Himachal Pradesh High Court
Vivek Kumar @ Gotia vs State Of H.P on 27 June, 2025
(2025:HHC:20095)
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.463 of 2023
Reserved on: 05.06.2025
.
Date of Decision: 21.06.2025
Vivek Kumar @ Gotia ...Appellant
Versus
State of H.P. ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1
For the Appellant : Mr. Arjun Lall, Advocate.
For the Respondent/State : Mr. Jitender Sharma,
Additional Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and order dated 16.03.2023, passed by learned Additional
Sessions Judge, (Fast Track Court) Kangra, at Dharmshala, H.P.
(learned Trial Court), vide which the appellant (accused before
learned Trial Court) was convicted of the commission of offences
punishable under Sections 363 and 366 of the Indian Penal Code
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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(IPC) and Section 4 of the Protection of Children from Sexual
Offences Act (POCSO Act) and was sentenced as under:
.
Under Section 363 of the Sentenced to undergo simple
IPC imprisonment for two years, pay a
fine of ₹ 2000/- and in default of
payment of fine to further undergosimple imprisonment for two
months.
Under Section 366 of the Sentenced to undergo simple
IPC imprisonment for three years, pay afine of ₹ 3000/- and in default of
payment of fine to further undergo
simple imprisonment for three
months.
Under Section 4 of POCSO Sentenced to undergo simple
Act imprisonment for seven years, pay a
fine of ₹ 5000/- and in default of
payment of fine to further undergosimple imprisonment for five
months.
The substantive sentences of imprisonment were
directed to run concurrently.
(Parties shall hereinafter be referred to in the same
manner as they were arrayed before the learned Trial Court for
convenience.)
2. Briefly stated, the facts giving rise to the present
appeal are that the police presented a challan before the learned
Trial Court for the commission of offences punishable under
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Sections 363, 366 and 376 of the IPC and Section 6 of the POCSO
Act. It was asserted that the victim (name being withheld to
protect her identity) had gone to her school on 03.08.2018 at
.
about 08.30 a.m., however, she did not return to her home. Her
parents made an enquiry from the school and found that she had
not visited the school. Her father also made enquiries from his
relatives and found that the accused was also missing from his
home. He suspected that the accused had kidnapped the victim.
He filed an application (Ex.PW1/A) before the police. FIR
(Ex.P1/PW12) was registered at the police station. SI Ashwani
Thakur (PW22) conducted the investigation. He searched for the
victim and the accused and found that they had traveled from
Khanyara to Mandi in the vehicle driven by Shammi Kumar
(PW13). SI Ashwani Thakur went to the house of the accused, but
the accused was not present at home. His father disclosed that
the accused had left the home on 03.08.2018. SI Ashwani Thakur
directed him to inform the police in case of the return of the
accused. Jagdish Chand, the father of the accused, informed the
police on 09.08.2018 that the accused and the victim had reached
the house. The police went to the house of the accused. The
victim and the accused were found sitting in a room. The victim’s
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parents identified her. One blue bag containing the clothes of the
accused and the victim was kept near the accused. The police
separated the clothes of the victim and the accused. These were
.
put in separate parcels, and each parcel was sealed with seal “X”.
Seal impression (Ex. P1/PW22) was taken on a separate piece of
cloth, and the seal was handed over to the victim’s father after
the use. The parcels were seized vide memo (Ex.PW1/B). SI
Ashwani Thakur prepared the site plan (Ex. P2/PW10). He took
the photographs (Ex. P2/PW15 to P12/PW15). The statement of
the victim was recorded. The video recording was transferred to
the DVD (Ex. P1/PW13). An application (Ex. P2/PW22) was filed
for conducting the medical examination of the victim. Dr.
Deepika (PW9) conducted the victim’s medical examination and
found that the possibility of sexual intercourse could not be ruled
out. She issued the MLC (Ex. P2/PW7). She preserved the samples
and handed them over to the police official accompanying the
victim. The accused was interrogated and arrested. An
application (Ex. PW8/A) was filed for conducting his medical
examination. Dr. Kumar Saurav (PW8) conducted the medical
examination of the accused and found that there was nothing to
suggest that the accused was incapable of performing sexual
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intercourse. He issued the MLC (Ex.PW8/B). He preserved the
samples and handed them over to the police official
accompanying the accused. An application (Ex. P3/PW22) was
.
filed before the learned Judicial Magistrate 1 st Class, Dharmshala,
for recording the statement of the victim under Section 164 of
Cr.P.C. Statement (Ex.P10/PW14) was recorded by the learned
Judicial Magistrate 1st Class. An application (Ex.PW3/A) was filed
before the Head Master of the school in which the victim was
studying for issuing the date of birth certificate of the victim.
Rupali (PW3) issued a copy of the Matriculation Certificate
(Ex.PW3/B) showing that the victim was born on 30.10.2001 and
an extract of the daily attendance record (Ex.PW3/C). An
application (Ex.PW4/A) was filed for obtaining the Birth
Certificate of the victim from the Secretary, Gram Panchayat.
Surinder Kumar (PW4) issued a Date of Birth Certificate
(Ex.PW4/B) showing that the victim’s date of birth was
30.10.2001. The site plan of the place, where the victim was kept
in an old dilapidated house (Ex. P6/PW22), was prepared. The
victim also identified the place from which she was kidnapped.
Site plan (Ex. P7/PW22) was prepared. The accused identified the
hotel, where he had stayed with the victim for three days. Site
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plan (Ex. P7/PW22) was prepared. CCTV footage of the hotel
(Ex.P9/PW22) was seized. The copy of the driving license
(Ex.P2/PW17), which the accused had handed over in the hotel,
.
was also seized. The copy of the bill book (Ex. P3/PW17) was
taken into possession. The case property was sent to FSL Junga
for analysis, and the results (Ex. P1/PW23 and Ex. P1/PW24) were
issued stating that human semen was detected in the lower
trousers, underwear of the victim and underwear of the accused.
The DNA profile obtained from the trousers and underwear of the
victim matched the DNA profile of the accused. The statements of
proseuction witnesses were recorded as per their version, and
after the completion of the investigation, the challan was
prepared and presented before the Court.
3. The learned Trial Court charged the accused with the
commission of offences punishable under Sections 363 and 366
of the IPC and Section 6 of the POCSO Act, to which the accused
pleaded not guilty and claimed to be tried.
4. The prosecution examined 24 witnesses to prove its
case. The father of the victim (PW1) reported the matter to the
police. Shakti Chand (PW2), Rupali (PW3) and Surinder Kumar
(PW4) produced the record of the date of birth of the victim. Sahil
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Kumar (PW5) and Deep Raj (PW6) handed over SIM cards issued
in their names to the accused. LHHC Promila Devi (PW7)
accompanied the victim to the hotel and carried the samples to
.
the police station. Dr. Kumar Saurav (PW8) medically examined
the accused. Dr. Deepika (PW9) conducted the medical
examination of the victim. The mother of the victim (PW10)
stated that the victim was missing. She witnessed the recovery of
various articles. Devender Verma (PW11) produced the call detail
records. Bharat Bhushan (PW12) was working as MHC with
whom the case property was deposited. Shammi Kumar (PW13) is
the driver of the taxi in which the accused and the victim
travelled to Mandi. Victim (PW14) narrated the incident. Ravi
Nandan (PW15) is the witness to the recovery of the mobile
phone. Suresh Kumar (PW16) video recorded the statement of the
victim in the Court. Sukhdev Kumar (PW17) is the manager of the
hotel in which the accused and the victim had stayed together. He
produced the record. Birbal (PW18) is the waiter at the hotel.
Inspector Priyanka Chauhan (PW19) recorded the statement of
the victim. HASI Ravi Shankar (PW20) carried the case property
to FSL Junga. Sunil Rana (PW21) signed the FIR. SI Ashwani
Thakur (PW22) conducted the investigation. Dr. Surinder Kumar
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Pal (PW23) and Dr. Arun Sharma (PW24) proved the reports
issued by the FSL.
.
5. The accused in his statement recorded under Section
313 of Cr.P.C. denied the prosecution’s case, except that he was
medically examined. He stated that Shammi Kumar and Pradhan
of the Gram Panchayat are relatives of the victim. The relatives of
the victim deposed falsely against him due to their enmity. No
6.
r to
defence was adduced by the accused.
The learned Trial Court held that the victim was
proved to be a minor on the date of the incident. Statement of
Shammi Kumar (PW13) proved that the accused had hired his taxi
in which the accused and the victim travelled together. They
stayed in a hotel in Manali, where the accused maintained
physical relations with the victim. The statement of the victim
was duly corroborated by the statement of Dr. Deepika (PW9) and
the reports issued by the FSL. The victim was a minor and
incapable of giving consent. Once the foundational facts were
established, the burden shifts upon the accused to disprove the
prosecution’s case. There was nothing on record to rebut this
presumption. The victim’s testimony was satisfactory and could
be relied upon. The defence version that the witnesses Shammi
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Kumar and Pradhan were related to the victim was not sufficient
to discard their testimonies. Therefore, the accused was
convicted and sentenced as aforesaid.
