1

CGHC010294772025 2026:CGHC:33816-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 1366 of 2025

Dhaneshwar Kumar Dhritlahare S/o Ashok Kumar Dhritlahare, Aged

About 20 Years R/o Village Lutudeeh, Nala Kinare, Police Station Palari,

District Balodabazar Bhatapara Chhattisgarh

... Appellant

versus

State of Chhattisgarh Through Police of Police Station Vidhansabha,

District Raipur Chhattisgarh

... Respondent

For Appellant :Mr. Ajay Kumar Chandra, Advocate

For Respondent/

State

:Mr. Saumya Rai, Dy. Government Advocate

Hon'ble Shri Ramesh Sinha, Chief Justice

Hon'ble S hri Ravindra Kumar Agrawal, Judge

JUDGMENT ON BOARD

Per Ramesh Sinha, C.J .

04.08.2026

1.Today, though the matter is listed for hearing on I.A.No.01/2025,

which is an application for suspension of sentence and grant of

bail to the appellant, but considering the fact that the notice issued

to the father of the victim (PW-3) has been duly served upon him

2

by the State, however, none has appeared on his behalf to

contest the present bail application or the appeal in merit and

further considering the fact the appellant is in jail since

25.05.2020, with the consent of learned counsel for the parties,

the appeal is heard finally.

2.Accordingly, I.A. No. 01/2025 stands disposed of.

3.This criminal appeal under Section 415(2) of the Bhartiya Nagarik

Suraksha Sanhita, 2023 is directed against the impugned

judgment of conviction and order of sentence dated 24.06.2025

passed by the learned Additional Sessions Judge, Fast Track

Special Court (POCSO), Raipur, District – Raipur (C.G.) in Special

Criminal Case No. 88/2020, whereby the learned trial Court has

convicted and sentenced the appellant with a direction to run all

the sentences concurrently in the following manner :

CONVICTION SENTENCE

U/s 363 of IPC RI for 03 years and fine of Rs.500/- and

in default of payment of fine amount,

additional RI for 01 month

U/s 366 of IPC RI for 10 years and fine of Rs.500/- and

in default of payment of fine amount,

additional RI for 01 month

U/s 506 Part-II of IPCRI for 02 years and fine of Rs.500/- and

in default of payment of fine amount,

additional RI for 01 month

U/s 4(2) of POCSO

Act

RI for 20 years and fine of Rs.500/- and

in default of payment of fine amount,

additional RI for 01 month

3

4.The prosecution's case, in brief, is that the victim is a 16-year-old

girl. On 7/05/2019, at approximately 2:00 p.m., the accused lured

the victim onto his motorcycle, claiming he knew a good paralysis

medicine provider and that paralysis could be cured. He then took

the victim away with him and had made physical relations with

her, threatening to kill her father. The next morning at 7:00 a.m.,

the victim returned home in a taxi and told her mother about the

incident. The victim's mother filed a report regarding the incident

at the Vidhansabha Police Station. Based on this, a First

Information Report (Ex.P-4) was registered against the accused at

the Vidhansabha Police Station under Sections 363, 376, and 506

of the Indian Penal Code (for short, ‘IPC’) and Section 4 of the

Protection of Children from Sexual Offences Act (for short,

‘POCSO Act’). A site map of the scene (Ex.P-8) was prepared.

With the consent of the victim and her parents, applications for

examination of the victim's genitals (Ex.P-22) and the clothing

seized from her (Ex.P-23) were prepared and sent to the District

Hospital, Raipur. Dr. Azra Khan examined the victim and the

clothing seized from her and submitted reports (Ex.P-10 and

Ex.P-11 respectively). The victim's statement was recorded. Her

statement under Section 164 of the CrPC was recorded before

the Judicial Magistrate First Class, as Ex.P-30. The statements of

the witnesses were recorded.

5.Regarding the age of the victim, the victim's Dakhil Kharij Register

was seized and a seizure memo, Ex.P-3, was prepared. The

4

accused was arrersted, an arrest panchnama (Ex.P-28) was

prepared. An application for a genital examination of the accused

(Ex.P-24) was prepared and sent to Community Health Centre,

Dharsiwa. Dr. Dinesh Kumar Sinha examined the accused and

submitted a report (Ex.P-14). An application (Ex.P-17) was sent to

the Tehsildar, Raipur, to prepare a site map of the crime scene.

Accordingly, Patwari Manoj Singh Thakur prepared a site map

(Ex.P-12). After examining the victim, a sealed packet containing

her underwear and two slides brought by female constable

No.646 was seized and a seizure memo (Ex.P-21) was prepared.

The seized items were sent to the State Forensic Science

Laboratory, Raipur, through the Superintendent of Police, after

which a receipt (Ex.P-26) was received. After examination, a

report (Ex.P-27) was obtained. After thorough investigation, the

charge sheet under Sections 363, 376, 506 of the IPC and

Section 4 of the POCSO Act was presented before the Court of

Additional Sessions Judge, Fast Track Special Court (POCSO),

Raipur, District – Raipur (C.G.).

