral if she
stopped talking. Subsequently, 09.03.2021, and 10.03.2021, the
accused sent obscene videos from his mobile number
76105xxxxx to her personal mobile number 75871xxxxx and to
other WhatsApp groups in the village, leaving the victim
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distressed and frightened. She wants action against the accused.
On the basis of the aforesaid complaint of the father of the victim,
Inspector Shashikant Sinha (PW-13) registered a First Information
Report (Ex.P-02) under Crime No. 55/2021, Section 376 (2) (n) of
the Indian Penal Code (IPC), Sections 4 and 6 of the Protection of
Children from Sexual Offences Act, 2012 (POCSO Act) and
Section 67A of the Information Technology Act, 2000 (IT Act).
5. During the investigation, after taking consent from the victim and
her father as per Ex.P-05, the victim was sent to CHC
Chhuikhadan for examination, where she was examined by
Medical Officer Dr. Leela Ramteke (PW-05) as per Exhibit P-13.
An X-ray was conducted to ascertain the complainant’s true age,
and the report, Ex.P-14, was obtained. Subsequently, the
complainant’s vaginal slides, pubic hair, and light purple
underwear were sealed and handed over to female constable
Archana Tikka, No. 835, for FSL examination. The property was
seized before the Investigating Officer as per Ex.P-24. During the
investigation, a memorandum, Ex.P-30, was sent to the Court of
Judicial Magistrate First Class, Chhuikhadan, to record the
complainant’s statement under Section 164 of the Code of
Criminal Procedure (CrPC). The statement was recorded as per
Ex.P-12. The Investigating Officer visited the scene and prepared
a scene map, Ex.P-03, based on the witnesses’ statements. A
memorandum, Ex.P-31, was sent to the Tehsildar, Gandai,
requesting the Patwari map of the scene. Then Patwari Irfan Khan
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(PW-06) went to the spot and prepared the site map cum
panchnama Ex.P-09. Statements of the victim and witnesses
were recorded.
6. During investigation, on the production by the victim’s father, the
victim’s birth certificate and class 8th mark sheet were seized as
per seizure memo Ex.P-06 and Ex.P-07 respectively. Thereafter, a
memorandum Ex.P-26 was given to the Headmaster of her school
for production of her dakhil kharij register. Then, on production by
Headmaster Jairam Singh Meravi (PW-17), the original dakhil
kharij register Ex.P-35 was produced as per Ex.P-27 and after
retaining photocopy of the same as per Ex.P-35C, the original
dakhil kharij register was returned back to the Headmaster on the
ground that it was a public document. A memorandum of Ex.P-32
was sent for recording the statement of the victim under Section
161 CrPC, then the statement of the victim was recorded by lady
sub-inspector Priyanka Paikra (PW-16) as per Ex.P-12. Similarly,
the underwear worn by the accused at the time of the incident
was seized as per Ex.P-25 and for examination of the accused’s
anatomy and underwear, an examination sheet Ex.P-17 was filled
and sent to CHC Gandai for examination. Thereafter, when
constable No. 1057, Manishankar Verma, brought the underwear
of the accused from the medical officer and presented it, it was
seized as per Ex.P-25.
7. During investigation, the accused was taken into custody and his
confessional statement in front of witnesses was prepared as per
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original Panchnama Ex.P-19. After that, on production of the
accused, one red and black coloured pen drive of Sandisk
company and one silver and white coloured mobile phone were
seized as per seizure memo Ex.P-20 and one Samsung mobile
phone was seized from the complaint as per seizure memo Ex.P-
08. On finding sufficient evidence against the accused, he was
duly arrested in front of witnesses as per Ex.P-28 and information
regarding the same was given as per Ex.P-29 to his family
members. During the investigation, the personal computer
operator of Lok Seva Kendra Gandai, Khemlal Sahu (PW-12),
was questioned in relation to printing of obscene photographs of
the accused and the victim, certificate Ex.P-23 was obtained
under Section 65B of the Evidence Act, while the seized property
was sent to the State Forensic Science Laboratory, Raipur for
FSL, test report of retrieved data and seized mobile etc. was
obtained from Cyber Lab Inspector Vikram Dhruv (PW-18) as per
Ex.P-36 and after completing other necessary investigation, the
charge sheet was presented for trial before the Court of Special
Additional Sessions Judge, Khairagarh, District – Khairagarh-
Chhuikhadan-Gandai (C.G.) as per Ex.P-33.
