1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 1937 of 2023

Lalbabu S/o Dharampal Sonwani Aged About 24 Years R/o Village

Nagra, P.S. Ramanujganj, District-Balrampur - Ramanuj ganj,

Chhattisgarh.

---- Appellant

Versus

State of Chhattisgarh Through P. S. Ramanujganj, District- Balrampur-

Ramanujganj, Chhattisgarh.

---- Respondent

(Cause Title taken from Case Information System)

___________________________________________________ _____

For Appellant : Mr. Bharat Lal Dembra, Advocate.

For Respondent/State : Mr. Kanwaljeet Singh Saini, Panel Lawyer

___________________________________________________ _____

Hon'ble Mr. Ramesh Sinha, Chief Justice

Hon’ble Mr. Sachin Singh Rajput, Judge

Judgment on Board

Per Ramesh Sinha, Chief Justice

25.06.2024

1.The appellant has preferred this appeal under Section 374(2) of

Code of Criminal Procedure, 1973 (for short, ‘CrPC’)

questioning the impugned judgment dated 16.08.2023 passed

by the learned Additional Sessions Judge (F.T.S.C.) (POCSO)

Ramanujganj (C.G.) in Special Case (POCSO) No.94/2020,

whereby the trial Court has convicted and sentenced the

appellant with a direction to run all the sentences concurrently in

the following manner : 2024:CGHC:21400-DB

Neutral Citation

2

CONVICTION SENTENCE

U/s 363 of IPC R.I. for 5 years and fine of Rs.

500/- and in default of payment

of fine additional imprisonment

for 1 month

U/s 366 of IPC R.I. for 5 years and fine of Rs.

500/- and in default of payment

of fine additional imprisonment

for 1 month

U/s 4(2) of the POCSO

Act-2012

R.I. for 20 years and fine of Rs.

15,000/- and in default of

payment of fine additional

imprisonment for 2 months

2.Case of the prosecution, in brief, is that, the father of the victim 'B'

P.W.2, on 29.08.2020, submitted a written complaint in Police

Station, Ramanujganj to the effect that on 27.08.2020, at around

11:00 pm, the victim, aged 14 years and 04 months, had gone

missing from home and efforts were being made to locate the

victim. On 28.08.2020, he received information that accused

Lalbabu along with his companion was taking the victim on his

motorcycle to Balrampur from Tatapani. On receiving the above

information, when the accused was chased by his son and

nephew, accused Lalbabu dropped the victim from the motorcycle

near Daldhova Ghat forest and accused Lalbabu went towards

Ambikapur with his companion. Thereafter, the victim came home

and informed her that the accused Lalbabu had seduced her and

made her sit on a motorcycle along with his companion and took

her to the Dalko Dam forest and there she was raped by the

accused Lalbabu. 2024:CGHC:21400-DB

Neutral Citation

3

3.On the basis of above written complaint, Lady Inspector Anita

Prabha Minj (P.W.-05), registered First Information Report against

accused Lalbabu Sonwani under Section 363, 366 and 376 of the

Indian Penal Code and Section 4, 6 of the Protection of Children

from Sexual Offenses Act 2012 under Crime No.146/2020 at

Police Station Ramanujganj vide Ex.P-5 and statement of victim

(P.W.-01) was recorded and after obtaining consent from the

victim's father, the victim's genitals were examined at the

Community Health Center, Ramanujganj. Female Doctor,

Dr.Shabana Arafat (P.W.-10), after examining the genitals and

panty of the victim, gave the report as Ex.P-17 and Ex.P-18.

Thereafter, the victim's underwear was seized vide Ex.P-2 and

Class 5 progress sheet of the victim was seized from the father of

the victim vide Ex.P-7 and the victim's vaginal slide was seized

vide Ex.P-12.