6.When the charges under Sections 363, 366, 376(3), 506 Part II of

the IPC and Section 4(2) of the POCSO Act were framed and

read out to the accused and explained to him, he rejected the

charges and requested for trial.

7.On behalf of the prosecution, the victim (PW-1), Smt. Ruchi Soni

Principal (PW-2), father of the victim (PW-3), mother of the victim

(PW-4), Dr. Aajra Khan (PW-5), Manoj Singh Thakur Patwari

5

(PW-6), Dr. Dinesh Kumar Sinha (PW-7), Ravi Vishwakarma

Tehsildar (PW-8), Sunder Lal Gorle Sub-Inspector (PW-9) have

been examined.

8.The accused, on being examined under Section 313 of the Code

of Criminal Procedure, pleaded not guilty and did not lead any

evidence in his defence.

9.On behalf of the prosecution, seizure memo of the victim's

underwear Ex.P-1, statement of the victim under Section 164

CrPC Ex.P-2, seizure memo of the Dakhil Kharij Register Ex.P-3,

surrender deed Ex.P-4, attested copy of the Dakhil Kharij Register

Ex.P-5C, application written to the Principal for production of the

Dakhil Kharij Register Ex.P-6, First Information Report Ex.P-7,

spot map of the incident Ex.P-8, Panchnama Ex.P-9, examination

report of the victim Ex.P-10, test report of the victim’s clothes

Ex.P-11, Patwari map Ex.P-12, photocopy of memorandum

received from the office of Civil Surgeon District Hospital Ex.P-13,

test report of the accused Ex.P-14, memorandum regarding

identification proceedings Ex.P-15, Identification form Ex.P-16,

Patwari's application sent to Tehsildar for Nazri map Ex.P-17,

Notice Ex.P-18, Memorandum statement Ex.P-19, Search

Panchnama Ex.P-20, property seizure memo Ex.P-21, Letter from

Police Station in-charge Vidhansabha to District Hospital, Raipur

regarding examination of private parts of the victim and providing

report after examination of clothes taken from her Ex.P-22, MLC

form has been filled for the medical examination of the victim

6

Ex.P-23, letter from the Police Station Incharge Vidhansabha to

the District Hospital, Raipur regarding examination of the private

parts of the accused Ex.P-24, letter issued from the office of the

Superintendent of Police, District Raipur, Chhattisgarh to Joint

Director, State Forensic Science Laboratory, Raipur, regarding

giving opinion after conducting chemical test of the seized articles

Ex.P-25, acknowledgement Ex.P-26, Test Report Ex.P-27, arrest

memo Ex.P-28, arrest notice Ex.P-29, Application sent to Judicial

Magistrate First Class Raipur for recording statement of the victim

under Section 164 Cr.P.C. Ex.P-30 have been submitted.

10.After appreciation of evidence available on record, the learned

trial Court has convicted and sentenced the accused/appellant as

mentioned in para 3 of this judgment. Hence, this appeal.

11.Mr. Ajay Kumar Chandra, learned counsel for the appellant

vehemently argued that the prosecution has failed to prove the

case against the appellant beyond reasonable doubt. There is no

legally admissible evidence with regard to the age of the victim

that on the date of the incident she was minor and less than 18

years of age. In absence of examination of author of the Dakhil

Kharij Register, the same cannot be taken into consideration for

determination of the age of the victim. Dakhil-kharij register is a

weak type of evidence. No any Kotwari register or ossification

report are produced by the prosecution to determine the actual

age of the victim that on the date of incident she was below 18

years of age. It is further argued by the learned counsel for the

7

appellant that the father and mother of the victim have not

disclosed date of birth of the victim, as such, there is no legally

admissible and convincing evidence available on record to

establish that the victim was minor on the date of incident.

Learned counsel further argued that the victim is a consenting

party and she herself had established physical relations with the

appellant and she resides with the appellant in a small dhaba for

whole night, wherein two women, two men and 3 kids were

present, but she never tried to flee nor she had never raised any

alarm, therefore, the alleged offences of the IPC and POCSO Act

are not made out against the appellant and he is entitled for

acquittal.

12.On the other hand, Mr. Saumya Rai, learned Deputy Government

Advocate, appearing for the State opposes and contends that the

victim was minor and below 18 years of age at the time of incident

which is proved by the Dakhil Kharij Register Ex.P-5C which

contains the date of birth of the victim as 27.05.2003 and the

victim herself has stated that her date of birth is 27.05.2003. He

further submitted that though the father and mother have stated

that they do not remember the date of birth of the victim, but her

mother has specifically stated at the time of incident the victim

was 16 years old. He also submitted that the school register is

admissible piece of evidence to determine the age of the victim.

Therefore there is no legality or infirmity in the findings of the

learned trial court. The victim was abducted by the appellant and

8

kept away from the lawful guardianship. The appellant committed

forceful sexual intercourse with her, threatening to kill her father

and kept her in illegal confinement for whole night. As such, the

impugned judgment of conviction and sentence needs no

interference.