8. When the charges were duly framed against the accused under
Sections 363, 366A, 376 (2) (j) (n), 376 (3), 509, 506 Part 1 of the
IPC and Sections 3/4, 5(l)/6 and 13/14 of the POCSO Act and
Section 67 of the IT Act, the accused denied having committed
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the alleged offence. The plea of the accused was recorded in his
own words.
9. So as to prove the complicity of the accused/appellant in the crime
in question, prosecution has examined as many as 18 witnesses
and exhibited 37 documents in support of its case.
10. When the accused was examined under Section 313 CrPC, he
declared himself innocent and stated that he was falsely
implicated due to enmity and gave evidence in his evidence, but
no evidence in his defence was presented.
11. 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.
12. Ms. Sharmila Singhai, learned Senior Advocate appearing on
behalf of the appellant vehemently argued that the prosecution
has failed to establish the guilt of the appellant beyond reasonable
doubt, and the findings recorded by the learned Trial Court are
contrary to the evidence available on record. A careful
appreciation of the prosecution case itself reveals several material
infirmities which create serious doubt regarding the prosecution
version. She further argued that the FIR was lodged on
31.03.2021, although the prosecution alleges that the incidents of
sexual intercourse had taken place over a period of nearly two
years and that the alleged circulation of obscene videos occurred
on 09.03.2021 and 10.03.2021. While it is well settled that delay
8
in reporting sexual offences is not by itself fatal to the prosecution,
such delay nevertheless assumes significance where the
prosecution fails to furnish a satisfactory explanation and where
the allegations relate to repeated incidents over a prolonged
period. She also argued that the medical examination of the victim
was conducted only after the lodging of the FIR, long after the
alleged occurrences, and therefore the medical evidence does not
conclusively establish the prosecution case of repeated forcible
sexual intercourse. Furthermore, the prosecution relied upon the
birth certificate, school records and radiological examination to
establish the age of the victim, but it was incumbent upon the
prosecution to prove the authenticity and evidentiary value of
these documents in accordance with law. Regarding the age of
the victim, there is a major discrepancy in the prosecution case
itself as in birth certificate (not exhibited), her date of birth is
recorded as 27.09.2004, whereas in her Class – 8 th mark-sheet
(Ex.P-7) and dakhil kharij register (Ex.P-35C), it is shown as
26.09.2005.
13. Ms. Singhai submitted that PW5 Dr. Leela Ramteke, who has
medically examined the victim has specifically stated in her
evidence that no internal or external injury was found on the
person of the victim, though she was habituated to sexual
intercourse, it was also found that there were no signs of recent
sexual intercourse. She further submitted that Narendra Kumar
Sahu (PW-10) and Leela Ram Dhurve (PW-11), the witnesses to
9
Ex.P-18 (Talashi Panchnama) have not supported the case of the
prosecution. Even the evidence of Khemlal (PW-12) also does
not give any credence to the prosecution case. It is further
submitted that the prosecution has placed substantial reliance on
electronic evidence, including the alleged obscene photographs,
videos, WhatsApp messages, mobile phones and a pen drive
allegedly recovered during the investigation. However, the
prosecution was under a legal obligation to establish the
authenticity, integrity and admissibility of such electronic evidence
by proving an unbroken chain of custody, exclusive possession of
the devices, and strict compliance with the statutory requirements
governing electronic records. Mere seizure or recovery of a
mobile phone or pen drive from the appellant does not
automatically prove either the creation, possession or
transmission of the alleged electronic material. Equally, the
allegation that obscene videos were circulated in village
WhatsApp groups has not been substantiated by reliable
independent evidence from the alleged recipients or other
persons who are stated to have received or viewed such material.