.
7. Being aggrieved by the judgment and order passed by
the learned Trial Court, the accused has filed the present appeal,
asserting that the learned Trial Court erred in convicting and
sentencing the accused. There were material contradictions in
the statements of the prosecution’s witnesses. It was not proved
that the SIM card was being used by the accused. The evidence
regarding the recovery of the clothes was also contradictory, and
the result of the DNA could not have been relied upon. There is no
evidence that the accused had taken/enticed the victim. The
victim stated that she left her home on her own. The victim
accompanied the accused to Chandigarh. She never raised any
protest while going to Manali or Chandigarh or returning to
Dharamshala, which falsifies the prosecution’s case regarding
the kidnapping. The victim was aged 17 years and was studying
in class 12. She had physical relations with the accused before the
incident. The accused cannot be held liable for consensual
intercourse. The integrity of the case property was not
established; therefore, it was prayed that the present appeal be
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allowed and the judgment and order passed by the learned Trial
Court be set aside.
.
8. I have heard Mr. Arjun Lall, learned counsel for the
appellant/accused and Mr. Jitender Sharma, learned Additional
Advocate General, for the respondent/State.
9. Mr. Arjun Lall, learned counsel for the
appellant/accused, submitted that the learned Trial Court erred
in convicting and sentencing the accused. There was no evidence
that the accused had taken/enticed the victim. The evidence
showed that the victim had accompanied the accused on her own.
The learned Trial Court relied upon the report of the analysis, but
the integrity of the case property was not established, and the
reports of analysis could not have been used to convict the
accused. The victim never raised any protest while she was being
taken to Manali, Chandigarh or to the house of the accused,
which shows that the victim was a consenting party. She was 17
years old and knew the accused before the incident. The
consensual relationship between the parties should not be
criminalised under the POCSO Act. Therefore, he prayed that the
present appeal be allowed and the judgment and order passed by
the learned Trial Court be set aside. He relied upon the judgments
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of Hon’ble Apex Court in Shyam Singh Vs. State 2025 SCC Online
Del 990, Nirmal Prem Kumar and anr. Vs. State rep by Inspector
of Police 2024 SCC Online SC 260, S. Varadarajan Vs. State of
.
Madras AIR 1965 SC 942, State (NCT of Delhi) Vs. Vipin Sharma
2023 SCC Online 1456, Ritesh Badrinath Borde Vs. State of
Maharashtra and Anr. 2024 SCC Online Bom 2557 and Tilku alias
Tilak Singh Vs. The State of Uttarakhand 2025 INSC 226 in
support of his submissions.
10. to
Mr. Jitender Sharma, learned Additional Advocate
General, for the respondent/State, submitted that the evidence
on record showed that the accused had taken the victim from her
home to TTS, from where a taxi was hired, in which the victim
was taken to Mandi. Hence, the essential requirement of taking
the victim was duly satisfied. The victim categorically stated that
the accused had committed sexual intercourse with her. She was
a minor on the date of the incident, and her consent is
immaterial. Her testimony was duly corroborated by the
statement of the Medical Officer and the report of the FSL. The
integrity of the case property was duly established. Therefore, he
prayed that the present appeal be dismissed.
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11. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
.
12. The age of the victim was not disputed in the
evidence. Shakti Chand (PW2), who produced the abstract of the
death and birth certificate register. Rupali (PW3), who produced
the Matriculation Certificate, and Surinder Kumar (PW4), who
issued the Certificate of the Gram Panchayat showing the date of
birth of the victim, were not cross-examined at all, which means
that their testimonies are not disputed by the accused. Abstract
of the Death and Birth register (Ex.PW2/B), Matriculation
Certificate (PW3/B), and certificate of Gram Panchayat
(Ex.PW4/B) show the date of birth of the victim as 30.10.2001.
Thus, it was duly proved that the victim was aged less than 18
years old on the date of the incident.
13. The victim (PW14) stated that she was studying in
class 12th in February 2018. The accused proposed to her for
friendship. He came to her house in February 2018 during the
night and maintained physical relations with her despite her
protests. He left the house at around 2-3 a.m. The accused
handed over a mobile phone with a SIM to her. She went to her
aunt’s house at Chandigarh on 15.07.2018 and returned with the
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accused on 01.08.2018, who had met her at the Chandigarh bus
stand. She went to her school on 03.08.2018 at around 08.30 a.m.
The accused told her that they had to go to Manali. The accused
.
came to her home and took her to TTS. He asked her to change
her school uniform in a dilapidated house at TTS. She changed
the uniform. They boarded a taxi at TTS and went to Palampur.
The accused filled the petrol in the taxi at Palampur and paid
₹1000/- for the same. They went to Mandi in a taxi. The taxi
driver refused to take them to Manali. The accused paid the taxi
fare of ₹ 1000/- to the driver. They boarded an HRTC bus at the
bus stand in Mandi and went to Manali. The accused took her to a
hotel in Manali and maintained physical relations with her in the
hotel. She and the accused took a bus to Delhi on 05.08.2018.
They reached Delhi in the evening. They could not stay in Delhi
as the hoteliers were demanding her ID proof. They went to
Chandigarh on 06.08.2018 and stayed at the bus stand in
Chandigarh. They went to Dadh on 07.08.2018 and kept on
roaming around at Chamunda. They boarded a bus for
Dharmshala at night, at around 9-11 p.m. They stayed in the tea
garden during the night. The next morning, the accused took her
to his house. Her father had lodged a missing report with the
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police. The police visited the house of the accused and recovered
her from the house. Her custody was handed over to her mother.
The accused had emotionally blackmailed her that if she did not
.
accede to his request, he would harm himself and commit
suicide. He used to say that someone was blackmailing him that
he would upload her photographs on social media, and the
person was demanding ₹ 2,00,000/-.
14.
She stated in her cross-examination that many
houses exist near her house. She admitted that her uncles and
their family members reside in those houses. She volunteered to
say that all of them have their separate houses. She admitted that
no one had enquired about the mobile phone. She volunteered to
say that the accused had asked her not to disclose/show the
mobile phone to her parents, and they were not aware of the
mobile phone. She was residing on the ground floor. She had not
told her parents that the accused had visited her home and
maintained physical relations with her. She volunteered to say
that the accused used to blackmail her and say that in case of
disclosure of the incident to anyone, he would commit suicide.
She admitted that she had not told this fact to the police. She
admitted that she had told the Court that she had asked the
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accused to elope. She volunteered to say that she had done so at
the instance of the accused, as he had threatened her that he
would cause harm to her and her parents in case this fact was not
.
told to the Court. She denied that the road leading to TTS is busy.
She had taken one pair of clothes with her to Manali. The police
might have taken her clothes. She admitted that she had told the
learned Magistrate that someone was blackmailing her. She
volunteered to say that the accused used to blackmail her as his
SIM number used to appear on her mobile. She admitted that she
had not disclosed to anyone at Manali that the accused had
kidnapped her or had maintained physical relations with her. She
denied that the accused had not taken her and that she was
making a false statement.
15. It was submitted that she did not make any hue and
cry when she was taken to Mandi, Manali, Delhi and Chandigarh.
This submission will not help the accused. It was duly proved on
record by the Matriculation Certificate (Ex.PW3/B) and abstract
of the Death and Birth Register (Ex.PW2/B) that the victim was
born on 30.10.2001; therefore, she was less than 18 years old on
the date of the incident.
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16. Section 361 of the IPC defines kidnapping from lawful
guardianship 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 thelawful 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. It is apparent from the bare perusal of the Section that
the offence of kidnapping is committed against the guardian, and
the consent of the minor is immaterial. It was laid down by the
Hon’ble Supreme Court in Parkash v. State of Haryana, (2004) 1
SCC 339: 2004 SCC (Cri) 290: 2003 SCC OnLine SC 1339 that the
offence of kidnapping is for the protection of the minor and the
only consent of the guardian can take it out of the purview of
Section 361. It was observed at page 342:
“7. …The object of this section seems as much to protect
the minor children from being seduced for improper
purposes as to protect the rights and privileges of
guardians having the lawful charge or custody of their
minor wards. The gravamen of this offence lies in the
taking or enticing of a minor under the age specified in
this section, out of the keeping of the lawful guardian
without the consent of such guardian. The words “takes or
entices any minor … out of the keeping of the lawful
guardian of such minor” in Section 361 are significant. The
use of the word “keeping” in the context connotes the idea
of charge, protection, maintenance and control; further,::: Downloaded on – 27/06/2025 21:29:27 :::CIS
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(2025:HHC:20095)the guardian’s charge and control appears to be
compatible with the independence of action and
movement of the minor, the guardian’s protection and
control of the minor being available, whenever necessity.
arises. On plain reading of this section, the consent of the
minor who is taken or enticed is wholly immaterial; it is
only the guardian’s consent which takes the case out of its
purview. Nor is it necessary that the taking or enticingmust be shown to have been by means of force or fraud.