4.During the course of further investigation of the case, Sub

Inspector Ashwini Pandey (P.W.-06), after inspecting the place of

incident

i.e. the house of the victim, prepared the visual map vide

Ex.P-4. To get information about the date of birth of the victim,

attested copy of dakhil kharij register Ex.-14C was seized vide

Ex.P-12 from Munna Singh (P.W.07), head master of Government

Primary School, Nagara. Further, accused was arrested and his

underwear was seized as per seizure memo Ex.P-09. The

accused's ability to have sexual intercourse and the underwear of

the accused were tested. Dr. Kailash Kaivartya (PW-09) submitted 2024:CGHC:21400-DB

Neutral Citation

4

the reports relation to the same vide Ex.P-15 and Ex.P-16. The

vaginal slides and two pieces of underwear seized in the case

were sent to FSL for chemical testing. Thereafter, after completing

all the legal formalities related to the investigation in the case, a

case was registered against the accused Lalbabu under Section

363, 366, 376(2)(n), 376(3) of the Indian Penal Code and Section

4, 6 of the Protection of Children from Sexual Offenses Act 2012

and charge sheet was presented before the concerned trial Court.

5.On the basis of the charge-sheet presented in the case, the

accused

prima facie appears to have committed crimes under

Section 363 read with Section 34, 366 read with Section 34, 376

(3) of the Indian Penal Code and Section 4 (2) of the Protection of

Children from Sexual Offenses Act 2012. When the charges were

framed, read out and explained, the accused refused to accept

the charges and claimed trial.

6.The prosecution, in support of its case, examined as many as 10

witnesses, namely, victim 'A' (PW-01), Father of the victim-B (PW-

02), Brother of the victim-D (PW-03), Patwari Chanchal Kumar

Minj (PW-04), Inspector Anita Prabha Minj (PW-05), Sub-

Inspector Ashwini Pandey (PW-06), In-charge Pradhan Pathak

Munna Singh (PW-07), Victim's neighbor ‘E’ (PW-8), Dr. Kailash

Kaivartya (PW-09) and Dr. Shabana Arafat (PW-10).

7.On the basis of the evidence presented in the case, when the

statement of the accused was examined in the form of a

questionnaire under Section 313 of the Code of Crimin al 2024:CGHC:21400-DB

Neutral Citation

5

Procedure, to prove his innocence, evidence of one Gopal Singh

(DW-01) was presented.

8.The trial Court after completion of trial and after appreciating oral

and documentary evidences available on record, by the impugned

judgment dated 16.08.2023 convicted and sentenced the

appellant in the manner mentioned in the opening paragraph of

this judgment, against which this appeal under Section 374(2) of

the CrPC has been preferred by them calling in question the

impugned judgment.

9.Learned counsel for the appellant vehemently argued that the

appellant has been falsely implicated in the present case as

there is dispute in relation to transaction of land purchase, he

has not committed any illegality and the said fact is evident from

the answer to question No.58, wherein the appellant has

specifically stated that he has been falsely implicated in relation

to the land purchase transaction dispute. He further argued that

the defence witness Gopal Singh (DW-01) has specifically

stated in paragraph 3 of his evidence that the land of accused

Lalbabu’s grandfather has been taken over by the victim’s father

by forcefully and had constructed a well over it, due to which

there was dispute between the two families, regarding which a

Panchayat was held in the village, he also participated in the

said Panchayat. The Panchayat asked the victim’s father to

leave the land on which a well was constructed by forcefully

occupying from the grandfather of the accused, but the victim’s 2024:CGHC:21400-DB

Neutral Citation

6

father had said that he would not leave the said land, on which

the Panchayat told the accused’s grandfather to file a case

against the victim’s father due to which the victim’s father

became very angry and treat was given to file a case against the

accused and his family members and send them to jail. He

submitted that the victim herself has admitted in her statement

that she was having love affair with the appellant and she does

not want to lodge report against the appellant. He further

submitted that age of the victim has also not been proved by the

prosecution and therefore, conviction is illegal. He contended

that the learned trial Court further erred in holding that the date

of birth of the victim as 10.08.2005 on the basis of dakhil kharij

register which was not at all admissible and hence, the

conviction is bad. He further contended that the conviction is on

higher side considering the age of the appellant and further, in

absence of any cogent material, the learned trial Court has

awarded punishment of 20 years which deserves to be set

aside.