The prosecution has also failed to establish that the alleged
electronic material remained free from the possibility of tampering
or manipulation from the stage of seizure until forensic
examination. It is a settled principle of criminal jurisprudence that
electronic evidence, unless properly proved in accordance with
law, cannot form the sole basis for sustaining a conviction,
particularly where such evidence constitutes the principal
10
incriminating circumstance against the accused. The appellant is,
therefore, entitled to the benefit of such doubt, and the impugned
judgment of conviction and order of sentence deserve to be set
aside by this Hon’ble Court.
14. Per contra, Mr. S.S. Baghel, learned Government Advocate,
appearing for the State/respondent supported the impugned
judgment and submitted that the learned Trial Court has rightly
appreciated the oral, documentary and scientific evidence
available on record and has recorded a well-reasoned finding of
guilt against the appellant. It is argued that the testimony of the
victim is cogent, consistent and inspires confidence. Her version
finds substantial corroboration from her statement recorded under
Section 164 CrPC (Ex.P-12), the medical evidence, the
documentary evidence regarding her age, and the electronic
evidence collected during the course of investigation. It is further
submitted that in cases involving sexual offences, particularly
against a child, the sole testimony of the victim, if found
trustworthy and reliable, is sufficient to sustain a conviction and
does not require independent corroboration as a matter of law.
The alleged delay in lodging the FIR has been satisfactorily
explained by the prosecution. The victim was under continuous
fear and intimidation as the appellant had allegedly threatened to
make her obscene photographs and videos viral, and in fact
circulated such material through WhatsApp, thereby causing
immense trauma and social stigma. It is well settled that delay in
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reporting sexual offences cannot be viewed with the same rigour
as in ordinary criminal cases, particularly where the victim is a
minor and is under psychological pressure and fear of social
consequences. Learned State Counsel further submitted that the
prosecution has conclusively established that the victim was
below eighteen years of age on the date of the incident. The birth
certificate, school records including the Class VIII mark-sheet
(Ex.P-7) and the admission register (Ex.P-35C), coupled with the
radiological examination, clearly establish her minority. The
discrepancy pointed out by the appellant regarding the date of
birth recorded in the birth certificate is merely a typographical or
clerical error, as the consistent entries in the school records and
other documentary evidence show the victim’s date of birth as
26.09.2005, and there is no material to suggest that these public
documents were fabricated or manipulated. The evidence of PW-5
Dr. Leela Ramteke that the victim was habituated to sexual
intercourse and that no recent injuries were found does not
discredit the prosecution case, particularly when the allegation
pertains to repeated sexual assault over a considerable period
and the medical examination was conducted after the incidents.
The absence of injuries or signs of recent intercourse is neither
unusual nor sufficient to negate the otherwise reliable testimony of
the victim. It is further submitted that the electronic evidence has
been duly proved in accordance with law. The mobile phones and
pen drive were seized during investigation, sent for forensic
examination, and the Cyber Forensic Laboratory report (Ex.P-36),
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along with the certificate under Section 65B of the Indian
Evidence Act (Ex.P-23), establishes the authenticity of the
retrieved electronic data. Merely because some seizure witnesses
turned hostile does not render the prosecution case unreliable, as
it is settled law that the testimony of hostile witnesses is not to be
rejected in toto and the prosecution case can validly rest upon the
evidence of the Investigating Officer, scientific evidence and other
reliable witnesses. It is further submitted that the evidence of the
victim, the seizure of electronic devices, the forensic examination,
and the testimony of the investigating officers collectively form a
complete chain of circumstances establishing the guilt of the
appellant beyond reasonable doubt. The learned Trial Court has
rightly appreciated the evidence in its proper perspective, and no
perversity, illegality or misappreciation of evidence has been
demonstrated warranting interference by this Hon’ble Court.
15. We have heard learned counsel for the parties, considered their
rival submissions made hereinabove and also went through the
records with utmost circumspection.
