1

2026:CGHC:255-DB

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 1540 of 2022

Pritam Gir @ Ghislu S/o Santa Gir Goswami, Aged About 20 Years R/o

Village Matiyari, Police Station Seepat, District : Bilaspur, Chhattisgarh

... Appellant

versus

State of Chhattisgarh Through Station House Officer, Police of Police

Station - Seepat, District : Bilaspur, Chhattisgarh

... Respondent

(Cause Title taken from Case Information System)

________________________________________________________

For Appellant : Mr. Qamrul Aziz, Advocate

For Respondent/State: Mr. Priyank Rathi, Govt. Advocate

________________________________________________________

Hon'ble Mr. Ramesh Sinha, Chief Justice

Hon’ble Mr. Arvind Kumar Verma , Judge

Judgment on Board

Per Ramesh Sinha, Chief Justice

05.01.2026

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 12.08.2022 passed by the

Additional Sessions Judge, Second Fast Track Special Court,

Bilaspur (C.G.) in Special Criminal Case (POCSO Act) No.

390/2018, whereby the learned trial Court has convicted and

sentenced the appellant with a direction to run all the sentences

concurrently in the following manner :

2

CONVICTION SENTENCE

U/s 363 of IPC RI for 7 years and fine amount of

Rs.1000/- and in default of payment of

fine, further imprisonment of 4 months

U/s 363 of IPC RI for 7 years and fine amount of

Rs.1000/- and in default of payment of

fine, further imprisonment of 4 months

U/s 366 of IPC RI for 10 years and fine amount of

Rs.1000/- and in default of payment of

fine, further imprisonment of 6 months

U/s 366 of IPC RI for 10 years and fine amount of

Rs.1000/- and in default of payment of

fine, further imprisonment of 6 months

U/s 5(M)/6 of IPC Life imprisonment for life time till death

and fine amount of Rs.2,000/- and in

default of payment of fine, further

imprisonment of 1 year

2.The prosecution case in brief is that the complainant/informant, the

father of the victim No.1 (PW-2), appeared at the Kotwali police

station on 30/12/2018 and submitted a written complaint application

to the effect that on 30/12/2018 at 6:00 pm in village Matiyari, Police

Station-Sipat, his daughter, victim No.1, aged 09 years, along with

her cousin sister, victim No.2 (PW-15), aged 07 years, had gone out

to look for a cow in the village. An unknown person of about 20-22

years of age sent them to bring gutkha and eat khaai worth Rs. 5

and took them to his pond and raped them. She is unable to speak

due to pain and blood is flowing from her private parts. When he

3

asked, his daughter, victim No.1, then she told while crying that an

unknown person had raped her and her niece, victim No.2, also

informed him about the incident. On the written report of the

complainant, Inspector Anju Chelak registered a First Information

Report against unknown persons under Crime No. 0/2018 under

Section 376 of the IPC and Section 4, 8 of the POCSO Act and filed

a First Information Report. In Police Station Sipat, Sub-Inspector

C.S. Netam registered a crime under Crime No. 390/2019 and filed

a numbered First Information Report. Statements of witnesses

were recorded in the case. The accused was arrested after taking

action of seizure etc. Thereafter, after complete investigation, a

case was registered against accused Pritam Gir alias Ghislu under

Section 376AB of the IPC and Section 4, 8 of the POCSO Act and

on finding evidence of the offence, the charge sheet was presented

in the Court of Additional Sessions Judge, Second Fast Track

Special Court, Bilaspur (C.G.) for trial on 14/03/2019.

3.Charges were framed against the accused under sections 363, 363,

366, 366, 376 of the IPC and sections 5(M)/6 of the POCSO Act and

were read out to the accused, who denied the charges and sought

trial.

4.So as to prove the complicity of the accused/appellant in the crime

in question, prosecution has examined as many as 21 witnesses

and exhibited 28 documents in support of its case. Statement of

the accused/appellant under Section 313 CrPC was also recorded

4

in which he pleaded his innocence and false implication in the

case. The accused did not give any defense evidence in his

defence.

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

and documentary evidences available on record, by the impugned

judgment dated 12.08.2022 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.

6.Learned counsel for the appellant vehemently argued that the

learned trial Court has failed to properly appreciate the evidence

led by the prosecution and has wrongly convicted the appellant.