10.On the other hand, learned Panel Lawyer appearing for the

State/respondent submitted that the appellant has committed a

heinous crime of rape against a minor girl aged about 15 years

and 17 days and the same has been duly proved by the

prosecution as per Dhakil Kharij Register (Ex.P-14C) and

statement of Munna Singh (PW-7), the in-charge head master of

Government Primary School, Nagara. He further submitted that 2024:CGHC:21400-DB

Neutral Citation

7

it is not a case of consent, but as per the appellant, it is a case

of false implication. He further submitted that the victim has

specifically stated in her statement that the accused has

committed rape on her which was duly proved as per the MLC

report of the victim (Ex.P-17) conducted by Dr. Shabana

Araphat (PW-10), whereby minor nail scratches over her body

and her hymen was found to be old and ruptured and on

examination of the panty of the victim, some white semen like

stain was found and as per opinion of the Doctor, the same may

be semen stain and as per evidence of Dr. Kailash Kaiwartya

(PW-9), the accused was mentally and physically healthy and

capable of sexual intercourse, as such, the commission of rape

by the accused upon the victim has been duly proved by the

prosecution. As such, the judgment of conviction and sentence

awarded by the learned trial Court is just and proper warranting

no interference.

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

rival submissions made herein-above and went through the

records with utmost circumspection.

12.The first question for consideration before this Court would

be, whether the trial Court has rightly held that on the date

of incident, the victim was minor?

13.When a person is charged for the offence punishable under the

POCSO Act, or for rape punishable in the Indian Penal Code,

the age of the victim is significant and essential ingredient to 2024:CGHC:21400-DB

Neutral Citation

8

prove such charge and the gravity of the offence gets changed

when the child is below 18 years, 12 years and more than 18

years. Section 2(d) of the POCSO Act defines the “child” which

means any person below the age of eighteen years.

14.In

Jarnail Singh Vs. State of Haryana, reported in (2013) 7

SCC 263

, the Hon’ble Supreme Court laid down the guiding

principles for determining the age of a child, which read as

follows :

“22. On the issue of determination of age of a minor,

one only needs to make a reference to Rule 12 of the

Juvenile Justice (Care and Protection of Children)

Rules, 2007 (hereinafter referred to as the 2007

Rules). The aforestated 2007 Rules have been framed

under Section 68(1) of the Juvenile Justice (Care and

Protection of Children) Act, 2000. Rule 12 referred to

hereinabove reads as under :

“12. Procedure to be followed in

determination of Age.? (1) In every case

concerning a child or a juvenile in conflict with

law, the court or the Board or as the case may

be the Committee referred to in rule 19 of these

rules shall determine the age of such juvenile or

child or a juvenile in conflict with law within a

period of thirty days from the date of making of

the application for that purpose.

(2) The court or the Board or as the case may

be the Committee shall decide the juvenility or

otherwise of the juvenile or the child or as the

case may be the juvenile in conflict with law,

prima facie on the basis of physical appearance

or documents, if available, and send him to the

observation home or in jail.

(3) In every case concerning a child or juvenile

in conflict with law, the age determination

inquiry shall be conducted by the court or the 2024:CGHC:21400-DB

Neutral Citation

9

Board or, as the case may be, the Committee

by seeking evidence by obtaining –

(a) (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;

(b) and only in the absence of either (i),

(ii) or (iii) of clause (a) above, the medical

opinion will be sought from a duly

constituted Medical Board, which will

declare the age of the juvenile or child. In

case exact assessment of the age cannot

be done, the Court or the Board or, as the

case may be, the Committee, for the

reasons to be recorded by them, may, if

considered necessary, give benefit to the

child or juvenile by considering his/her

age on lower side within the margin of

one year.

and, while passing orders in such case shall,

after taking into consideration such evidence as

may be available, or the medical opinion, as the

case may be, record a finding in respect of his

age and either of the evidence specified in any

of the clauses (a)(i), (ii), (iii) or in the absence

whereof, clause (b) shall be the conclusive

proof of the age as regards such child or the

juvenile in conflict with law.