16. The first question for consideration would be, whether the trial
Court is justified in convicting the appellant for offence under
Section 363 of the IPC ?
17. 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
359 of the IPC, kidnapping is of two kinds: kidnapping from India
13
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.”
18. 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
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leave out of such keeping and such taking was done without the
consent of the lawful guardian.
19. 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”.”
20. 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
15
prosecution case itself is that the appellant and the victim were
acquainted with each other while the victim was residing at her
maternal grandfather’s house for the purpose of her studies, and
the alleged acts 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 evidence
on record further indicates that the victim used to meet the
appellant during the course of their acquaintance, and the
prosecution has not produced any material to establish that the
appellant had taken her away from the lawful guardianship of her
parents or maternal grandfather without their consent. Mere proof
of the victim’s minority or the commission of any other offence
does not ipso facto constitute the offence of kidnapping under
Section 363 IPC unless the essential ingredients of “taking” or
“enticing” a minor from lawful guardianship are independently
established. 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, entitled to acquittal of the said charge. However, this
finding shall have no bearing on the consideration of the other
charges, which are required to be examined independently on the
basis of the evidence available on record.
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21. The next question for consideration would be, whether the trial
Court is justified in convicting the appellant for offence under
Section 366A of the IPC ?
22. Having considered the entire evidence on record, this Court is of
the opinion that the prosecution has failed to establish the
essential ingredients of the offence punishable under Section
366A of the IPC. To bring home a charge under Section 366A IPC,
the prosecution is required to prove that the accused induced a
girl under the age of eighteen years to go from any place or to do
any act with the intention, or with the knowledge that it was likely,
that she would be forced or seduced to illicit intercourse with
another person. Thus, the gravamen of the offence is the
inducement of a minor girl for the purpose of her illicit intercourse
with another person, and not with the accused himself.
23. In the present case, the prosecution case is that the appellant
allegedly developed a relationship with the victim and thereafter
committed sexual intercourse with her. There is neither any
allegation in the FIR nor any evidence in the statements of the
prosecution witnesses that the appellant induced or persuaded
the victim to go from any place for the purpose of her illicit
intercourse with any person other than himself. The prosecution
has also failed to adduce any evidence to establish that the
appellant intended or knew that the victim was likely to be forced
or seduced to illicit intercourse with another person, which is an
indispensable ingredient of Section 366A IPC. The evidence, even
17
if accepted in its entirety, relates only to the alleged acts
committed by the appellant himself and does not satisfy the
statutory requirements of Section 366A IPC.
24. The scope and ambit of Section 366A IPC has been
authoritatively explained by the Hon’ble Supreme Court in Shyam
and Another v. State of Maharashtra 2, wherein the Court held
that every ingredient of the offence must be strictly proved before
recording a conviction and that criminal liability cannot be
fastened unless the prosecution establishes the statutory
requirements of the provision invoked.
25. It is a settled principle of criminal jurisprudence that penal statutes
must receive strict construction and every ingredient of the
offence must be proved beyond reasonable doubt. Since the
prosecution has failed to establish that the alleged inducement, if
any, was for the purpose contemplated under Section 366A IPC,
namely, illicit intercourse with another person, no offence under
Section 366A IPC is made out against the appellant.
Consequently, the conviction of the appellant under Section 366A
IPC cannot be sustained and is liable to be set aside.
26. The next issue which requires consideration is whether the
prosecution has successfully established that the victim was
below eighteen years of age on the date of the alleged incident.
The determination of age of the victim assumes significance as
the applicability of the provisions of the POCSO Act depends
2 (1995) 5 SCC 760
18
upon the victim being a “child” within the meaning of Section 2(d)
of the POCSO Act. It is the settled position of law that the
prosecution is required to establish the age of the victim by
reliable and legally admissible evidence.