The prosecution failed to prove the case against the appellant

beyond reasonable doubt. The statements of the victims are full

of conjectures and surmises and are highly unreliable. The age of

the victims have not been proved and no ossification test for

determining the age has been done which makes the whole case

of prosecution doubtful. Hence, the conviction is liable to be set

aside.

7.On the other hand, learned State counsel for the State/respondent

submitted that the appellant has committed a heinous crime of

rape against minor victim No.1, aged about 9 years by alluring

and abducting her along with victim No.2 and the same has been

duly proved by the prosecution beyond reasonable doubt. As

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such, the judgment of conviction and sentence awarded by the

learned trial Court is just and proper warranting no interference.

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

rival submissions made herein-above and went through the

records with utmost circumspection.

9.The first question for consideration before this Court would

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

incident, the victims were minor?

10.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 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.

11.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

6

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 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

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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 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

8

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 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.”

12.In this regard, the prosecution witness, victim No.1 (PW-2) has

stated her age to be 11 years in her court statement dated

26/08/2019 and the mother of victim No.1 (PW-1) has stated the

age of her daughter victim to be 09 years at the time of the

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incident and the father of victim No.1 (PW-4) has stated the age of

his daughter victim to be 10 years. Regarding the age of the

victim No.1 (PW-2), the Investigating Officer C.S. Netam (PW-17),

the then Sub-Inspector, Sipat Police Station, has stated that

regarding the age of the victim No.1, he had seized the mutation

register related to the victim No.1 from the Headmaster Pratap

Satyarthi of Government Primary School Matiyari, as per seizure

memo Ex.P-11. This is being confirmed by the statements of

Headmaster Pratap Satyarthi (PW-11), witness Pramod Yadav

(PW-6), the uncle of the victim (PW-4) and the attested copy of

the mutation register from the document in Article 'A'.

13.Prosecution witness Head teacher Pratyap Satyarthi (PW-11) has

stated that Sipat police had seized from him the mutation register

of Government Primary School Matiyari, as per seizure memo

Ex.P-11, to know the date of birth of victim No.1. In serial number

2754 of the mutation register, the date of birth of victim No.1 is

mentioned as 16/03/2009. The witness has stated that the

attested copy of the said register is Article 'A'. On perusal of

Article 'A', the date of birth of victim No.1 (PW-2) is mentioned as

16/03/2009. The incident is of 30/12/2018. Victim No.1 was

admitted in Class IV in Government Primary School, Matiyari on

10/07/2018 and as per Article 'A' of the attested copy of the

admission registration, the entry relating to victim No.1 was made

in the year 2018. For the above reason, it cannot be said that the

family members of the victim had made a false entry while

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admitting victim No.1 (PW-2) in the school, imagining some future

incident before the incident. The defence has not presented any

oral or documentary evidence to refuse the said date of birth,

therefore, there is no reason to disbelieve the date of birth of the

victim No.1, as 16/03/2009 hence, we are of the considered

opinion that the trial Court has rightly held that the date of birth of

the victim No.1 is 16/03/2009 and her age on the date of incident

i.e. 30/12/2018 was 09 years 09 months and 14 days.

14.In the present case, there is no document on record regarding the

age of Victim No.2 (PW-15). The prosecution has not included

victim No.2's parents as witnesses and presented their evidence.

In the written report filed by the complainant, the complainant has

stated that her daughter, victim No.1 is 9 years old and her niece,

victim No.2, is 7 years old. In victim No.2's statement to the Court

on 21/10/2021, victim No.2 stated her age to be 10 years old. The

Court questioned the witness, as she was a child witness, to

assess her competency. The defense has not disputed any facts

regarding victim No.2's age, nor has her age been challenged.

Hence, we are of the considered opinion that the trial Court has

rightly held that the victim No.2 was under 12 years of age on the

date of incident i.e. 30.12.2018. We hereby affirmed the said

finding.

15.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 ?

11

16.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.”

17.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.

12

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.

18.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”.”

1

AIR 1965 SC 942

13

19.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 while the victims had gone out to look for their cow in

the village, the accused sent them to bring gutkha and eat khaai

worth Rs. 5 and by alluring took them near pond without the

permission of their legal guardian and raped them. 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.

20.The next question for consideration before us is whether the

appellant has committed rape on minor victim No.1 ?