13.We have heard learned counsel for the parties, considered their

rival submissions made hereinabove and also went through the

records with utmost circumspection.

14.We have heard the learned counsel for the parties and peruse the

record with utmost circumstance.

15.The first question for consideration would be, whether the trial

Court is justified in holding that the victim was minor on the date

of incident ?

16.In order to consider the age of the victim, we have examined the

evidence available on record produced by the prosecution. The

prosecution relied upon copy of the Dakhil Kharij Register Ex.

P/5C which is sought to be proved by PW-2 Smt. Ruchi Soni, the

Headmaster of the concerned school, who has stated in her

deposition that she had brought with her the original Dakhil Kharij

Reigster maintained since 2016-2017. It contains entries from

entry 3271 to entry 3848 as of that day. This register is

maintained in my school as a matter of routine duty. She further

stated that Entry No. 3538 mentions the student's name along

with the parents' name, caste Satnami, resident of xxx, date of

9

birth 27.05.2003, date of admission 19.06.2017, admission in

Class 9th, date of leaving school 26.07.2021, reason 12th pass. In

her cross-examination, this witness has admitted that she did not

enter the victim's date of birth in Ex.P-05/C. The victim/student's

date of birth was based on her Class 8 TC. This witness further

admitted that no birth certificate or separate affidavit was obtained

while recording the victim/student's date of birth. She also

admitted that parents enroll their children in school by providing

estimated ages and admissions are also based on age estimates.

The witness voluntarily stated, "But as she is the Principal of a

Higher Secondary School, so she don't face these problems; they

arise when a child is admitted to the first grade." She also

admitted that she was not aware of any approximate date of birth

of the victim recorded by her parents and no seizure of the eighth

grade transfer certificate has been made from her.

17.Thus, it is clear that though the date of birth of the victim has been

stated to be written on the basis of eighth grade transfer

certificate, but no seizure of the eighth grade transfer certificate

has been made by the prosecution. Moreover, PW-3, father of the

and mother of the victim have stated that they do not know the

date of birth of the victim, though her mother has stated that at the

time of incident, the victim was aged about 16 years old. Except

dakhil kharij register (Ex.P-5C) no other evidence such as eighth

grade transfer certificate on the basis of which the same has been

10

written, birth certificate, Kotwari register or ossification report are

produced by the prosecution to prove the actual age of the victim.

18.After considering the entire facts and circumstances of the case

and evidence available on record, it emerges that the prosecution

could not produce the clinching and legally admissible evidence

with respect to the date of birth or age of the victim so as to hold

that on the date of incident she was minor and below 18 years of

age. Only on the basis of entry made in the Dakhil Kharij Register

that too in absence of eighth grade transfer certificate on the basis

of which the same has been recorded, it would not be safe to hold

that the victim was minor on the date of incident.

19.In the matter of Ravinder Singh Gorkhi Vs. State of UP, 2006

(5) SCC 584, relying upon its earlier judgment in case of Birad

Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the

Hon’ble Supreme Court has held as under :

“26. To render a document admissible under Section 35,

three conditions must be satisfied, firstly, entry that is

relied on must be one in a public or other official book,

register or record; secondly, it must be an entry stating a

fact in issue or relevant fact; and thirdly, it must be made

by a public servant in discharge of his official duty, or any

other person in performance of a duty specially enjoined

by law. An entry relating to date of birth made in the

school register is relevant and admissible under Section

35 of the Act but the entry regarding the age of a person

in a school register is of not much evidentiary value to

11

prove the age of the person in the absence of the

material on which the age was recorded."

20.In the matter of Alamelu and Another Vs. State, represented by

Inspector of Police, 2011(2) SCC 385, the Hon'ble Supreme

Court has held that the transfer certificate which is issued by

government school and is duly signed by the Headmaster would

be admissible in evidence under Section 35 of the Evidence Act

1872. However, the admissibility of such a document would be of

not much evidentiary value to prove the age of the prosecutrix in

the absence of any material on the basis of which the age was

recorded. It was observed as under

“40.Undoubtedly, the transfer certificate, Ex.P16 indicates

that the girl's date of birth was 15th June, 1977. Therefore,

even according to the aforesaid certificate, she would be

above 16 years of age (16 years 1 month and 16 days) on

the date of the alleged incident, i.e., 31st July, 1993. The

transfer certificate has been issued by a Government School

and has been duly signed by the Headmaster. Therefore, it

would be admissible in evidence under Section 35 of the

Indian Evidence Act. However, the admissibility of such a

document would be of not much evidentiary value to prove

the age of the girl in the absence of the material on the basis

of which the age was recorded.