(4) If the age of a juvenile or child or the

juvenile in conflict with law is found to be below

18 years on the date of offence, on the basis of

any of the conclusive proof specified in sub-rule

(3), the court or the Board or as the case may

be the Committee shall in writing pass an order

stating the age and declaring the status of

juvenility or otherwise, for the purpose of the

Act and these rules and a copy of the order

shall be given to such juvenile or the person

concerned.

(5) Save and except where, further inquiry or

otherwise is required, inter alia, in terms of

section 7A, section 64 of the Act and these

rules, no further inquiry shall be conducted by 2024:CGHC:21400-DB

Neutral Citation

10

the court or the Board after examining and

obtaining the certificate or any other

documentary proof referred to in sub-rule (3) of

this rule.

(6) The provisions contained in this rule shall

also apply to those disposed off cases, where

the status of juvenility has not been determined

in accordance with the provisions contained in

sub- rule(3) and the Act, requiring dispensation

of the sentence under the Act for passing

appropriate order in the interest of the juvenile

in conflict with law.”

23. Even though Rule 12 is strictly applicable only to

determine the age of a child in conflict with law, we are

of the view that the aforesaid statutory provision

should be the basis for determining age, even for a

child who is a victim of crime. For, in our view, there is

hardly any difference in so far as the issue of minority

is concerned, between a child in conflict with law, and

a child who is a victim of crime. Therefore, in our

considered opinion, it would be just and appropriate to

apply Rule 12 of the 2007 Rules, to determine the age

of the prosecutrix VW-PW6. The manner of

determining age conclusively, has been expressed in

sub-rule (3) of Rule 12 extracted above. Under the

aforesaid provision, the age of a child is ascertained,

by adopting the first available basis, out of a number of

options postulated in Rule 12(3). If, in the scheme of

options under Rule 12(3), an option is expressed in a

preceding clause, it has overriding effect over an

option expressed in a subsequent clause. The highest

rated option available, would conclusively determine

the age of a minor. In the scheme of Rule 12(3),

matriculation (or equivalent) certificate of the

concerned child, is the highest rated option. In case,

the said certificate is available, no other evidence can

be relied upon. Only in the absence of the said 2024:CGHC:21400-DB

Neutral Citation

11

certificate, Rule 12(3), envisages consideration of the

date of birth entered, in the school first attended by the

child. In case such an entry of date of birth is available,

the date of birth depicted therein is liable to be treated

as final and conclusive, and no other material is to be

relied upon. Only in the absence of such entry, Rule

12(3) postulates reliance on a birth certificate issued

by a corporation or a municipal authority or a

panchayat. Yet again, if such a certificate is available,

then no other material whatsoever is to be taken into

consideration, for determining the age of the child

concerned, as the said certificate would conclusively

determine the age of the child. It is only in the absence

of any of the aforesaid, that Rule 12(3) postulates the

determination of age of the concerned child, on the

basis of medical opinion.”

15.In the present case, the prosecution has presented a certified

copy of the Dakhil Kharij Register (Ex.P-14-C) of the

Government Primary School, Nagara, in which the date of birth

of the victim is mentioned as 10.08.2005. In this regard, the

Incharge Headmaster of the concerned school (PW-7),

appeared in the Court and displayed the original Dakhil Kharij

Register, in which the date of birth of the victim is mentioned as

10.08.2005. The defence has not presented any oral o r

documentary evidence to refuse the said date of birth, therefore,

there is no reason to disbelieve the date of birth of the victim, as

10.08.2005 hence, we are of the considered opinion that the trial

Court has rightly held that the date of birth of the victim is 2024:CGHC:21400-DB

Neutral Citation

12

10.08.2005 and on the date of incident i.e. 27.08.2020 she was

minor and her age was 15 years 17 days.

16.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 ?