21.It has been stated by the victim No.1 (PW-02) stated that on the

day of the incident, her younger sister, her elder father's daughter,

was with her. They were going to look for the cow when the

accused said that their cow was there and he would show it to

them. He took them to the Kuda pond and by stripping her

clothes, began making it dirty. He was putting his urine in her

mouth and severely beating her. The accused had bitten the right

side of her mouth, causing it to swell. She had vomited profusely

and was bleeding from her urinating place. She and her younger

sister were crying. The accused left after committing the crime,

and they also returned. She and her sister told her mother about

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the incident and she was taken to the hospital. She identified the

accused. Her statement was recorded in Bilaspur. She further

stated that the accused gave her 20 rupees and asked her to

bring Rajshree and Khai, after which she brought gutkha. In

cross-examination, the witness denied the defense's suggestion

that she had scratched her urethra excessively, causing the

bleeding, and that the accused had not committed any misdeed.

Thus, the victim's statement established that the accused had

coaxed her, inserted his genitals into her mouth, and that this act

had caused bleeding from her genitals.

22.Supporting the statement of victim No.1 regarding the incident,

victim No.2 (PW-15) has stated that the incident took place about

4 years ago. It was around 06:00 in the evening that day, she and

her sister, the victim No.1, were on their way to the village when

the accused met them on the way and gave them Rs. 20/- and

said that they should bring Rajshree worth Rs. 10, keep Rs. 05/-

and bring back Rs. 05/-. Then they brought Rajshree and when

they started giving it to him, he said that follow him, he will show

them the calf grazing there. He took both of them to the pond and

slept there and opened his pants and made them remove all their

clothes and climbed on his sister, the victim No.1, and was doing

dirty things. When they said that they would go home, he said

stop and caught hold of them. The accused climbed on her also.

They followed the accused and found their way home. While

returning, they encountered his uncle and aunt, and the victim

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No.1's parents. They then returned home with them. At home, his

sister, victim No.1, fainted because the accused had inserted his

urinal into her mouth. His sister, victim No.1, was taken to a

doctor. His sister, victim No.1, was vomiting profusely. The victim

had previously testified in Court and identified the accused. Victim

No.2, in cross-examination, refuted the defense's suggestion that

the accused had not committed any misdeeds against her and her

sister, victim No.1.

23.As per statements of victim No.1 (PW-2) and victim No.2 (PW-15),

the accused took them towards the pond and by taking away their

clothes, put his urinal in their mouths.

24.Rape has been defined in Section 375 of the IPC as follows :

“375. Rape.-- A man is said to commit "rape" if he--

(a) penetrates his penis, to any extent, into the vagina,

mouth, urethra or anus of a woman or makes her to do

so with him or any other person; or

(b) inserts, to any extent, any object or a part of the

body, not being the penis, into the vagina, the urethra

or anus of a woman or makes her to do so with him or

any other person; or

(c) manipulates any part of the body of a woman so as

to cause penetration into the vagina, urethra, anus or

any part of body of such woman or makes her to do so

with him or any other person; or

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(d) applies his mouth to the vagina, anus, urethra of a

woman or makes her to do so with him or any other

person,

under the circumstances falling under any of the

following seven descriptions:

First. Against her will.

Secondly. Without her consent.

Thirdly. With her consent, when her consent has been

obtained by putting her or any person in whom she is

interested, in fear of death or of hurt.

Fourthly. With her consent, when the man knows that

he is not her husband and that her consent is given

because she believes that he is another man to whom

she is or believes herself to be lawfully married.

Fifthly. With her consent when, at the time of giving

such consent, by reason of unsoundness of mind or

intoxication or the administration by him personally or

through another of any stupefying or unwholesome

substance, she is unable to understand the nature and

consequences of that to which she gives consent.

Sixthly. With or without her consent, when she is under

eighteen years of age.

Seventhly. When she is unable to communicate

consent.

Explanation 1. For the purposes of this section,

"vagina" shall also include labia majora.

Explanation 2. Consent means an unequivocal

voluntary agreement when the woman by words,

17

gestures or any form of verbal or non-verbal

communication, communicates willingness to

participate in the specific sexual act:

Provided that a woman who does not physically

resist to the act of penetration shall not by the reason

only of that fact, be regarded as consenting to the

sexual activity.

Exception 1. A medical procedure or intervention shall

not constitute rape.

Exception 2. Sexual intercourse or sexual acts by a

man with his own wife, the wife not being under fifteen

years of age, is not rape.”