27. In the present case, the prosecution has relied upon the birth
certificate, Class VIII mark-sheet (Ex.P-7), admission and
withdrawal register (Dakhil Kharij Register) (Ex.P-35C), and the
radiological examination report (Ex.P-14) for establishing the age
of the victim. However, a perusal of the record reveals that the
birth certificate, though seized during investigation, has not been
exhibited before the Trial Court. Further, there is an apparent
discrepancy in the date of birth mentioned in the documents relied
upon by the prosecution. In the alleged birth certificate, the date of
birth is stated to be 27.09.2004, whereas in the Class VIII mark-
sheet (Ex.P-7) and the Dakhil Kharij Register (Ex.P-35C), the date
of birth is recorded as 26.09.2005. The prosecution has not
examined the authority who issued the birth certificate nor has it
brought on record any explanation regarding such discrepancy.
28. It is trite that the date of birth recorded in school records cannot
be accepted mechanically unless the source and correctness of
such entry are duly proved. In Birad Mal Singhvi v. Anand
Purohit3, the Hon’ble Supreme Court held that an entry regarding
the date of birth in a school register is not by itself sufficient proof
unless the person who made the entry or the person on whose
information such entry was made is examined and the basis of
3 (1988) 4 SCC 604
19
such entry is established. The Court emphasized that the
evidentiary value of such entries depends upon proof of the
source of information on which the entry was made.
29. At the same time, where documentary evidence relating to age is
available and is duly proved, such evidence is to be given
preference over medical opinion. In Jarnail Singh v. State of
Haryana4, the Hon’ble Supreme Court held that although Rule 12
of the Juvenile Justice (Care and Protection of Children) Rules,
2007 was framed for determining the age of a child in conflict with
law, the same principle can be applied for determining the age of
a victim of crime. The Court held that the age determination
should ordinarily proceed on the basis of the matriculation
certificate, or in its absence, the date of birth certificate from the
school first attended, and thereafter other documents as
prescribed.
30. Similarly, in Mahadeo s/o Kerba Maske v. State of
Maharashtra5, the Hon’ble Supreme Court reiterated that for
determining the age of a victim of sexual offence, the
documentary evidence relating to date of birth should be given
primacy, provided such documents are proved in accordance with
law, and medical opinion can only be relied upon in the absence
of satisfactory documentary evidence.
4 (2013) 7 SCC 263
5 (2013) 14 SCC 637
20
31. In the present case, the Class VIII mark-sheet (Ex.P-7) and the
Dakhil Kharij Register (Ex.P-35C) have been produced through
the school authorities and both documents consistently record the
date of birth of the victim as 26.09.2005. The Headmaster, who
produced the original register, has proved the relevant entries.
The radiological examination report (Ex.P-14), though not
conclusive, also does not contradict the documentary evidence
relied upon by the prosecution. The discrepancy in the
unexhibited birth certificate showing the year “2004” appears to
be a clerical mistake and cannot override the duly proved school
records.
32. Therefore, upon appreciation of the entire evidence relating to
age, this Court is of the considered opinion that the prosecution
has successfully established that the victim was below eighteen
years of age on the date of the alleged incident. The objection
raised by the learned counsel for the appellant regarding the
discrepancy in the date of birth documents does not create a
reasonable doubt regarding the minority of the victim, particularly
in view of the consistent and duly proved school records.
Accordingly, the victim is held to be a child within the meaning of
Section 2(d) of the POCSO Act.
33. The next question which arises for consideration is whether the
prosecution has been able to establish the offence punishable
under Section 506 Part-I of the IPC against the appellant ?
21
34. Section 506 IPC provides punishment for criminal intimidation as
defined under Section 503 IPC. In order to constitute an offence
of criminal intimidation, the prosecution is required to prove that
the accused threatened the victim with injury to her person,
reputation or property, or to the person or reputation of someone
in whom she was interested, with the intention of causing alarm or
with the knowledge that such threat would cause alarm to her, or
that the threat was intended to compel her to do or omit any act
which she was not legally bound to do.