48. We may further notice that even with reference to

Section 35 of the Indian Evidence Act, a public document

has to be tested by applying the same standard in civil as

well as criminal proceedings. In this context, it would be

appropriate to notice the observations made by this Court in

the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as

follows:-

"The age of a person as recorded in the school

register or otherwise may be used for various

purposes, namely, for obtaining admission; for

obtaining an appointment; for contesting election;

registration of marriage; obtaining a separate unit

under the ceiling laws; and even for the purpose of

litigating before a civil forum e.g. necessity of being

12

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 regard to the provisions of Section 35

of the Evidence Act will have to apply the same

standard. No different standard can be applied in case

of an accused as in a case of abduction or rape, or

similar offence where the victim or the prosecutrix

although might have consented with the accused, if

on the basis of the entries made in the register

maintained by the school, a judgment of conviction is

recorded, the accused would be deprived of his

constitutional right under Article 21 of the Constitution,

as in that case the accused may unjustly be

convicted."

21.In the matter of Rishipal Singh Solanki Vs. State of Uttar

Pradesh & Others, 2022 (8) SCC 602, while considering various

judgments, the Hon’ble Supreme Court has observed in para 33

as under :

“33. What emerges on a cumulative consideration of the

aforesaid catena of judgments is as follows:

33.2.2. If an application is filed before the Court claiming

juvenility, the provision of sub-section (2) of section 94 of the

JJ Act, 2015 would have to be applied or read along with

sub-section (2) of section 9 so as to seek evidence for the

purpose of recording a finding stating the age of the person

as nearly as may be.

XXXX XXXX XXXX

33.3. That when a claim for juvenility is raised, the burden is

on the person raising the claim to satisfy the Court to

discharge the initial burden. However, the documents

mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules

2007 made under the JJ Act, 2000 or sub-section (2) of

section 94 of JJ Act, 2015, shall be sufficient for prima facie

satisfaction of the Court. On the basis of the aforesaid

documents a presumption of juvenility may be raised.

13

33.4. The said presumption is however not conclusive proof

of the age of juvenility and the same may be rebutted by

contra evidence let in by the opposite side.

33.5. That the procedure of an inquiry by a Court is not the

same thing as declaring the age of the person as a juvenile

sought before the JJ Board when the case is pending for

trial before the concerned criminal court. In case of an

inquiry, the Court records a prima facie conclusion but when

there is a determination of age as per sub-section (2) of

section 94 of 2015 Act, a declaration is made on the basis of

evidence. Also the age recorded by the JJ Board shall be

deemed to be the true age of the person brought before it.

Thus, the standard of proof in an inquiry is different from that

required in a proceeding where the determination and

declaration of the age of a person has to be made on the

basis of evidence scrutinised and accepted only if worthy of

such acceptance.

33.6. That it is neither feasible nor desirable to lay down an

abstract formula to determine the age of a person. It has to

be on the basis of the material on record and on

appreciation of evidence adduced by the parties in each

case.

33.7 This Court has observed that a hypertechnical

approach should not be adopted when evidence is adduced

on behalf of the accused in support of the plea that he was a

juvenile.

33.8. If two views are possible on the same evidence, the

court should lean in favour of holding the accused to be a

juvenile in borderline cases. This is in order to ensure that

the benefit of the JJ Act, 2015 is made applicable to the

juvenile in conflict with law. At the same time, the Court

should ensure that the JJ Act, 2015 is not misused by

persons to escape punishment after having committed

serious offences.

33.9. That when the determination of age is on the basis of

evidence such as school records, it is necessary that the

same would have to be considered as per Section 35 of the

Indian Evidence Act, inasmuch as any public or official

document maintained in the discharge of official duty would

have greater credibility than private documents.

33.10. Any document which is in consonance with public

documents, such as matriculation certificate, could be

accepted by the Court or the JJ Board provided such public

document is credible and authentic as per the provisions of

14

the Indian Evidence Act viz., section 35 and other

provisions.

33.11 Ossification Test cannot be the sole criterion for age

determination and a mechanical view regarding the age of a

person cannot be adopted solely on the basis of medical

opinion by radiological examination. Such evidence is not

conclusive evidence but only a very useful guiding factor to

be considered in the absence of documents mentioned in

Section 94(2) of the JJ Act, 2015.”

22.Recently, in the matter of P. Yuvaprakash Vs. State represented

by Inspector of Police, 2023 SCC Online SC 846, Hon’ble

Supreme Court has held in para 14 to 17 as under :

“14. Section 94 (2)(iii) of the JJ Act clearly indicates that

the date of birth certificate from the school or

matriculation or equivalent certificate by the concerned

examination board has to be firstly preferred in the

absence of which the birth certificate issued by the

Corporation or Municipal Authority or Panchayat and it is

only thereafter in the absence of these such documents

the age is to be determined through “an ossification test”

or “any other latest medical age determination test”

conducted on the orders of the concerned authority, i.e.

Committee or Board or Court. In the present case,

concededly, only a transfer certificate and not the date of

birth certificate or matriculation or equivalent certificate

was considered. Ex. C1, i.e., the school transfer

certificate showed the date of birth of the victim as

11.07.1997. Significantly, the transfer certificate was

produced not by the prosecution but instead by the court

summoned witness, i.e., CW-1. The burden is always

upon the prosecution to establish what it alleges;

therefore, the prosecution could not have been fallen

back upon a document which it had never relied upon.