25.Investigating Officer C.S. Netam (PW-17) has stated that he had

sent the seized material to the office of the Regional Forensic

Science Laboratory for examination through the Superintendent of

Police, the receipt of which is Ex.P.27 and the FSL report attached

to the case is Ex.P. 28. In which semen stains and human

sperms have been found in B, C, D. As per FSL report Ex.P-28,

alleged leggings of victim No.1 (PW-2) i.e. A. alleged panties of

the victim i.e. B. alleged diaper of the victim i.e. C. alleged full

pants of the accused i.e. D1, alleged full shirt of the accused i.e.

D2, alleged underwear of the accused i.e. D3, soil of the crime

scene i.e. E., soil of the crime scene i.e. F. in which semen stains

and human sperms have been found in B, C & D. Thus, the

presence of human sperms in the panties and diaper of victim

No.1 confirms that the accused raped the victim No.1.

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26.The statement of victim No.1 that she was taken to doctor, is

being confirmed by the statement of Dr. Shubhra Mitra (PW-19)

and the test report Ex.P-16A. From the medical evidence, it has

been found that there were injuries inside and outside the vagina

of the victim No.1 and in the chemical test, the presence of human

sperm has been found in the leggings and panties of the victim.

Thus, from the evidence presented by the prosecution, it is proved

that the accused abducted the victim No.1 and victim No.2 without

the permission of their legal guardian and took them away with

the intention of having illicit sexual intercourse against their will

and raped the victim No.1.

27.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 ?

28.The appellant has also been convicted for offence under Section

366 of the IPC which states as under: -

“366. Kidnapping, abducting or inducing woman

to compel her marriage, etc.—Whoever 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, shall be

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

19

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.”

29.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 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.

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

Mohammed Yousuff alias Moula and another v. State of

Karnataka

2

pointing out the essential ingredients required to be

proved by the prosecution for bringing a case under Section 366

2

2020 SCC OnLine SC 1118

20

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.

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

3

(2018) 6 SCC 664

21

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].”

31.In the instant case, as the offence of sexual assault has been

found proved by the prosecution which satisfies the requirement of

Section 366 of the IPC, 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.

32.In the case of Ganesan v. State, (2020) 10 SCC 573, the

Supreme Court observed and held that that there can be a

conviction on the sole testimony of the victim/prosecutrix when the

deposition of the prosecutrix is found to be trustworthy,

unblemished, credible and her evidence is of sterling quality.

33.In the case of State (NCT of Delhi) v. Pankaj Chaudhary,

{(2019) 11 SCC 575}, it was observed and held that as a general

rule, if credible, conviction of accused can be based on sole

testimony, without corroboration. It was further observed and held

that sole testimony of prosecutrix should not be doubted by court

merely on basis of assumptions and surmises.

34.In the case of Sham Singh v. State of Haryana, {(2018) 18 SCC

34}, the Supreme Court observed that testimony of the victim is

22

vital and unless there are compelling reasons which necessitate

looking for corroboration of her statement, the courts should find

no difficulty to act on the testimony of the victim of sexual assault

alone to convict an accused where her testimony inspires

confidence and is found to be reliable. It was further observed that

seeking corroboration of her statement before relying upon the

same, as a rule, in such cases amounts to adding insult to injury.

35.Applying the law laid down by the Supreme Court in the cases

(supra) to the facts of the case on hand and as observed

hereinabove, we see no reason to doubt the credibility and/or

trustworthiness of the victims. They are found to be reliable and

trustworthy. Therefore, without any further corroboration, the

conviction of the accused relying upon the sole testimony of the

victims can be sustained.

36.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 learned trial

Court.

37.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.

23

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

hereby dismissed.

39.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 12.08.2022.

40.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.

41.Registry is directed to send a copy of this judgment to the

concerned Superintendent of Jail where the appellant is

undergoing jail sentence, to serve the same on the appellant

informing him that he is at liberty to assail the present judgment

passed by this Court by preferring an appeal before the Hon’ble

Supreme Court with the assistance of the High Court Legal

Services Committee or the Supreme Court Legal Services

Committee.

Sd/- Sd/-

(Arvind Kumar Verma) (Ramesh Sinha)

Judge Chief Justice

Chandra

24

Head – Note

Testimony of a child victim, if natural, consistent, and trustworthy,

is sufficient to sustain conviction and does not require corroboration as

a rule of law. Allurement and taking of a minor from lawful guardianship

with intent to commit a sexual offence attract Sections 363 and 366 IPC.

Oral penetration by the accused squarely falls within the definition of

rape and penetrative sexual assault under law.