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 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. 2024:CGHC:21400-DB

Neutral Citation

13

(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

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

1

AIR 1965 SC 942 2024:CGHC:21400-DB

Neutral Citation

14

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), it is evident that on the date of incident i.e. on

27.08.2020 the victim (PW-1) had gone missing from home and

efforts were being made to locate the victim. On 28.08.2020, the

father of victim (PW-2) received information that accused

Lalbabu along with his companion was taking the victim on his

motorcycle to Balrampur from Tatapani. On receiving the above

information, when the accused was chased by his son (PW-3)

and nephew, accused Lalbabu dropped the victim from the

motorcycle near Daldhova Ghat forest and accused Lalbabu

went towards Ambikapur with his companion. As such, we are

of the considered view that the trial Court is absolutely justified

in convicting the appellant for offence under Section 363 of the

IPC. 2024:CGHC:21400-DB

Neutral Citation

15

21.The next question for consideration before us is whether

the appellant has committed rape on minor victim?

22.The evidence presented by the father of the victim states that

the victim had gone missing from the house on the night of the

incident and during the search for the victim, he got information

on the next morning that the accused Lalbabu had taken the

victim away in his motorcycle. Thereafter, the victim was chased

by his son and his son's friend and the victim was caught at

Daldhova Ghat.

23.According to the prosecution story, there are witnesses victim’s

brother ‘D’ (PW-3) and victim’s neighbor ‘E’ (PW-8), who saw

the accused and the victim at Daldhova ghat while accused

Lalbabu was taking the victim on a motorcycle towards

Pratappur and the accused left the victim at the said ghat and

ran away on the motorcycle. The evidence presented by the

above two witnesses states that on 28.08.2020, they saw the

accused Lalbabu driving the victim on a motorcycle at Daldhova

Ghat. It is noteworthy that since there is no rebuttal to the main

evidence presented by the said witnesses in the cross-

examination, the evidence presented by the said witnesses is

reliable in favor of the prosecution.

24.Victim ‘A’ (PW-1) in her examination-in-chief has stated that in

the year 2019, when she was going to school to study in class

ninth, the accused used to stop her and talk to her and talked

about loving her and the accused seduced her and took her out 2024:CGHC:21400-DB

Neutral Citation

16

of the house and used to ask her to run away and on the

incident date 27.08.2020, the accused Lalbabu along with his

partner chased her away on a motorcycle and took her to

Tatpani and the accused Lalbabu took her to the forest of Dalko

Dam and raped her while talking about marrying her. It is

further mentioned in the evidence presented by the victim that

after the said incident, while the accused Lalbabu was taking

her, then his brothers caught him near Daldhova Ghat and they

returned home taking her with them and she came home and

told his father and brother about the said incident. Father of the

victim (PW-2) and victim's brother (PW-3) and victim's neighbor

(PW-8) have presented supporting evidence of receiving the

above information from the victim.

25.In cross-examination regarding abducting the victim and raping

the victim, the victim (PW-1) has accepted the suggestion that

she has known and talked to the accused since childhood and

both used to visit each other's houses. The victim has rejected

this suggestion that while going to the grocery shop in her

locality, she used to go to the house of accused Lalbabu to meet

him and she was forbidden by the sister and mother of the

accused from coming to their house and in this regard, in the

village, a meeting was held and the accused and she were

prohibited from meeting and talking and denied having

knowledge of whether there was a land related dispute between

the accused's father and her father or not. It has been admitted 2024:CGHC:21400-DB

Neutral Citation

17

by the victim that there are houses on the side of the road

leading from her village towards Tatapani and there is always

traffic on the road and she did not tell anyone on the way that

the accused was abducting her. The suggestion has also been

accepted by the victim that her father and the brother have

asked her to file a report against the accused and was

threatened with death if the report was not filed. When asked

questions by the Court in this regard, the victim admitted that

she loved the accused Lalbabu and because of the said love,

she did not want to file a report against the accused. Apart from

this, the defense's suggestion has been rejected by the victim's

father that he has constructed a well on some part of the

accused's father's land and in this regard, when the accused's

father called the Patwari for demarcation, the demarcation

proceedings were not allowed to take place by abusing the

father of the accused.

26.Thus, in the above cross-examination conducted on behalf of

the accused, no such grounds have been provided by the

defense side to refute the evidence presented in the main trial

by the victim (PW-1) and her father (PW-2) that the accused had

lured the victim away and raped her. Thus, the evidence

presented by the said witnesses is reliable in favor of the

prosecution.