Furthermore, DW-3, the concerned Revenue Official

(Deputy Tahsildar) had stated on oath that the records for

the year 1997 in respect to the births and deaths were

missing. Since it did not answer to the description of any

class of documents mentioned in Section 94(2)(i) as it

was a mere transfer certificate, Ex C-1 could not have

been relied upon to hold that M was below 18 years at

the time of commission of the offence.

15. In a recent decision, in Rishipal Singh Solanki vs.

State of Uttar Pradesh & Ors. this court outlined the

procedure to be followed in cases where age

15

determination is required. The court was dealing with

Rule 12 of the erstwhile Juvenile Justice Rules (which is

in pari materia) with Section 94 of the JJ Act, and held as

follows:

“20. Rule 12 of the JJ Rules, 2007 deals with the

procedure to be followed in determination of age.

The juvenility of a person in conflict with law had to

be decided prima facie on the basis of physical

appearance, or documents, if available. But an

inquiry into the determination of age by the Court or

the JJ Board was by seeking evidence by

obtaining: (i) the matriculation or equivalent

certificates, if available and in the absence

whereof; (ii) the date of birth certificate from the

school (other than a play school) first attended; and

in the absence whereof; (iii) the birth certificate

given by a corporation or a municipal authority or a

panchayat. Only in the absence of either (i), (ii) and

(iii) above, the medical opinion could be sought

from a duly constituted Medical Board to declare

the age of the juvenile or child. It was also provided

that while determination was being made, benefit

could be given to the child or juvenile by

considering the age on lower side within the margin

of one year.”

16. Speaking about provisions of the Juvenile Justice

Act, especially the various options in Section 94 (2) of

the JJ Act, this court held in Sanjeev Kumar Gupta vs.

The State of Uttar Pradesh & Ors that:

“Clause (i) of Section 94 (2) places the date of birth

certificate from the school and the matriculation or

equivalent certificate from the 2021 (12) SCR 502

[2019] 9 SCR 735 concerned examination board in

the same category (namely (i) above). In the

absence thereof category (ii) provides for obtaining

the birth certificate of the corporation, municipal

authority or panchayat. It is only in the absence 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

16

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 from the school first attended, could

be obtained. In Section 94(2)(i) both the date of

birth certificate from the school as well as the

matriculation or equivalent certificate are placed in

the same category.

17. In Abuzar Hossain @ Gulam Hossain Vs. State of

West Bengal, this court, through a three-judge bench,

held that the burden of proving that someone is a juvenile

(or below the prescribed age) is upon the person claiming

it. Further, in that decision, the court indicated the

hierarchy of documents that would be accepted in order

of preference.”

23.Reverting to the facts of the present case and due consideration

of the prosecution evidence, we find that no any clinching and

legally admissible evidence have been brought by the prosecution

to prove the fact that the victim was minor on the date of incident

yet the trial court in the impugned judgment has held her minor,

hence, we set aside the finding given by the trail Court that on the

date of incident the victim was minor.

24.The next question for consideration would be, whether the trial

Court is justified in convicting the appellant for offence under

Section 363 of the IPC ?

25.The appellant has been convicted for offence under Section 363

of the IPC, which is punishable for kidnapping. Kidnapping has

been defined under Section 359 of the IPC. According to Section

17

359 of the IPC, kidnapping is of two kinds: kidnapping from India

and kidnapping from lawful guardianship. Section 361 of the IPC

defines kidnapping from lawful guardianship which states as

under:-

“361. Kidnapping from lawful guardianship.-Whoever

takes or entices any minor under sixteen years of age if a

male, or under eighteen years of age if a female, or any

person of unsound mind, out of the keeping of the lawful

guardian of such minor or person of unsound mind,

without the consent of such guardian, is said to kidnap

such minor or person from lawful guardianship.”

26.The object of Section 359 of the IPC is at least as much to protect

children of tender age from being abducted or seduced for

improper purposes, as for the the protection of the rights of

parents and guardians having the lawful charge or custody of

minors or insane persons. Section 361 has four ingredients:-

(1) Taking or enticing away a minor or a person of

unsound mind.

(2) Such minor must be under sixteen years of age, if a

male, or under eighteen years or age, if a female.

(3) The taking or enticing must be out of the keeping of

the lawful guardian of such minor or person of unsound

mind.

(4) Such taking or enticing must be without the consent of

such guardian.

So far as kidnapping a minor girl from lawful guardianship is

concerned, the ingredients are : (i) that the girl was under 18

years of age; (ii) such minor was in the keeping of a lawful

guardian, and (iii) the accused took or induced such person to

18

leave out of such keeping and such taking was done without the

consent of the lawful guardian.