Persuasion by the accused person, which creates
willingness on the part of the minor to be taken out of the
keeping of the lawful guardian, would be sufficient toattract the section.
8. In State of Haryana v. Raja Ram [(1973) 1 SCC 544: 1973
SCC (Cri) 428] English decisions were noticed by this Court
for the purpose of illustrating the scope of the protectionof minor children and of the sacred right of the parents
and guardians to the possession of their minor children
under the English law. The decisions noticed were R. v. Job
Timmins [169 ER 1260: Bell 276], R. v. Handley [175 ER 890: 1
F & F 648] and R. v. Robb [176 ER 466: 4 F & F 59]. In thefirst case, Job Timmins was convicted of an indictment
framed upon 9 Geo. IV, ch. 31, Section 20 for taking an
unmarried girl under sixteen out of the possession of herfather, and against his will. It was observed by Erle, C.J.,
that the statute was passed for the protection of parentsand for preventing unmarried girls from being taken out
of possession of their parents against their will. Limitingthe judgment to the facts of that case, it was said that no
deception or forwardness on the part of the girl in such
cases could prevent the person taking her away from being
guilty of the offence in question. The second decision is
authority for the view that in order to constitute an
offence under 9 Geo. IV, ch. 31, Section 20, it is sufficient if
by moral force a willingness on the part of the girl to go
away with the prisoner is created; but if her going away
with the prisoner is entirely voluntary, no offence is
committed. The last case was of a conviction under the
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(2025:HHC:20095)inducement by previous promise or persuasion was held
sufficient to bring the case within the mischief of the
statute. In the English statutes, the expression used was
“take out of the possession” and not “out of the keeping”
.
as used in Section 361 IPC. But that expression was
construed in the English decisions not to require actual
manual possession. It was enough if at the time of the
taking the girl continued under the care, charge and
control of the parent — see R. v. Mankletow [(1853) 6 Cox
Criminal Cases 143: 169 ER 678]. These decisions were held
to confirm the view that Section 361 is also designed to
protect the sacred right of the guardians with respect to
their minor wards.
9. The position was again reiterated in Thakorlal D.
Vadgama v. State of Gujarat [(1973) 2 SCC 413: 1973 SCC (Cri)
835: AIR 1973 SC 2313] wherein it was, inter alia, observed
as follows : (SCC p. 421, para 10)
“The expression used in Section 361 IPC is ‘whoever takes
or entices any minor’. The word ‘takes’ does not
necessarily connote taking by force, and it is not confined
only to the use of force, actual or constructive. This word
merely means ‘to cause to go’, ‘to escort’ or ‘to get into
possession’. No doubt it does mean physical taking, but
not necessarily by use of force or fraud. The word ‘entice’
seems to involve the idea of inducement or allurement by
giving rise to hope or desire in the other. This can take
many forms, difficult to visualise and describe
exhaustively; some of them may be quite subtle,
depending for their success on the mental state of the
person at the time when the inducement is intended to
operate. This may work immediately, or it may create a
continuous and gradual but imperceptible impression
culminating after some time, in achieving its ultimate
purpose of successful inducement. The two words ‘takes’
and ‘entices’, as used in Section 361 IPC, are, in our
opinion, intended to be read together so that each takes to
some extent its colour and content from the other. The
statutory language suggests that if the minor leaves her
parental home completely uninfluenced by any promise,
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offer or inducement emanating from the guilty party, then
the latter cannot be considered to have committed the
offence as defined in Section 361 IPC.”
18. This position was reiterated in Anversinh v. State of
.
Gujarat, (2021) 3 SCC 12: (2021) 2 SCC (Cri) 18: 2021 SCC OnLine SC
19, and it was held at page 20:
16. A bare perusal of the relevant legal provisions, as
extracted above, shows that the consent of the minor is
immaterial for purposes of Section 361 IPC. Indeed, asborne out through various other provisions in the IPC and
other laws like the Contract Act, 1872, minors are deemed
incapable of giving lawful consent. [Satish Kumar Jayanti
Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359, para 15 :
(2015) 3 SCC (Cri) 108] Section 361 IPC, particularly, goes
beyond this simple presumption. It bestows the ability to
make crucial decisions regarding a minor’s physical safety
upon his/her guardians. Therefore, a minor girl’s
infatuation with her alleged kidnapper cannot, by itself, beallowed as a defence, for the same would amount to
surreptitiously undermining the protective essence of the
offence of kidnapping.
19. Therefore, the consent of the minor would be
immaterial, and no advantage can be derived from the fact that
the victim had not raised any protests when she was with the
accused.
20. It was submitted that the victim left her home
voluntarily, and no offence of kidnapping is made out. This
submission is not acceptable. It was held by the Orissa High
Court in Bagula Naik v. State of Orissa, 1999 SCC OnLine Ori 118:
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(1999) 87 CLT 808: 1999 Cri LJ 2077, that even if the victim had left
the home voluntarily, but the accused had taken her to his house
or some other place, the offence punishable under Section 363 of
.
IPC would be attracted. It was observed at page 810:
“6. Second contention of the petitioner, as noted above, is
twofold. Learned counsel for the petitioner, while arguing
on this point, has contended that p.w. 3 having left her
house of her own, the petitioner cannot be accused ofkidnapping for merely accompanying her to certain
places, and therefore, his conduct cannot be termed as
kidnapping or abduction. In that context, he relied upon
the decisions reported in A.I.R. 1965 S.C. 942: S.Vardarajan v. State of Madras; 1979 Crl. L.J. 1094: Pramod
Kumar v. State and 1983 Crl. L.J. 1819: Lawrence
Kanandas v. The State of Maharashtra.
7. In the case of S. Vardarajan (supra), a college-going girl
on the verge of majority from her side telephoned theaccused and thereafter both of them went to the Sub-
Registrar’s office for registering the marriage agreement.
The Apex Court judged the totality of the facts andcircumstances and held it not to be a case of kidnapping.
No such evidence is available in the record so far, thepresent case is concerned, that it is at the instance of the
p.w. 3 that the petitioner took her to his house or Athgarh.
Hence, the aforesaid ratio is not applicable to the presentcase.
8. In the case of Pramod Kumar (supra), a grown-up boy
aged about 16 years, committing theft of gold ornaments
from his house, moved away from his town along with the
accused. Prosecution alleged that said accused was
instrumental in the kidnapping of that boy. From the facts
and evidence available in the record, it was found that the
boy, of his own not only left the house but also
accompanied the accused and voluntarily stayed with him
for a considerable period. Under such circumstances, the::: Downloaded on – 27/06/2025 21:29:27 :::CIS
21
(2025:HHC:20095)Allahabad High Court held it was not a case of kidnapping.
Needless to say, the facts of that case are quite
distinguishable from the present case.
9. In the case of Lawrence Kanandas (supra), a school-
.
going girl aged about 13 to 14, after attending the
examination on the date of kidnapping, went away with
the accused-petitioner, and he was convicted for the
offence u/s. 363, I.P.C.. Learned Single Judge of BombayHigh Court, taking into consideration the evidence
suggesting to the fact that it was the girl who had induced
the accused to come to her School and to take her to
different places and also the other facts and circumstancesexisting in that regard, found the appellant not guilty.
Facts and circumstances of the present case are not
similar since there is no evidence worth the name to make
an inference that p.w. 3 ever requested the petitioner totake her away, either to his house or to Athgarh. Even the
accused has not taken such a stand while cross-examining
witnesses or giving his statement u/s 313, Cr. P.C.. Hence,
the aforesaid decision of the Bombay High Court is of no
help to the petitioner.