35. In the present case, the prosecution has alleged that the appellant
threatened the victim by stating that he would make her
photographs viral and would kill her father and family members if
she stopped talking to him. However, except for the statement of
the victim, there is no independent and reliable evidence available
on record to establish that such threats were actually extended by
the appellant with the requisite intention of causing alarm. The
prosecution has not examined any person who had witnessed the
alleged threats or any other circumstance which could lend
assurance to the said allegation.
36. It is also significant that the alleged threats were allegedly made
during the period when the appellant and the victim were
acquainted with each other and were communicating. The
prosecution evidence does not establish that the alleged words,
even if taken on their face value, were uttered with the intention of
causing such alarm as contemplated under Section 503 IPC. A
22
mere statement expressing displeasure or an assertion made
during a personal relationship, without proof of intention to cause
alarm, would not by itself constitute criminal intimidation.
37. The Hon’ble Supreme Court in Manik Taneja and Another v.
State of Karnataka6, held that the mere utterance of words does
not constitute an offence of criminal intimidation unless the
essential ingredient of intention to cause alarm to the complainant
is established. Similarly, in Vikram Johar v. State of Uttar
Pradesh7, the Hon’ble Supreme Court reiterated that to constitute
an offence under Section 506 IPC, the threat must be such as
would cause alarm to the person threatened and the intention of
the accused in making such threat must be proved.
38. In the present case, the prosecution has failed to establish
through cogent and reliable evidence that the appellant intended
to cause alarm to the victim or that the alleged threats were of
such nature as would satisfy the requirements of Section 503 IPC.
The allegations of threat remain uncorroborated and are not
supported by any independent evidence. The mere assertion of
the victim, in the absence of supporting circumstances and
considering the overall facts of the case, does not inspire
sufficient confidence to sustain the conviction under Section 506
Part-I IPC.
6 (2015) 7 SCC 423
7 (2019) 14 SCC 207
23
39. Accordingly, this Court finds that the prosecution has failed to
prove the essential ingredients of the offence of criminal
intimidation punishable under Section 506 Part-I IPC beyond
reasonable doubt. Therefore, the conviction of the appellant under
Section 506 Part-I IPC cannot be sustained, and the appellant is
entitled to acquittal of the said charge.
40. The next question which arises for consideration is whether the
prosecution has been able to establish the offence punishable
under Section 67A of the Information Technology Act, 2000
against the appellant ?
41. Section 67A of the Information Technology Act provides
punishment for publishing or transmitting material containing
sexually explicit acts in electronic form. To establish an offence
under the said provision, the prosecution is required to prove
beyond reasonable doubt that the accused had published or
transmitted, or caused to be published or transmitted, material
containing sexually explicit acts through an electronic medium and
that such material is attributable to the accused.
42. In the present case, the prosecution has relied upon certain
electronic devices, namely, mobile phones and a pen drive, and
has alleged that obscene photographs and videos of the victim
were transmitted through WhatsApp. However, mere seizure of
electronic devices does not by itself establish the commission of
an offence under Section 67A of the IT Act. The prosecution was
required to establish, through legally admissible evidence, that the
24
alleged electronic material was actually present in the seized
devices, that the same was created or transmitted by the
appellant, and that there was an unbroken chain of custody from
the stage of seizure till forensic examination.
43. Though the prosecution has relied upon the forensic report (Ex.P-
36) and the certificate under Section 65B of the Indian Evidence
Act (Ex.P-23), the said evidence does not, by itself, establish the
authorship and transmission of the alleged material by the
appellant. The prosecution has not produced any independent
witness who had received the alleged videos through WhatsApp
or who could establish that the appellant had transmitted such
material to any person or group. There is also no clear evidence
on record establishing the source from which the alleged videos
were uploaded, forwarded or circulated, or that the appellant was
exclusively responsible for such transmission.
44. It is a settled principle of law that electronic evidence must be
proved in accordance with the requirements of law and that the
mere recovery of a device containing incriminating material is not
sufficient unless the prosecution establishes its connection with
the accused and proves that the accused was responsible for the
alleged publication or transmission. The Hon’ble Supreme Court
in Anvar P.V. v. P.K. Basheer8, held that electronic records are
required to be proved in accordance with the statutory
requirements of Section 65B of the Indian Evidence Act.