27. The Supreme Court while considering the object of Section 361 of

the IPC in the matter of S.Varadarajan v. State of Madras

1

, took

the view that if the prosecution establishes that though

immediately prior to the minor leaving the father's protection no

active part was played by the accused, he had at some earlier

stage solicited or persuaded the minor to do so and held that if

evidence to establish one of those things is lacking, it would not

be legitimate to infer that the accused is guilty of taking the minor

out of the keeping of the lawful guardian and held as under:-

“It would, however, be sufficient if the prosecution

establishes that though immediately prior to the minor

leaving the father's protection no active part was played

by the accused, he had at some earlier stage solicited or

persuaded the minor to do so. If evidence to establish

one of those things is lacking it would not be legitimate to

infer that the accused is guilty of taking the minor out of

the keeping of the lawful guardian merely because after

she has actually left her guardian's house or a house

where her guardian had kept her, joined the accused and

the accused helped her in her design not to return to her

guardian's house by taking her along with him from place

to place. No doubt, the part played by the accused could

be regarded as facilitating the fulfilment of the intention of

the girl. But that part falls short of an inducement to the

minor to slip out of the keeping of her lawful guardian and

is, therefore, not tantamount to “taking”.”

28.Reverting to the facts of the present case in light of ingredients of

offence under Section 361 of the IPC which is punishable under

Section 363 of the IPC & as well as principles of law laid down by

the Supreme Court in the matter of S.Varadarajan (supra), the

1AIR 1965 SC 942

19

prosecution case itself is that the victim with the permission of her

father had gone with the appellant for buying the medicine and the

alleged act of sexual assault took place thereafter. There is no

allegation in the FIR, the statements of the victim, or the evidence

adduced before the Trial Court that the appellant removed or

enticed the victim from the lawful custody of her guardian so as to

attract the offence of kidnapping. The prosecution has not

produced any material to establish that the appellant had taken

her away from the lawful guardianship of her parents without their

consent. In the absence of any cogent evidence proving these

foundational ingredients, the conviction of the appellant under

Section 363 IPC cannot be sustained. Accordingly, this Court

holds that the prosecution has failed to prove the charge under

Section 363 IPC beyond reasonable doubt. The appellant is,

therefore, acquitted of the said charge.

29.So far as the issue of forceful sexual intercourse by the appellant

upon the victim is concerned, we have carefully perused the

statement of the victim recorded by the trial Court.

30.In this regard, the victim (PW-1) said that there is a small grocery

shop in her house, her mother goes to work, her father is a

paralytic patient, she has two younger brothers, on the date of

incident 07/05/2019, she was doing stitching work in the grocery

shop, her father was inside the house, her brothers were playing

behind the house, there is a door of the house from the side of the

grocery shop, then the accused came at 2.00 pm and asked

20

about her father, he went home to meet her father and returned

after ten to fifteen minutes. The accused said he knew a good

medicine for paralysis. At the same time, her younger brother also

came to the shop and said that his father was asking her to go

with the accused to get the medicine. The accused asked her to

go to village Chhapora to get the medicine. She sat on the

motorcycle with the accused and left for Chhapora. The victim

further stated that instead of taking her to Chhapora, the accused

took her to a side road. Then he drove her around for two to three

hours. He took her near a house and told her that her mother had

gone to a wedding. Then he took her to a deserted field and told

her that he had been taking her around on the bike for so long,

how he could left her. The accused started removing her clothes.

She also stated that when she refused, the accused said he

would cut her with a blade. After that, the accused removed her

lower clothes and forcibly had sex with her. The victim also

submitted that as it was night, they stayed at a small dhaba and

the accused said that he would drop her home the next day. The

accused dropped her home the next day in a Tata Magic vehicle.

After reaching her home, the victim informed her parents and aunt

about the incident.

31.The victim in her cross-examination has admitted that on arrival,

her father was calling him brother-in-law, according to which the

accused would seem to be her maternal uncle, she has denied

that the accused used to come to their house earlier also, she has

21

accepted that she does not know the accused before, she has

accepted that at the place where they stayed for the night, there

were two women, two men and children also, she has also

accepted that they have no knowledge about the incident, she has

also accepted that the people sitting in the magic vehicle have no

knowledge about the incident.

32.The victim's father (PW-3) stated that he does not remember the

exact date of the incident. He is paralyzed for the last three-four

years. On the date of the incident, he was getting a massage

done by his sons at home. There is a tailoring shop adjacent to

the house, in which the victim was stitching her torn school

uniform. At the same time, the victim came to him and said that

her uncle had come. Then a boy came inside the room, who had

wrapped his face in a towel. He told him that he knew the

medicine for paralysis and would bring it for him. After that, he left.

The witness said that he did not recognize that boy. On the same

day, the victim was at home with that boy. She went with him to

Lalpur on a motorcycle in the name of buying medicine. The

victim had gone around 12.00 noon and did not return the whole

night. The next morning the victim returned home in a hired car.

On returning home, the victim told him that the boy had raped her.

33.On being declared hostile by the prosecution and being asked

leading questions, this witness has admitted that he came to know

later that the name of the boy who had taken the victim from her

house and raped her is Dhaneshwar Dhritlahare, the accused.