21. It was laid down by Hon’ble Supreme Court in State of
Haryana v. Raja Ram, (1973) 1 SCC 544: 1973 SCC (Cri) 428: 1972
SCC OnLine SC 497, that accused cannot escape conviction
because he had not gone to the house of the victim to bring her, if
the victim was persuaded by the act of the accused in leaving the
home, he would be guilty. It was observed at page 549: –
“9. In the present case the evidence of the prosecutrix as
corroborated by the evidence of Narain Das, PW 1 (her
father), Abinash Chander PW 3 (her brother) and Smt
Tarawanti PW 4 (her mother) convincingly establishes
beyond reasonable doubt: (1) that Jai Narain had tried to
become intimate with the prosecutrix and to seduce her to::: Downloaded on – 27/06/2025 21:29:27 :::CIS
22
(2025:HHC:20095)go and live with him and on objection having been raised
by her father who asked Jai Narain not to visit his house,
Jai Narain started sending message to the prosecutrix
through Raja Ram, respondent; (2) that Raja Ram,.
respondent, had been asking the prosecutrix to be ready to
accompany Jai Narain; (3) that at about 12 noon on April 4,
Raja Ram went to see the prosecutrix at her house and
asked her to visit his house when he would convey JaiNarain’s message to her; (4) that on the same day after
some time Sona was sent by her father to the house of the
prosecutrix to fetch her to his house where the prosecutrix
was informed that Jai Narain would come that night andwould take the prosecutrix away and (5) that Raja Ram
accordingly asked the prosecutrix to visit his house at
about midnight so that she may be entrusted to Jai Narain.
This evidence was believed by the learned AdditionalSessions Judge who convicted the respondent, as already
noticed. The learned Single Judge also did not disbelieve
her statement. Indeed, in the High Court, the learned
Counsel for Raja Ram had proceeded on the assumption
that the evidence of the prosecutrix is acceptable, theargument being that even accepting her statement to be
correct, no offence was made out against Raja Ram. Once
the evidence of the prosecutrix is accepted, in our opinion,Raja Ram cannot escape conviction for the offence of
kidnapping her from her father’s lawful guardianship. Itwas not at all necessary for Raja Ram to have gone to the
house of the prosecutrix to bring her from there on the
midnight in question. It was sufficient if he had earlierbeen soliciting or persuading her to leave her father’s
house to go with him to Jai Narain. It is fully established
on the record that he had been conveying messages from
Jai Narain to the prosecutrix and had himself been
persuading her to accompany him to Jai Narain’s place,
where he would hand her over to him. Indisputably the last
message was conveyed by him to the prosecutrix when she
was brought by his daughter Sona from her own house to
his and it was pursuant to this message that the
prosecutrix decided to leave her father’s house on the::: Downloaded on – 27/06/2025 21:29:27 :::CIS
23
(2025:HHC:20095)midnight in question for going to Raja Ram’s house for the
purpose of being taken to Jai Narain’s place. On these
facts, it is difficult to hold that Raja Ram was not guilty of
taking or enticing the prosecutrix out of the keeping of her.
father’s lawful guardianship. Raja Ram’s action was the
proximate cause of the prosecutrix going out of the
keeping of her father, and indeed, but for Raja Ram’s
persuasive offer to take her to Jai Narain the prosecutrixwould not have gone out of the keeping of her father, who
was her lawful guardian, as she actually did. Raja Ram
actively participated in the formation of the intention of
the prosecutrix to leave her father’s house. The fact thatthe prosecutrix was easily persuaded to go with Raja Ram
would not prevent him from being guilty of the offence of
kidnapping her. Her consent or willingness to accompany
Raja Ram would be immaterial, and it would be equally soeven if the proposal to go with Raja Ram had emanated
from her. There is no doubt a distinction between taking
and allowing a minor to accompany a person. But the
present is not a case of the prosecutrix herself leaving her
father’s house without any inducement by Raja Ram, whomerely allowed her to accompany him.”
22. Similarly, it was held in Anversinh v. State of Gujarat,
(2021) 3 SCC 12: (2021) 2 SCC (Cri) 18: 2021 SCC OnLine SC 19 that
where the accused had the intent to marry the victim, her
enticement was duly proved. It was observed at page 20:-
“13. A perusal of Section 361 IPC shows that it is necessary
that there be an act of enticing or taking, in addition to
establishing the child’s minority (being sixteen for boys
and eighteen for girls) and care/keep of a lawful guardian.
Such “enticement” need not be direct or immediate in
time and can also be through subtle actions like winning
over the affection of a minor girl. [Thakorlal D.
Vadgama v. State of Gujarat, (1973) 2 SCC 413, para 10: 1973
SCC (Cri) 835] However, mere recovery of a missing minor::: Downloaded on – 27/06/2025 21:29:27 :::CIS
24
(2025:HHC:20095)from the custody of a stranger would not ipso facto
establish the offence of kidnapping. Thus, where the
prosecution fails to prove that the incident of removal was
committed by or at the instigation of the accused, it would.
be nearly impossible to bring the guilt home as happened
in King Emperor v. Gokaran [King Emperor v. Gokaran, 1920
SCC OnLine Oudh JC 32: AIR 1921 Oudh 226]
and Emperor v. Abdur Rahman [Emperor v. Abdur Rahman,1916 SCC OnLine All 63: AIR 1916 All 210].
23. In the present case, the victim specifically stated that
the accused had told her that they had to go to Manali. She also
stated that the accused used to emotionally blackmail her and
threatened her to cause harm to himself, in case the victim did
not accede to his request. Therefore, it is proved that the accused
had created the circumstances, which resulted in her leaving the
house with the accused. Hence, the fact that the victim had left
her home voluntarily will not help the accused.
24. In S. Varadarajan (supra), the victim left her home
with no intention to return, and the accused permitted her to
accompany him to his home. It was held by the Hon’ble Supreme
Court that allowing a minor to accompany a person does not
amount to taking. In the present case, the victim had left the
home at the instance of the accused, and it is not a case where the
victim had left the home on her own, and the accused had
permitted her to accompany her. The statement of the victim to
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25
(2025:HHC:20095)
this effect is duly corroborated by the evidence on record, which
shows that the accused had taken her to TTS in a vehicle and
thereafter from TTS to Mandi in a taxi. There is no evidence that
.
the victim was found abandoned outside her home, and the
accused had merely allowed her to accompany him; rather, it
shows that they had a prior plan of going to Manali, and this plan
was materialised by the acts of the accused in taking the victim to
TTS and thereafter to Manali. Hence, the judgments of
S. Varadarajan (supra), Vipin Sharma (supra), Ritesh Badrinath
Borde (supra) and Tilku alias Tilak Singh (supra) do not apply to
the present case, and no advantage can be derived from these
judgments.
25. The victim categorically stated that the accused
maintained physical relations with her. This was duly
corroborated by the statement of Dr. Deepika (PW9), who
conducted the medical examination of the victim and found that
the possibility of sexual intercourse could not be ruled out. She
preserved the samples and handed them over to the police
official accompanying the victim. The clothes of the accused and
the victim were seized by SI Ashwani Thakur (PW22) vide memo
(Ex.PW1/B) when the victim was recovered from the house of the
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26
(2025:HHC:20095)
accused. These samples and clothes were sent to FSL, and as per
the report (Ex.P1/PW23), human semen was detected on the
trousers/lower, trousers/pyjama, lower/pyjama and underwear
.
of the victim and the underwear of the accused. As per the report
of the analysis (Ex.P1/PW24), the DNA profile obtained from the
trousers/lower and underwear of the victim was consistent with
the DNA profile obtained from the blood sample of the accused
and the victim. Therefore, it was duly proved by these reports
that human semen and the DNA of the accused were found in the
clothes of the victim. The accused did not provide any
explanation for the presence of his semen & DNA in the clothes of
the victim, and the explanation provided by the victim has to be
accepted as correct, that the human semen/DNA appeared on her
clothes as a result of physical relations maintained by the
accused with her.
26. It was submitted that the integrity of the case
property was not established. This is not acceptable. The report
of the analysis (Ex.P1/PW23) shows that the parcels were received
for examination in the biology and serology divisions. The seals
on the parcels were intact and tallied with the specimen sent with
the docket. It was held in Baljit Sharma vs. State of H.P 2007 HLJ
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27
(2025:HHC:20095)
707, where the report of analysis shows that the seals were intact,
the case of the prosecution that the case property remained intact
is to be accepted as correct. It was observed:
.
“A perusal of the report of the expert Ex.PW8/A shows
that the samples were received by the expert in a safemanner, and the sample seal was separately sent, tallied
with the specimen impression of a seal taken separately.
Thus, there was no tampering with the seal, and the seal
impressions were separately taken and sent to the expertalso.”
27. Similar is the judgment in Hardeep Singh vs State of
Punjab 2008(8) SCC 557, wherein it was held:
“It has also come to evidence that to date, the parcels of
the sample were received by the Chemical Examiner, and
the seal put on the said parcels was intact. That itselfproves and establishes that there was no tampering with
the previously mentioned seal in the sample at any stage,
and the sample received by the analyst for chemical
examination contained the same opium, which wasrecovered from the possession of the appellant. In that
view of the matter, a delay of about 40 days in sending
the samples did not and could not have caused any
prejudice to the appellant.”