27.Dr. Shabana Arafat (PW-10), the medical witness who had

examined the genitals of the victim, stated that while she was 2024:CGHC:21400-DB

Neutral Citation

18

working as a Medical Officer in C.H.C. Ramanujganj, when the

genitals of the victim and her panty were presented for

examination by the Police Station, Ramanujganj on 29.08.2020,

then on external examination of the victim, marks of scratching

with nails were found on both hands, both arms, forearm and

right breast and on internal examination, it was found that the

vaginal membrane of the victim was old and torn and as per the

statement of the victim, the last physical relation with her was

established on the night of 27.08.2020. Thereafter, two slides

were prepared by extracting the fluid from the victim's genitals,

sealed separately and handed over to the same constable for

chemical testing. In this regard, as per the test report (Ex.P-17),

it was opined that a definite opinion cannot be given regarding

immediate sexual intercourse with the victim. Thereafter, the

test report of the victim's panty was prepared vide Ex.P-18,

wherein it is mentioned that on the victim's panty, while colored

spots were present on the inner central part. In this regard, the

said panty was sealed and handed over to the constable for

chemical examination. It is noteworthy that the fact of the said

witness examining the victim’s genitals and panty examination is

undisputed in the cross-examination. Therefore, the evidence

presented by the said witness is reliable in favour of the

prosecution.

28.The medical witness who tested accused Lalbabu's ability to

have sexual intercourse was Dr. Kailash Kaivartya (PW-9). The 2024:CGHC:21400-DB

Neutral Citation

19

evidence presented by PW-9 states that after examining the

private parts of the accused on 12.09.2020, vide the test report

(Ex.P-15), it was opined that Lalbabu was mentally and

physically healthy and capable of sexual intercourse. In the

cross-examination done by the defense side, no such

statements have been made by the said witness which would be

capable of contradicting the main examination evidence

presented by the said witness.

29.As per the statement of Patwari Chanchal Kumar Miri (Pw-4), he

had prepared the spot map as per the description given to him

by the complainant. It is noteworthy that the statement of the

said witness remains intact in cross-examination.

30.The investigation officer of the case, Sub Inspector Anita Prabha

Minj (PW-5) and Sub Inspector Ashwini Pandey (PW-6) have

investigated the case as per process shown in the prosecution

case mentioned in paragraph 2 of this judgment and has been

explained in detail in the main trial. In the detailed cross-

examination conducted on behalf of the accused, no such

statements have been made by the said Investigating Officers,

which are different from the contents of the documents available

in the case or which contradict the main examination evidence

presented by them. Thus, it is clear that no fact of any error or

irregularity related to investigation exists in the present case.

31.It has been stated by by witness presented on behalf of the

defense Gopal Singh (DW-1) in his examination-in-chief that the 2024:CGHC:21400-DB

Neutral Citation

20

land of accused Lalbabu's grandfather Vishwanath is adjacent to

the land of the victim's father and there was a dispute between

the families of the victim and the accused in relation to the land

of the accused's grandfather was being sold and the victim's

father forcibly constructed a well on the said land and a

Panchayat meeting was held in the village in this regard. In the

said meeting, when the victim's father told not to leave the land,

the victim's father became very angry when the grandfather of

the accused threatened to file a case in this regard against the

victim and his family and sent them to jail and it is because of

this reason that a false case of rape has been filed by the

victim's father against the accused. In this regard, in the cross-

examination conducted by the Special Public Prosecutor, the

said witness admitted that when he came to know that a false

case had been filed against the accused by the victim's father,

he did not make any complaint in this regard to the police station

or the Superintendent of Police. He also admitted that he does

not know on which date the Panchayat meeting was held. It is

noteworthy that the defense side has also asked the victim's

father questions related to the land dispute between the victim's

father and the accused's grandfather and the victim's father has

given a negative answer to the said questions. Apart from this,

the defense witness who was the then Panch has not presented

any documents related to the proceedings of the Panchayat 2024:CGHC:21400-DB

Neutral Citation

21

meeting. Therefore, on the above basis it is shown that the

evidence presented by the said defense witness is not reliable.