Subsequently, in Arjun Panditrao Khotkar v. Kailash
8 (2014) 10 SCC 473
25
Kushanrao Gorantyal9, the Constitution Bench reiterated that
compliance with Section 65B is mandatory for admissibility of
electronic evidence and that the authenticity and reliability of such
evidence must be established before placing reliance upon it.
45. Further, in Tomaso Bruno v. State of Uttar Pradesh 10, the
Hon’ble Supreme Court observed that electronic evidence may be
of significant importance, but the Court must ensure that such
evidence is properly proved and its evidentiary value is
established in accordance with law.
46. In the present case, the prosecution has failed to prove the
necessary link between the appellant and the alleged
transmission of the electronic material. The evidence merely
establishes the seizure and forensic examination of certain
electronic devices but does not conclusively prove that the
appellant published or transmitted the alleged sexually explicit
material.
47. Thus, on an overall appreciation of the evidence, this Court finds
that the prosecution has failed to establish the essential
ingredients of Section 67A of the IT Act beyond reasonable doubt.
The evidence available on record is insufficient to hold that the
appellant was responsible for publishing or transmitting sexually
explicit material in electronic form. Consequently, the conviction of
the appellant under Section 67A of the Information Technology Act
9 (2020) 7 SCC 1
10 (2015) 7 SCC 178
26
cannot be sustained, and the appellant is entitled to be acquitted
of the said charge.
48. The next question which arises for consideration is whether the
prosecution has been able to establish the commission of
aggravated penetrative sexual assault punishable under Section
5(l) read with Section 6 of the POCSO Act against the appellant ?
49. In the matter of Jaya Mala v. Home Secretary, Govt. of Jammu
& Kashmir and others11, 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
Oct., 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
11 AIR 1982 SC 1297
27two 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.”
50. In Alamelu and Another Vs. State, represented by Inspector of
Police12, 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 the
mind 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
12 2011(2) SCC 385
28
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
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
29
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.”
51. In the matter of Tilku Alias Tilak Singh V. The State Of
Uttarakhand13, 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
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
13 2025 INSC 226
30
as to what is it which the appellant did that
constitutes in law “taking”. There is not a word in the
deposition of Savitri from which an inference could
be drawn that she left the house of K. Natarajan at
the instance or even a suggestion of the appellant. In
fact she candidly admits that on the morning of
October 1st, she herself telephoned to the appellant
to meet her in his car at a certain place, went up to
that place and finding him waiting in the car got into
that car of her own accord. No doubt, she says that
she did not tell the appellant where to go and that it
was the appellant himself who drove the car to
Guindy and then to Mylapore and other places.
Further, Savitri has stated that she had decided to
marry the appellant. There is no suggestion that the
appellant took her to the Sub-Registrar’s office and
got the agreement of marriage registered there
(thinking that this was sufficient in law to make them
man and wife) by force or blandishments or anything
like that. On the other hand the evidence of the girl
leaves no doubt that the insistence of marriage came
from her side. The appellant, by complying with her
wishes can by no stretch of imagination be said to
have taken her out of the keeping of her lawful
guardian. After the registration of the agreement both
the appellant and Savitri lived as man and wife and
visited different places. There is no suggestion in
Savitri’s evidence, who, it may be mentioned had
attained the age of discretion and was on the verge
of attaining majority that she was made by the
appellant to accompany him by administering any
threat to her or by any blandishments. The fact of her
accompanying the appellant all along is quite
consistent with Savitri’s own desire to be the wife of
31
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.”
52. On a careful consideration of the entire evidence available on
record, this Court finds that the prosecution has failed to establish
beyond reasonable doubt that the appellant committed the alleged
acts by employing force, coercion, intimidation or against the will
of the victim. The statement of the victim itself reveals that she
was acquainted with the appellant while she was residing at her
maternal grandfather’s house for the purpose of studies and that
they were communicating with each other through mobile phones.