28. In State of Punjab vs Lakhwinder Singh 2010 (4) SCC
402, the High Court had concluded that there could have been
tampering with the case property since there was a delay of seven
days in sending the report to FSL. It was laid down by the Hon’ble
Supreme Court that the case property was produced in the Court,
and there was no evidence of tampering. Seals were found to be
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28
(2025:HHC:20095)
intact, which would rule out the possibility of tampering. It was
observed:
.
“The prosecution has been able to establish and prove that
the aforesaid bags, which were 35 in number, contained
poppy husk, and accordingly, the same were seized after
taking samples therefrom, which were properly sealed.
The defence has not been able to prove that the aforesaid
seizure and seal put in the samples were in any manner
tampered with before it was examined by the Chemical
Examiner. There was merely a delay of about seven days insending the samples to the Forensic Examiner, and it is not
proved as to how the aforesaid delay of seven days has
affected the said examination, when it could not be proved
that the seal of the sample was in any manner tamperedwith. The seal having been found intact at the time of the
examination by the Chemical Examiner and the said fact
having been recorded in his report, a mere observation by
the High Court that the case property might have been
tampered with, in our opinion, is based on surmises andconjectures and cannot take the place of proof.
17. We may at this stage refer to a decision of this Court in
Hardip Singh v. State of Punjab reported in (2008) 8 SCC 557in which there was a delay of about 40 days in sending the
sample to the laboratory after the same was seized. In the
said decision, it was held that in view of cogent and
reliable evidence that the opium was seized and sealed andthat the samples were intact till they were handed over to
the Chemical Examiner, the delay itself was held to be not
fatal to the prosecution case. In our considered opinion,
the ratio of the aforesaid decision squarely applies to the
facts of the present case in this regard.
18. The case property was produced in the Court, and there
is no evidence to show that the same was ever tampered
with.”
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29
(2025:HHC:20095)
29. Similar is the judgment of the Hon’ble Supreme Court
in Surinder Kumar vs State of Punjab (2020) 2 SCC 563, wherein it
was held: –
.
“10. According to learned senior counsel for the appellant,
Joginder Singh, ASI, to whom Yogi Raj, SHO (PW-3),handed over the case property for producing the same
before the Illaqa Magistrate and who returned the same to
him after such production was not examined, as such, link
evidence, was incomplete. In this regard, it is to be noticedthat Yogi Raj, SHO, handed over the case property to
Joginder Singh, ASI, for production before the Court. After
producing the case property before the Court, he returned
the case property to Yogi Raj, SHO (PW-3), with the sealsintact. It is also to be noticed that Joginder Singh, ASI, was
not in possession of the seals of either the investigating
officer or Yogi Raj, SHO. He produced the case property
before the Court on 13.09.1996 vide application Ex.P-13.
The concerned Judicial Magistrate of First Class, afterverifying the seals on the case property, passed the order
Ex.P-14 to the effect that since there was no judicial
malkhana at Abohar, the case property was ordered to bekept in safe custody, in Police Station Khuian Sarwar, till
further orders. Since Joginder Singh, ASI, was not inpossession of the seals of either the SHO or the
Investigating Officer, the question of tampering with the
case property by him did not arise at all.
11. Further, he has returned the case property, after
production of the same, before the Illaqa Magistrate, with
the seals intact, to Yogi Raj, SHO. In that view of the
matter, the Trial Court and the High Court have rightly
held that the non-examination of Joginder Singh did not,
in any way, affect the case of the prosecution. Further, it is
evident from the report of the Chemical Examiner, Ex.P-10,
that the sample was received with seals intact and that the
seals on the sample tallied with the sample seals. In that view
of the matter, the chain of evidence was complete.”
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30
(2025:HHC:20095)
(Emphasis supplied)
30. Therefore, the submission that the integrity of the
case property has not been established cannot be accepted.
.
31. It was submitted that the recovery of clothes is
suspicious, as the victim’s clothes were taken into possession by
the police from the house of the accused and the clothes were
also seized by the Medical Officer. This submission will not help
the accused. The victim was wearing some clothes at the time of
her recovery, and not all her clothes were seized by the police.
She handed over the clothes worn by her to the Medical Officer,
who conducted her medical examination, and this aspect will not
make the prosecution’s case suspect.
32. It was submitted that the victim had stated in her
statement before the learned Magistrate that they went from
Chandigarh to Manali and thereafter to Dharmshala, which is
contrary to her statement on oath that the victim and the accused
went to Dadh from Chandigarh. This submission will not help the
accused. The attention of the victim was not drawn to the
previous statement recorded by the learned Magistrate, and it is
impermissible to rely upon the statement recorded by the
learned Magistrate to contradict the witness. It was laid down by
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31
(2025:HHC:20095)
the Hon’ble Supreme Court in Binay Kumar Singh Versus State of
Bihar, 1997 (1) SCC 283, that if a witness is to be contradicted with
his previous statement, his attention must be drawn towards it.
.
It was observed: –
“11. The credit of a witness can be impeached by proof of
any statement which is inconsistent with any part of his
evidence in Court. This principle is delineated in S. 155 (3)
of the Evidence Act, and it must be borne in mind whenreading S. 145, which consists of two limbs. It is provided
in the first limb of S.145 that a witness may be cross-
examined as to the previous statement made by him
without such writing being shown to him but the secondlimb provides that “if it is intended to contradict him by
the writing his attention must before the writing can be
provided, be called to those parts of it which are to be used
for the purpose of contradicting him.” There is thus a
distinction between the two vivid limbs, though subtle itmay be. The first limb does not envisage impeaching the
credit of a witness, but it merely enables the opposite party
to cross-examine the witness with reference to theprevious statements made by him. He may at that stage
succeed in eliciting materials to his benefit through suchcross-examination even without resorting to the
procedure laid down in the second limb. But if the witness
disowns having made any statement which is inconsistentwith his present stand his testimony in Court on that score
would not be vitiated until the cross-examiner proceeds to
comply with the procedure prescribed in the second limb
of S. 145.
12. In Bhagwan Singh‘s case (AIR 1952 SC 214), Vivian Bose,
J. pointed out in paragraph 25 that during the cross-
examination of the witnesses concerned the formalities
prescribed by S. 145 are complied with. The cross-
examination, in that case, indicated that every
circumstance intended to be used as a contradiction was::: Downloaded on – 27/06/2025 21:29:27 :::CIS
32
(2025:HHC:20095)put to him point by point and passage by passage. Learned
Judges were called upon to deal with an argument that
witnesses’ attention should have been specifically drawn
to that passage in addition thereto. Their Lordships were,.
however, satisfied in that case that the procedure adopted
was in substantial compliance with S. 145, and hence held
that all that is required is that the witness must be treated
fairly and must be afforded a reasonable opportunity ofexplaining the contradictions after his attention has been
drawn to them in a fair and reasonable manner. On the
facts of that case, there is no dispute with the proposition
laid therein.
13. So long as the attention of PW 32 (Sukhdev Bhagat) was
not drawn to the statement attributed to him as recorded
by DW-10 (Nawal Kishore Prasad) we are not persuaded to
reject the evidence of PW-32 that he gave Ex. 14 statementat the venue of occurrence and that he had not given any
other statement earlier thereto.”
33. A similar view was taken in Alauddin v. State of Assam,
2024 SCC OnLine SC 760 wherein it was observed:
“7. When the two statements cannot stand together, they
become contradictory statements. When a witness makes a
statement in his evidence before the Court which isinconsistent with what he has stated in his statement
recorded by the Police, there is a contradiction. When a
prosecution witness whose statement under Section 161(1)or Section 164 of CrPC has been recorded states factual
aspects before the Court which he has not stated in his
prior statement recorded under Section 161(1) or Section
164 of CrPC, it is said that there is an omission. There will
be an omission if the witness has omitted to state a fact in
his statement recorded by the Police, which he states
before the Court in his evidence. The explanation to
Section 162 CrPC indicates that an omission may amount
to a contradiction when it is significant and relevant. Thus,
every omission is not a contradiction. It becomes a
contradiction provided it satisfies the test laid down in the::: Downloaded on – 27/06/2025 21:29:27 :::CIS
33
(2025:HHC:20095)explanation under Section 162. Therefore, when an
omission becomes a contradiction, the procedure provided
in the proviso to sub-Section (1) of Section 162 must be
followed for contradicting witnesses in the cross-
.
examination.
8. As stated in the proviso to sub-Section (1) of section 162,
the witness has to be contradicted in the manner provided
under Section 145 of the Evidence Act. Section 145 readsthus:
“145. Cross-examination as to previous statements
in writing.–A witness may be cross-examined as to
previous statements made by him in writing orreduced into writing, and relevant to matters in
question, without such writing being shown to him,
or being proved; but, if it is intended to contradicthim by the writing, his attention must, before the
writing can be proved, be called to those parts of itwhich are to be used for the purpose of contradicting
him.”