32.Thus, on the basis of the irrefutable evidence presented by the

victim (PW-1) and the above mentioned analysis of the evidence

of other witnesses, the evidence presented by the victim is

being confirmed. The evidence of Dr. Shabana Arafat (PW-10)

is confirming the evidence presented by the victim on the basis

of the evidence of nail scratch marks on both her hands, both

her arms and forearm and right breast and the hymen being old

and torn. The doctor who tested the sexual capability of the

accused, Dr. Kailash Kaivartya (PW-9) has given the opinion

that the accused was found capable of performing sexual acts.

Therefore, on the above basis also, the evidence presented by

the victim regarding rape is being confirmed.

33.From the above analysis, we are of the considered opinion that

the prosecution has proved its case beyond reasonable doubt

that the appellant has committed penetrative assault on the

pretext of marriage with the victim.

34.The next question for consideration would be, whether the

trial Court is justified in convicting the appellant for offence

under Section 366 of the IPC ?

35.Now, the appellant has also been convicted for offence under

Section366 of the IPC which states as under: -

“366. Kidnapping, abducting or inducing

woman to compel her marriage, etc.—Whoever 2024:CGHC:21400-DB

Neutral Citation

22

kidnaps or abducts any woman with intent that she

may be compelled, or knowing it to be likely that

she will be compelled, to marry any person against

her will, or in order that she may be forced or

seduced to illicit intercourse, or knowing it to be

likely that she will be forced or seduced to illicit

intercourse, shal lbe punished with imprisonment of

either description for a term which may extend to

ten years, and shall also be liable to fine; and

whoever, by means of criminal intimidation as

defined in this Code or of abuse of authority or any

other method of compulsion, induces any woman to

go from any place with intent that she may be, or

knowing that it is likely that she will be, forced or

seduced to illicit intercourse with another person

shall be punishable as aforesaid.”

36.In order to constitute offence under Section 366 of the IPC, it is

necessary for the prosecution to prove that the accused induced

the complainant woman or compelled by force to go from any

place, that such inducement was by deceitful means, that such

abduction took place with the intent that the complainant may be

seduced to illicit intercourse and / or that the accused knew it to

be likely that the complainant may be seduced to illicit

intercourse as a result of her abduction. Mere abduction does

not bring an accused under the ambit of this penal provision. So

far as charge under Section 366 of the IPC is concerned, mere

finding that a woman was abducted is not enough, it must

further be proved that the accused abducted the woman with the

intent that she may be compelled, or knowing it to be likely that 2024:CGHC:21400-DB

Neutral Citation

23

she will be compelled to marry any person or in order that she

may be forced or seduced to illicit intercourse or knowing it to be

likely that she will be forced or seduced to illicit intercourse.

37.Their Lordships of the Supreme Court in the matter of

Mohammed Yousuff alias Moula and another v. State o f

Karnataka

2

pointing out the essential ingredients required to be

proved by the prosecution for bringing a case under Section 366

of the IPC, relying upon the decision rendered in the matter of

Kavita Chandrakant Lakhani v. State of Maharashtra

3

, has

clearly held that in order to constitute an offence under Section

366 of the IPC, besides proving the factum of abduction, the

prosecution has to prove that the said abduction was for one of

the purposes mentioned in Section 366 of the IPC, and

observed as under: -

“8. Chapter XVI of IPC contains offences against

the human body. Section 366, which is the

pertinent provision, is contained within this

Chapter. Kidnapping/abduction simpliciter is

defined under Section 359 and maximum

punishment for the same extends up to seven

years and fine as provided under Section 363.

However, if the kidnapping is done with an intent of

begging, to murder, for ransom, to induce women

to marry, to have illicit intercourse stricter

punishments are provided from Section 363A to

Section 369.