22

34.The victim's mother (PW-4) stated that on the date of the incident

she had gone to work, her husband is paralyzed, he cannot walk,

the victim and her younger son were at home, there is a small

tailoring shop in the house itself, in which the victim was sitting to

stitch her uniform, at around 2.00 in the afternoon the accused

came to her house and told the victim that your father is

paralyzed, he will get her the medicine, he is like her maternal

uncle, the victim said that she will ask her father and come, the

victim asked the accused from where will you get the medicine, he

said that he will get it from Chhapora village, then he took the

victim with him on his motorcycle. When, the victim did not return

till evening, her son came to inform her, she went home and

searched for the victim nearby, when she could not find her, she

went to the police station to lodge a report, the next day the victim

came home on foot and started crying a lot, told that the accused

took her to Lutudih forest and raped her, the accused was holding

a blade at that time, he threatened that he would kill the victim

and her father as well, and took the victim to the police station,

her medical examination was done with her consent, the police

confiscated the victim's underwear, she lodged a First Information

Report (Ex.P-7) at the Vidhansabha police station, the police

prepared a site map (Ex.P-8) of the incident site, the patwari

prepared a site map (Ex.P-9).

35.Dr. Aajra Khan (PW-5) stated that she had examined the victim on

08/05/2019 when she was brought by constable Shyamali Mishra

23

of Mahila Thana. The victim was of normal height, was fully

conscious, her physical and mental condition was normal,

secondary sexual characteristics were fully developed, there were

no external injury marks on her body, last menstrual date was

03/05/2019, the genitals of the victim were examined. There was

a half cm long scratch in the lower part, her hymen was torn, its

edge was red in colour, which was swollen and painful, two slides

of the victim's vaginal discharge were prepared and handed over

to the concerned lady constable with the advice of chemical test,

according to her opinion, sexual intercourse had probably taken

place with the victim, for which two slides were prepared and

handed over for chemical test and after the test, report of Ex.P-10

was given.

36.On the same date, the victim's underwear was brought for

examination in a sealed packet by the lady constable, in which

there were spots similar to semen at three places, which were

marked with red ink, which was sealed and handed over to the

concerned constable for chemical examination, after examination

he gave the report of Ex.P-11.

37.In the cross-examination, it has been admitted by Dr. Aajra Khan

(PW-5) that there were no injury marks on the body of the victim

and it has also been admitted that there were no signs of forcible

sexual intercourse on the victim at that time.

24

38.Dr. Dinesh Kumar Soni (PW-7) has testified regarding the

examination of the accused conducted by Dr. O.P. Tandon on

25/05/2020. The report Ex.P-14 has been certified, in which it was

found that there was no injury in the genitals of the accused,

secondary sexual characteristics were fully developed and pubic

hair and arm hair were fully developed and climactic reflex was

present, according to the test report there is no such fact that the

accused is incapable of having sexual intercourse.

39.As per FSL report, Ex.P-27, human sperm were found in the slide

of the vaginal discharge and the victim's underwear. This fact also

clearly shows that the victim had sexual intercourse. Thus, the

State Forensic Science Laboratory report, Exhibit P-27, also

corroborates the victim's statement.

40.In the matter of Jaya Mala v. Home Secretary, Govt. of Jammu

& Kashmir and others

2

, 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

2AIR 1982 SC 1297

25

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

two different dates he marginally crossed the bounds

of law. It passes comprehension to believe that he

can be visited with drastic measure of preventive

detention. One cannot treat young people, may be

immature, may be even slightly misdirected, may be

a little more enthusiastic, with a sledge hammer. In

our opinion, in the facts and circumstances of this

case the detention order was wholly unwarranted

and deserved to be quashed.”

41.In Alamelu and Another Vs. State, represented by Inspector of

Police

3

, 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

3 2011(2) SCC 385

26

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

not suffer from any basic infirmities or improbabilities

which render it unworthy of credence.

xxx xxx xxx

54. Even PW5, Thiru Thirunavukarasu stated that

Sekar (A1) had brought the girl with him to his house

and told him that he had married her. They had come

to see Trichy and requested a house to stay. This

witness categorically stated that he thought that they

were newly married couple. He had made them stay in

Door No. 86 of the Police Colony, which was under his

responsibility. On 10th August, 1993, the police

inspector, who arrived there at 10.00 p.m. told this

witness that Sekar (A1) had married the girl by

threatening her and "spoiled her". The girl, according to

the prosecution, was recovered from the aforesaid

premises. Therefore, for six days, this girl was staying

with Sekar (A1). She did not raise any protest. She did

not even complain to this witness or any other

residents in the locality. Her behavior of not

complaining to anybody at any of the stages after being

allegedly abducted would be wholly unnatural.

55. Earlier also, she had many opportunities to

complain or to run away, but she made no such effort.

It is noteworthy that she made no protest on seeing

some known persons near the car, after her alleged

abduction. She did not make any complaint at the

residence of Selvi, sister of Sekar (A1) at Pudupatti.