The Section operates in two parts. The first part provides
that a witness can be cross-examined as to his previous
statements made in writing without such writing being
shown to him. Thus, for example, a witness can be cross-
examined by asking whether his prior statement exists.
The second part is regarding contradicting a witness.
While confronting the witness with his prior statement to
prove contradictions, the witness must be shown his prior
statement. If there is a contradiction between the
statement made by the witness before the Court and what
is recorded in the statement recorded by the police, the
witness’s attention must be drawn to specific parts of his
prior statement, which are to be used to contradict him.
Section 145 provides that the relevant part can be put to
the witness without the writing being proved. However,
the previous statement used to contradict witnesses must
be proved subsequently. Only if the contradictory part of
his previous statement is proved the contradictions can be
said to be proved. The usual practice is to mark the portion
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(2025:HHC:20095)
or part shown to the witness of his prior statement
produced on record. Marking is done differently in
different States. In some States, practice is to mark the
beginning of the portion shown to the witness with an
.
alphabet and the end by marking with the same alphabet.
While recording the cross-examination, the Trial Court
must record that a particular portion marked, for example,
as AA was shown to the witness. Which part of the prior
statement is shown to the witness for contradicting him
has to be recorded in the cross-examination. If the witness
admits to having made such a prior statement, that
portion can be treated as proved. If the witness does not
admit the portion of his prior statement with which he is
confronted, it can be proved through the Investigating
Officer by asking whether the witness made a statement
that was shown to the witness. Therefore, if the witness is
intended to be confronted with his prior statement
reduced into writing, that particular part of the statement,
even before it is proved, must be specifically shown to the
witness. After that, the part of the prior statement used to
contradict the witness has to be proved. As indicated
earlier, it can be treated as proved if the witness admits to
having made such a statement, or it can be proved in the
cross-examination of the concerned police officer. The
object of this requirement in Section 145 of the Evidence
Act of confronting the witness by showing him the
relevant part of his prior statement is to give the witness a
chance to explain the contradiction. Therefore, this is a
rule of fairness.
9. If a former statement of the witness is inconsistent with
any part of his evidence given before the Court, it can be
used to impeach the credit of the witness in accordance
with clause (3) of Section 155 of the Evidence Act, which
reads thus:
“155. Impeaching credit of witness. — The credit of
a witness may be impeached in the following ways
by the adverse party, or, with the consent of the
Court, by the party who calls him–
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(1) ……………………………………….
(2) ………………………………………
(3) by proof of former statements inconsistent
with any part of his evidence which is liable.
to be contradicted.”
It must be noted here that every contradiction or omission
is not a ground to discredit the witness or to disbelieve
his/her testimony. A minor or trifle omission or
contradiction brought on record is not sufficient to
disbelieve the witness’s version. Only when there is a
material contradiction or omission can the Court
disbelieve the witness’s version either fully or partially.
What is a material contradiction or omission, depending
upon the facts of each case? Whether an omission is a
contradiction also depends on the facts of each individual
case.
10. We are tempted to quote what is held in a landmark
decision of this Court in the case of Tahsildar Singh v. State
of U.P., 1959 Supp (2) SCR 875. Paragraph 13 of the said
decision reads thus:
“13. The learned counsel’s first argument is based
upon the words “in the manner provided bySection 145 of the Indian Evidence Act, 1872″ found in
Section 162 of the Code of Criminal Procedure. Section145 of the Evidence Act, it is said, empowers the
accused to put all relevant questions to a witness
before his attention is called to those parts of thewriting with a view to contradict him. In support of
this contention, reliance is placed upon the judgment
of this Court in Shyam Singh v. State of Punjab [(1952)
1 SCC 514: 1952 SCR 812]. Bose, J. describes the
procedure to be followed to contradict a witness under
Section 145 of the Evidence Act, thus at p. 819:
Resort to Section 145 would only be
necessary if the witness denies that he made
the former statement. In that event, it would
be necessary to prove that he did, and if the::: Downloaded on – 27/06/2025 21:29:27 :::CIS
36
(2025:HHC:20095)former statement was reduced to writing, then
Section 145 requires that his attention must be
drawn to these parts, which are to be used for
contradiction. But that position does not arise.
when the witness admits the former
statement. In such a case, all that is necessary
is to look to the former statement of which no
further proof is necessary because of theadmission that it was made.”
It is unnecessary to refer to other cases
wherein a similar procedure is suggested for
putting questions under Section 145 of the Indian
Evidence Act, for the said decision of this Court
and similar decisions were not considering the
procedure in a case where the statement in
writing was intended to be used for contradiction
under Section 162 of the Code of Criminal
Procedure. Section 145 of the Evidence Act is in two
parts: the first part enables the accused to cross-
examine a witness as to a previous statement made
by him in writing or reduced to writing without such
writing being shown to him; the second part deals
with a situation where the cross-examination
assumes the shape of contradiction: in other words,
both parts deal with cross-examination; the first
part with cross-examination other than by way of
contradiction, and the second with cross-
examination by way of contradiction only. The
procedure prescribed is that, if it is intended to
contradict a witness by the writing, his attention
must, before the writing can be proved, be called to
those parts of it which are to be used for the purpose
of contradicting him. The proviso to Section 162 of
the Code of Criminal Procedure only enables the
accused to make use of such a statement to
contradict a witness in the manner provided by
Section 145 of the Evidence Act. It would be doing
violence to the language of the proviso if the said
statement be allowed to be used for the purpose of
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cross-examining a witness within the meaning of
the first part of Section 145 of the Evidence Act. Nor
are we impressed by the argument that it would not
be possible to invoke the second part of Section 145
.
of the Evidence Act without putting relevant
questions under the first part thereof. The difficulty
is more imaginary than real. The second part of
Section 145 of the Evidence Act clearly indicates the
simple procedure to be followed. To illustrate: A says
in the witness box that B stabbed C; before the
police, he had stated that D stabbed C. His attention
can be drawn to that part of the statement made
before the police which contradicts his statement in
the witness box. If he admits his previous statement,
no further proof is necessary; if he does not admit it,
the practice generally followed is to admit it, subject
to proof by the police officer. On the other hand, the
procedure suggested by the learned counsel may
be illustrated thus: If the witness is asked “Did
you say before the police officer that you saw a
gas light?” and he answers “Yes”, then the
statement which does not contain such recital is
put to him as a contradiction. This procedure
involves two fallacies: one is that it enables the
accused to elicit by a process of cross-
examination what the witness stated before the
police officer. If a police officer did not make a
record of a witness’s statement, his entire
statement could not be used for any purpose,
whereas if a police officer recorded a few
sentences, by this process of cross-examination,
the witness’s oral statement could be brought on
record. This procedure, therefore, contravenes
the express provision of Section 162 of the Code.
The second fallacy is that by the illustration
given by the learned counsel for the appellants,
there is no self-contradiction of the primary
statement made in the witness box, for the
witness has not yet made on the stand any
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assertion at all which can serve as the basis. The
contradiction, under the section, should be
between what a witness asserted in the witness
box and what he stated before the police officer,
.
and not between what he said he had stated
before the police officer and what he actually
made before him. In such a case, the question
could not be put at all: only questions to
contradict can be put, and the question here
posed does not contradict; it leads to an answer
which is contradicted by the police statement.
This argument of the learned counsel based upon
Section 145 of the Evidence Act is, therefore, not
of any relevance in considering the express
provisions of Section 162 of the Code of Criminal
Procedure.” (emphasis added)
This decision is a locus classicus, which will continue to
guide our Trial Courts. In the facts of the case, the learned
Trial Judge has not marked those parts of the witnesses’
prior statements based on which they were sought to be
contradicted in the cross-examination.”
34. It was held in Anees v. State (NCT of Delhi), 2024 SCC
OnLine SC 757 that the Courts cannot suo motu take cognisance of the
contradiction and the same has to be brought on record as per the law.
It was observed:
“64. The court cannot suo motu make use of statements to
police not proved and ask questions with reference to
them which are inconsistent with the testimony of the
witness in the court. The words ‘if duly proved’ used in
Section 162 Cr. P.C. clearly show that the record of the
statement of witnesses cannot be admitted in evidence
straightaway, nor can be looked into, but they must be
duly proved for the purpose of contradiction by eliciting
admission from the witness during cross-examination
and also during the cross-examination of the::: Downloaded on – 27/06/2025 21:29:27 :::CIS
39
(2025:HHC:20095)Investigating Officer. The statement before the
Investigating Officer can be used for contradiction, but
only after strict compliance with Section 145 of the
Evidence Act, that is, by drawing attention to the parts.
intended for contradiction.