2

2020 SCC OnLine SC 1118

3

(2018) 6 SCC 664 2024:CGHC:21400-DB

Neutral Citation

24

9. Section 366 clearly states that whoever

kidnaps/abducts any woman with the intent that

she may be compelled or knowing that she will be

compelled, to either get her married or

forced/seduced to have illicit intercourse they shall

be punished with imprisonment of up to ten years

and fine. The aforesaid Section requires the

prosecution not only to lead evidence to prove

kidnapping simpliciter, but also requires them to

lead evidence to portray the abovementioned

specific intention of the kidnapper. Therefore, in

order to constitute an offence under Section 366,

besides proving the factum of the abduction, the

prosecution has to prove that the said abduction

was for one of the purposes mentioned in the

section. In this case at hand the prosecution was

also required to prove that there was compulsion

on the part of the accused persons to get the victim

married. [See Kavita Chandrakant Lakhani v. State

of Maharashtra, (2018) 6 SCC 664].”

38.In the instant case, the appellant kidnapped the victim with an

intent to commit illicit intercourse and has committed penetrative

assault on the pretext of marriage with her and as the offence of

sexual assault has been found proved by the prosecution which

satisfies the requirement of Section 366 of the IPC. As such, we

are of the considered view that the trial Court is absolutely

justified in convicting the appellant for offence under Section 366

of the IPC.

39.Reverting to the instant case, the victim was minor below the

age of 16 years on the date of incident, which has been proved 2024:CGHC:21400-DB

Neutral Citation

25

by the certified copy of dakhil kharij register (Ex.P-14C) where

her date of birth has been mentioned as 10.08.2005 and the

date of incident was 27.08.2020 and as such, she was aged 15

years and 17 days. The said fact has remain unshaken and

unrebutted by the defence. As such, the view taken by the

learned trial Court that the appellant is the author of the crime is

a pure finding of fact based on evidence available on record and

we are of the opinion that in the present case, the only view

possible was the one taken by the trial Court. Since the victim

was below the age of 16 years on the date of incident, hence,

offence under Section 376(3) of IPC and Section 4(2) of the

POCSO Act is fully proved against the appellant.

40.Section 42 of the POCSO Act, 2012 reads as under:

"42. Alternate punishment.- Where an act or

omission constitutes an offence punishable under

this Act and also under sections 166A, 354A, 354B,

354C, 3540, 370, 370A, 375, 376, 376A, 376C,

3760, 376E or section 509 of the Indian Penal Code,

then, notwithstanding anything contained in any law

for the time being in force, the offender found guilty

of such offence shall be liable to punishment under

this Act or under the Indian Penal Code as provides

for punishment which is greater in degree.

42A. Act not in derogation of any other law. - The

provisions of this Act shall be in addition to and not

in derogation of the provisions of any other law for

the time being in force and, in case of any

inconsistency, the provisions of this Act shall have 2024:CGHC:21400-DB

Neutral Citation

26

overriding effect on the provisions of any such law to

the extent of the inconsistency."

41.Since the commission of offence under Section 376(3) of the

IPC and Section 4(2) of the POCSO Act have been duly proved,

the learned trial Court has rightly convicted and sentenced the

appellant under Section 4(2) of the POCSO Act and under the

principle of double punishment, he has exempted the accused

from the charges of Section 376(3) of the IPC. No leniency can

be shown towards the appellant as he has sexually assaulted

the prosecutrix aged below 16 years of age.

42.From the above analysis, we are of the considered opinion that

the prosecution has been successful in proving its case beyond

reasonable doubt and the learned trial Court has not committed

any legal or factual error in arriving at the finding with regard to

the guilt of the appellant/convict.

43.Accordingly, the appeal being devoid of merit is liable to be and

is hereby dismissed.

44.The appellant/convict is stated to be in jail. He shall serve out

the sentence awarded by the trial Court by means of the

impugned judgment and order dated 16.08.2023.

45.Let a certified copy of this order alongwith the original record be

transmitted to trial Court concerned forthwith for necessary

information and action, if any.

Sd/- Sd/-

(Sachin Singh Rajput) (Ramesh Sinha)

Judge Chief Justice

Chandra 2024:CGHC:21400-DB

Neutral Citation