It is also evident from her statement that the relationship between
32
the appellant and the victim continued for some time and that they
met each other on various occasions. The prosecution evidence
does not establish that the appellant forcibly took the victim to any
place or that the alleged physical relationship was established by
use of force or threat.
53. The victim has stated that the appellant called her to a mango
orchard and promised to marry her, pursuant to which physical
relations were established between them. She has further stated
that such acts were repeated on several occasions. The conduct
of the parties, their prior acquaintance, continued communication
and repeated meetings indicate that the relationship was not a
case of forcible sexual assault but was a relationship arising out of
mutual acquaintance and willingness. The prosecution has failed
to bring on record any convincing evidence to establish that the
appellant, from the inception of the relationship, acted with an
intention to forcibly exploit the victim or obtained her physical
intimacy by applying pressure or threat.
54. It is true that the victim has subsequently alleged that the
appellant threatened her and threatened to circulate her
photographs. However, the prosecution has failed to prove these
allegations beyond reasonable doubt by producing reliable and
independent evidence. The alleged threats and circulation of
photographs have not been satisfactorily established through
independent witnesses, recipients of the alleged electronic
material or any other convincing evidence. The evidence of the
33
prosecution witnesses, particularly the witnesses relating to
seizure and electronic material, does not provide sufficient
corroboration to the allegations levelled against the appellant.
55. The Hon’ble Supreme Court in Uday v. State of Karnataka14,
while considering allegations arising out of a relationship between
the parties, held that the Court must consider the surrounding
circumstances, conduct of the parties and the manner in which
the relationship developed while appreciating whether the
prosecution has proved the offence beyond reasonable doubt.
Similarly, in Deepak Gulati v. State of Haryana15, the Hon’ble
Supreme Court observed that the Court must distinguish between
a case of forcible sexual assault and a case where the
relationship between the parties was consensual and
subsequently resulted in allegations due to failure of the
relationship.
56. In the present case, the evidence led by the prosecution, when
considered as a whole, does not inspire confidence to hold that
the appellant committed the alleged offence by force or against
the will of the victim. The possibility that the relationship between
the appellant and the victim was consensual cannot be ruled out.
It is a settled principle of criminal jurisprudence that if two views
are possible on the basis of evidence available on record, the
view favourable to the accused must be adopted.
14 (2003) 4 SCC 46
15 (2013) 7 SCC 675
34
57. The prosecution is required to prove its case beyond reasonable
doubt and cannot succeed merely on the basis of suspicion or
assumptions. In the present case, the prosecution has failed to
establish the essential ingredients of the offences charged against
the appellant. The material contradictions in the prosecution case,
absence of reliable corroboration regarding the alleged threats
and electronic transmission, and the circumstances indicating a
consensual relationship create a reasonable doubt regarding the
prosecution version.
58. Thus, on the basis of material available on record and evidence
collected by the prosecution, it cannot be held that the
prosecution has been able to bring home the offences under
Sections 363, 366A, 506 Part-I of the IPC, Section 5(l)/6 of
POCSO Act and Section 67 of the IT Act beyond reasonable
doubt as evidence brought on record is not sufficient to bring
home the offences against the appellant / accused herein.
59. As a fallout and consequence of the aforesaid legal analysis, the
criminal appeal is allowed and the impugned judgment of
conviction and order of sentence dated 12.09.2024 passed by the
learned Special Additional Sessions Judge, Khairagarh, District –
Khairagarh-Chhuikhadan-Gandai (C.G.) in Special Sessions Trial
No. 16/2021 is hereby set aside. The accused / appellant is
acquitted of the said charges levelled against him. He is in jail
since 12.09.2024. He shall be set at liberty forthwith if no longer
required in any other criminal case.
35
60. Keeping in view the provisions of Section 437-A of the Code of
Criminal Procedure, 1973 (Now Section 481 of the Bhartiya
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.
61. Let a copy of this judgment and the original record be transmitted
to the trial court concerned forthwith for necessary information
and compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Chandra