65. Section 145 of the Evidence Act reads as under:
“145. Cross-examination as to previous statements in
writing.– A witness may be cross-examined as toprevious statements made by him in writing or reduced
into writing, and relevant to matters in question, without
such writing being shown to him, or being proved; but, if it
is intended to contradict him by the writing, his attentionmust, before the writing can be proved, be called to those
parts of it which are to be used for the purpose of
contradicting him.”
66. Under Section 145 of the Evidence Act when it is
intended to contradict the witness by his previous
statement reduced into writing, the attention of such
witness must be called to those parts of it which are to be
used for the purpose of contradicting him, before the
writing can be used. While recording the deposition of a
witness, it becomes the duty of the trial court to ensure
that the part of the police statement with which it is
intended to contradict the witness is brought to the notice
of the witness in his cross-examination. The attention of
the witness is drawn to that part and this must be reflected
in his cross-examination by reproducing it. If the witness
admits the part intended to contradict him, it stands
proved and there is no need for further proof of
contradiction and it will be read while appreciating the
evidence. If he denies having made that part of the
statement, his attention must be drawn to that statement
and must be mentioned in the deposition. By this process,
the contradiction is merely brought on record, but it is yet
to be proved. Thereafter, when the Investigating Officer is
examined in the court, his attention should be drawn to
the passage marked for the purpose of contradiction, it
will then be proved in the deposition of the Investigating
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Officer who, again, by referring to the police statement
will depose about the witness having made that statement.
The process again involves referring to the police
statement and culling out the part with which the maker
.
of the statement was intended to be contradicted. If the
witness was not confronted with that part of the
statement with which the defence wanted to contradict
him, then the court cannot suo motu make use of
statements to police not proved in compliance with
Section 145 of the Evidence Act, that is, by drawing
attention to the parts intended for contradiction.”
[See: V.K. Mishra v. State of Uttarakhand : ((2015) 9 SCC 588]
35.
It was submitted that Deep Raj (PW6) did not support
the prosecution’s case that the accused was using the SIM
obtained by him (Deep Raj). This aspect will not make any
difference. The use of the SIM would have been corroborative.
However, the statement of the victim is satisfactory and does not
require any corroboration; hence, the fact that Deep Raj did not
support the prosecution’s case regarding the handing over of the
SIM will not make the prosecution’s case suspect.
36. Therefore, it was duly proved on record that the
victim is a child, she was taken out of the keeping of her father to
commit sexual intercourse, and the sexual intercourse was
committed with her. Hence, a presumption will arise that the
accused has committed the offence. Section 29 of the Protection
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of Children from Sexual Offences Act, 2012 reads that where a
person is prosecuted for committing or abetting or attempting to
commit any offence under Sections 3, 5, 7 & 9 of the Act, the
.
Special Court shall presume that such person had committed or
abetted or attempted to commit the offence as the case may be
unless the contrary is proved. This Section was considered by
the Bombay High Court in Amol Dudhram Barsagade vs. State of
Maharashtra 2019 AllMR(Cri) 435, and it was held that once the
foundation of the prosecution case is laid by legally admissible
evidence, it becomes incumbent upon the accused to establish
from the record that he has not committed the offence. It was
observed:-
“5. The learned Additional Public Prosecutor Shri S.S. Doifode
would strenuously contend that the statutory presumption
under Section 29 of the POCSO Act is absolute. The date of birthof the victim, 12.10.2001, is duly proved and is indeed not
challenged by the accused, and the victim, therefore, was a child
within the meaning of Section 2(d) of the POCSO Act, is thesubmission. The submission that the statutory presumption
under Section 29 of the POCSO Act is absolute must be rejected if
the suggestion is that even if foundational facts are not
established, the prosecution can invoke the statutory
presumption. Such an interpretation of Section 29 of the POCSO
Act would render the said provision vulnerable to the vice of
unconstitutionality. The statutory presumption would stand
activated only if the prosecution proves the foundational facts,
and then, even if the statutory presumption is activated, the
burden on the accused is not to rebut the presumption beyond a::: Downloaded on – 27/06/2025 21:29:27 :::CIS
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(2025:HHC:20095)reasonable doubt. Suffice it if the accused is in a position to
create a serious doubt about the veracity of the prosecution case
or the accused brings on record material to render the
prosecution version highly improbable.”
.
37. Similar is the judgment of the Tripura High Court in
Joubansen Tripura v. State of Tripura, 2021 SCC OnLine Tri 176, wherein it
was observed:
“12. Upon meticulous reading of Section 29 and 30 of the POCSO
Act, according to us, prosecution will commence the trial withan additional advantage that there will be presumption of guilt
against the accused person, but, in our considered view, such
presumption cannot form the basis of conviction, if that be so, it
would offend Article 20(3) and 21 of the Constitution of India.
Perhaps, it is not the object of the legislature to incorporate
Sections 29 and 30 under the POCSO Act.
13. As we have said in the first part of this paragraph, the
prosecution will commence trial with an additional advantage ofpresumption against the accused, but the prosecution is legally
bound to establish foundational facts which set the
prosecution’s case in motion. If the prosecution succeeds toestablish the foundational facts, then it will be the obligation of
the accused to prove his innocence, but the standard of proofagain will be on the basis of preponderance of probabilities.
Keeping in view the aforesaid principles, we shall proceed to
decide as to whether the prosecution has been able to establishthe foundational facts of the instant case. Foundational facts in
the POCSO Act include:–
(i) the proof that the victim is a child;
(ii) that the alleged incident has taken place;
(iii) that the accused has committed the offence; and
(iv) whenever physical injury is caused, to establish it with
supporting medical evidence.
14. If the fundamental facts of the prosecution case are laid by the
prosecution by leading legally admissible evidence, the duty of the
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accused is to rebut it by establishing from the evidence on record that
he has not committed the offence. This can be achieved by eliciting
patent absurdities or inherent infirmities in the version of
prosecution or the oral testimony of witnesses or the existence of
.
enmity between the accused and victim or bring out material
contradictions and omissions in the evidence of witnesses, or to
establish that the victim and witnesses are unreliable or that there is
considerable and unexplained delay in lodging the complaint or that
the victim is not a child. The accused may reach that end by
discrediting and demolishing prosecution witnesses by effective
cross-examination. Only if he is not fully able to do so, he needs only
to rebut the presumption by leading defence evidence. Still, whether
to offer himself as a witness is the choice of the accused.
Fundamentally, the process of adducing evidence in a POCSO case
does not substantially differ from any other criminal trial, except
that in a trial under the POCSO Act, the prosecution is additionally
armed with the presumptions and the corresponding obligation on
the accused to rebut the presumption. It is imperative to mention
that in POCSO cases, considering the gravity of sentence and the
stringency of the provisions, an onerous duty is cast on the trial court
to ensure a more careful scrutiny of evidence, especially, when the
evidence let in is the nature of oral testimony of the victim alone and
not corroborated by any other evidence–oral, documentary and
medical. (emphasis supplied)
15. Legally, the duty of the accused to rebut the presumption as
arises only after the prosecution has established the
foundational facts of the offence alleged against the accused.
The yardstick for evaluating the rebuttable evidence is limited to
the scale of preponderance of probability. Once the burden to
rebut the presumption is discharged by the accused through
effective cross-examination or by adducing defence evidence or
by the accused himself tendering oral evidence, what remains is
the appreciation of the evidence let in. Though it may appear that
in the light of presumptions, the burden of proof oscillates between
the prosecution and the accused, depending on the quality of
evidence let in, in practice, the process of adducing evidence in a
POCSO case does not substantially differ from any other criminal
case. Once the recording of prosecution evidence starts, the
cross-examination of the witnesses will have to be undertaken
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by the accused, keeping in mind the duty of the accused to
demolish the prosecution case by an effective cross-
examination and additionally to elicit facts to rebut the statutory
presumption that may arise from the evidence of prosecution
.
witnesses. Practically, the duty of prosecution to establish the
foundational facts and the duty of the accused to rebut
presumption arise, with the commencement of the trial,
progress forward along with the trial and the establishment of
one, extinguishes the other. To that extent, the presumptions
and the duty to rebut presumptions are co-extensive. (emphasis
supplied)
16. If an accused is convicted only on the basis of presumption as
contemplated in Sections 29 and 30 of the POCSO Act, then it
would definitely offend Articles 20(3) and 21 of the Constitution
of India. In my opinion, it was not the object of the legislature.
Presumption of innocence is a human right and cannot per se be
equated with the fundamental right under Article 21 of the
Constitution of India. The Supreme Court, in various decisions,
has held that provisions imposing the reverse burden must not
only be required to be strictly complied with but also may be
subject to proof of some basic facts as envisaged under the
Statute. [See State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR
10: AIR 1961 SC 1808 : (1961) 2 Cri LJ 856].