Again, there was no complaint on seeing her relatives

allegedly assembled at the temple. Her relatives

apparently took no steps at the time when mangalsutra

was forcibly tied around her neck by Sekar (A1). No

27

one sent for police help even though a car was

available. She made no complaint when she was taken

to the house of PW5, Thiru Thirunavukarasu and

stayed at his place. Again, there was no protest when

Sekar (A1) took her to the police station on 5th day of

the alleged abduction and told at the Tiruchi Police

Station that they had already been married. The above

behaviour would not be natural for a girl who had been

compelled to marry and subjected to illicit sexual

intercourse.

56. In view of the aforesaid, we are of the considered

opinion that the prosecution has failed to prove beyond

reasonable doubt any of the offences with which the

appellants had been charged. It appears that the entire

prosecution story has been concocted for reasons best

known to the prosecution.”

42.In the matter of Tilku Alias Tilak Singh V. The State Of

Uttarakhand

4

, the Supreme Court has held that he victim, who is

between 16 to 18 years of age is very much in the age of

understanding as to what was right and wrong for her. Relevant

para of the said judgment states as under:-

“16. Even if the finding of the learned Single Judge of

the High Court that the prosecutrix was between 16 to

18 years of age is to be accepted, in our view, the

offence under Sections 363 and 366 IPC would still not

be made out.

17. This Court in the case of S. Vardarajan v. State of

Madras, reported in 1964 SCC OnLine SC 36 had an

occasion to consider almost similar facts that arise for

consideration in the present case. This Court has

observed thus:

“7. …..It will thus be seen that taking or enticiting

away a minor out of the keeping of a lawful guardian

4 2025 INSC 226

28

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

29

the appellant and Savitri lived as man and wife and

visited different places. There is no suggestion in

Savitri's evidence, who, it may be mentioned had

attained the age of discretion and was on the verge

of attaining majority that she was made by the

appellant to accompany him by administering any

threat to her or by any blandishments. The fact of her

accompanying the appellant all along is quite

consistent with Savitri's own desire to be the wife of

the appellant in which the desire of accompanying

him wherever he went was course implicit. In these

circumstances we find nothing from which an

inference could be drawn that the appellant had

been guilty of taking away Savitri out of the keeping

of her father. She willingly accompanied him and the

law did not cast upon him the duty of taking her back

to her father's house or even of telling her not to

accompany him. She was not a child of tender years

who was unable to think for herself but, as already

stated, was on the verge of attaining majority and

was capable of knowing what was good and what

was bad for her…….”

18. It is thus clear that the prosecutrix, who according to

the learned Single Judge of the High Court, was between

16 to 18 years of age was very much in the age of

understanding as to what was right and wrong for her.

19. From the evidence of the prosecutrix itself, it will be

clear that she had voluntarily gone along with the

appellant herein, travelled to various places and also

resided as husband and wife at Dehradun.”

43.The law is well settled that in case of rape, conviction can be

maintained even on the basis of sole testimony of the victim.

30

However, there is an important caveat which is that the testimony

of the victim must inspire confidence. Even though the testimony

of the victim is not required to be corroborated, if her statement is

not believable, then the accused cannot be convicted. The

prosecution has to bring home the charges levelled against the

appellant beyond reasonable doubt, which the prosecution has

failed to do in the instant case.

44.Considering the entire evidence available on record and the

conduct of the victim, we are of the opinion that the victim was

more than 18 years of age at the time of incident, further she was

a consenting party with the appellant. Therefore, in the above

facts and circumstances of the case, offence under Sections 363,

366, 506-II of the IPC and Section 4(2) of the POCSO Act would

not be made out against the appellant.

45.For the foregoing reasons, the appeal is allowed and the

impugned judgment of conviction and order of sentence dated

24.06.2025 passed by the learned Additional Sessions Judge,

Fast Track Special Court (POCSO), Raipur, District – Raipur

(C.G.) in Special Criminal Case No. 88/2020 is set aside. The

appellant stands acquitted from all the charges. The appellant is

reported to be in jail since 25.05.2020. He be released forthwith if

not required in any other case.

46.Keeping in view the provisions of Section 437-A of the Code of

Criminal Procedure, 1973 (Now Section 481 of the Bhartiya

31

Nagarik Suraksha Sanhita, 2023), the appellant is directed

forthwith furnish a personal bond in terms of Form No.45

prescribed in the Code of Criminal Proceure of sum of Rs.25,000/-

with two reliable sureties in the like amount before the Court

concerend which shall be effective for a period of six months

along with an undertaking that in the event of filing of Special

Leave Petition against the instant judgment or for grant of leave,

the aforesaid appellant on receipt of notice thereof shall appear

before the Hon’ble Supreme Court.

47.The Trial Court record alongwith the copy of this judgment be sent

back immediately to the trial Court concerned for compliance and

necessary action.

Sd/- Sd/-

(Ravindra Kumar Agrawal) (Ramesh Sinha)

Judge Chief Justice

Chandra