17. It may safely be said that presumptions under Sections 29
and 30 of the POCSO Act do not take away the primary duty of
prosecution to establish the fundamental facts. This duty is
always on the prosecution and never shifts to the accused.
POCSO Act has no different connotations. Parliament is
competent to place a burden on certain aspects on the accused,
especially those which are within his exclusive knowledge. It is
justified on the ground that prosecution cannot, in the very
nature of things, be expected to know the affairs of the accused.
This is specifically so in the case of sexual offences, where there
may not be any eyewitnesses to the incident. Even the burden on
the accused is also a partial one and is justifiable on the larger
public interest. [State of Bombay v. Kathi Kalu Oghad, (1962) 3
SCR 10: AIR 1961 SC 1808: (1961) 2 Cri LJ 856; Noor Aga v. State of
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45
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Punjab, (2008) 16 SCC 417; Abdul Rashid Ibrahim v. State of Gu-
jarat, (2000) 2 SCC 513]
38. It was laid down by the Hon’ble Supreme Court in
.
Sambhubhai Raisangbhai Padhiyar v. State of Gujarat, (2025) 2 SCC 399:
2024 SCC OnLine SC 3769 that when the prosecution has established
the foundational facts, the burden shifts upon the accused to rebut the
presumption. It was observed at page 413:
34. Sections 29 and 30 of the POCSO Act read as under:
“29. Presumption as to certain offences.–Where a
person is prosecuted for committing or abetting or
attempting to commit any offence under Sections 3, 5,7 and Section 9 of this Act, the Special Court shall
presume, that such person has committed or abetted or
attempted to commit the offence, as the case may be
unless the contrary is proved.
30. Presumption of culpable mental state.–(1) In any
prosecution for any offence under this Act which
requires a culpable mental state on the part of the
accused, the Special Court shall presume the existenceof such mental state but it shall be a defence for the
accused to prove the fact that he had no such mental
state with respect to the act charged as an offence in
that prosecution.
(2) For the purposes of this section, a fact is said to be
proved only when the Special Court believes it to exist
beyond reasonable doubt and not merely when its
existence is established by a preponderance of
probability.”
35. It will be seen that presumption under Section 29 is
available where the foundational facts exist for
commission of an offence under Section 5 of the POCSO Act.
Section 5 of the POCSO Act deals with aggravated
penetrative sexual assault, and Section 6 speaks of
punishment for aggravated penetrative sexual assault.
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Section 3 of the POCSO Act defines what penetrative sexual
assault is. The relevant sections are extracted
hereinbelow:
“3. Penetrative sexual assault.–A person is said to
.
commit “penetrative sexual assault” if–
(a) he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes
the child to do so with him or any other person; or***
5. Aggravated penetrative sexual assault.–(a)-
(h) * * *
(i) whoever commits penetrative sexual assault causing
grievous hurt or causing bodily harm and injury or
injury to the sexual organs of the child; or
***
(m) whoever commits penetrative sexual assault on a
child below twelve years; or
6. Punishment for aggravated penetrative sexual assault.
–(1) Whoever commits aggravated penetrative sexual
assault shall be punished with rigorous imprisonment
for a term which shall not be less than twenty years,
but which may extend to imprisonment for life, which
shall mean imprisonment for the remainder of natural
life of that person, and shall also be liable to fine, or
with death.
(2) The fine imposed under sub-section (1) shall be just
and reasonable and paid to the victim to meet the
medical expenses and rehabilitation of such victim.”
36. The manner in which the appellant enticed the
deceased child under the pretext of buying ice cream in
spite of being dissuaded by the aunt (PW 10) and without
the consent of the lawful guardians also makes out an
offence under Section 364 IPC. The aggravated penetrative
sexual assault clearly establishes an offence under Section
377 IPC and Sections 4 and 6 of the POCSO Act. The
appellant has not rebutted the presumption by adducing
proof to the contrary.”
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39. The foundational facts were explained by the Madras
High Court in B. Mooventhan v. State of T.N., 2023 SCC OnLine Mad
5241 as under:
.
30. In Criminal jurisprudence, the prosecution has to
prove the case. However, in view of Section 29 ofthe POCSO Act, where a person is prosecuted for
committing or abetting or attempting to commit any
offence under Sections 3, 5, 7 and 9 of the POCSO Act, the
Court shall presume that such person has committed orabetted or attempted to commit the offence as the case
may be unless the contrary is proved. The presumption to
be drawn under Sections 29 and 30 of the POCSO do not
absolve the prosecution of its duty to establish thefoundational facts. The prosecution has to establish
the prima facie case by adducing evidence. Only when the
fundamental and primary facts are established by the
prosecution will the accused be under an obligation to
rebut the presumptions by adducing cogent evidencewhere the standard of proof required to rebut the
presumption is a preponderance of probabilities. In short,
the basic, primary and fundamental facts are to beestablished by the prosecution.
31. The term ‘foundational facts’ in the POCSO
Act includes the following:
(i) The victim is a child
(ii) The alleged incident has occurred
(iii) The accused has committed the offence
(iv) Medical evidence to support the physical injury,
if any.”
40. Similar is the judgment in State of Haryana v. Vishal,
2022 SCC OnLine P&H 3827, wherein it was observed:
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17. Learned counsel for the State argued that, in view of
provision of Sections 29 and 30 of the POCSO Act, a
statutory presumption arises against the
respondent/accused, and, the onus is upon him to prove.
his innocence, and that, in the present case, he has failed
to prove his innocence, therefore, the statutory
presumptions stand against him and he is liable to be
convicted for the charges framed against him. A
cumulative reading of Sections 29 and 30 of the POCSO Act
would provide that, once the foundational facts have been
proved by the prosecution, only then is the statutory
presumption raised against the accused, and the onus
shifts upon the accused to prove his innocence. In the
present case, as we have discussed above in detail, the
prosecution has failed to prove the foundational facts
upon which statutory presumption can be raised.
“Presumption” is a rule of law which enables the Court to
presume the existence of a fact on the basis of certain
proved facts. The Court cannot presume the existence of
certain facts in a vacuum. The prosecution has to
discharge its initial burden by proving those facts whichare essential to raise the statutory presumption. In the
case at hand, the prosecution has failed to discharge its
initial onus; therefore, the statutory presumption cannotbe raised at the instance of the prosecution.
41. Thus, the learned Trial Court had rightly held the
accused guilty of the commission of offences punishable under
Section 363, 366 of the IPC and Section 4 of the POCSO Act.
42. It was submitted that the POCSO Act does not
criminalise the consensual physical relations between minors.
Reliance was placed upon the judgment of the Delhi High Court
in Shyam Singh (supra) and Vipin Sharma (supra). This
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submission is not acceptable. The POCSO Act provides that sexual
intercourse with a minor aged less than 18 years is a crime. It is
impermissible for the Court to say that any exception has been
.
created regarding the consensual relationship between the
minors. Once the legislature has not created such an exception,
the Courts cannot create the exception by the process of
interpretation. They are bound to follow the law. In this context,
the statement made by Mahatama Gandhi, in his sedition trial in
1912, is highly relevant when he said:
“The only course open to you, the Judge and the assessors,
is either to resign your posts and thus dissociate
yourselves from evil, if you feel that the law you are called
upon to administer is an evil, and that in reality I aminnocent, or to inflict on me the severest penalty, if you
believe that the system and the law you are assisting to
administer are good for the people of this country, andthat my activity is, therefore, injurious to the common
weal.”
43. Hence, it is impermissible to modify the legislation,
and the Judge is bound to give effect to the legislation as long as
he holds his post. Thus, the submission that an exception should
be created in favour of a consensual relationship between minors
cannot be accepted.
44. Learned Trial Court sentenced the accused to undergo
simple imprisonment for two years and pay a fine of ₹ 2000/- for
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the offence punishable under Section 363 of IPC, simple
imprisonment for three years and pay a fine of ₹ 3000/- for
offence punishable under Section 366 of IPC and simple
.
imprisonment for seven years and pay a fine of ₹ 5000/- for an
offence punishable under Section 4 of the POCSO Act. Section 4 of
the POCSO provided a minimum imprisonment of seven years,
and the learned Trial Court has imposed the minimum
imprisonment; therefore, no further interference is required
with the sentence imposed by the learned Trial Court.
45. No other point was urged.
46. In view of the above, the present appeal fails and the
same is dismissed.
47. Registry is directed to send down the records
alongwith copy of this judgment to the learned Trial Court.
(Rakesh Kainthla)
Judge
21st June, 2025
(Rupsi)
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