Chattisgarh High Court
Kishore Khatik vs State Of Chhattisgarh on 10 February, 2025
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1 / 17
2025:CGHC:7366
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1033 of 2019
Judgment reserved on 19.11.2024
Judgment delivered on 10.02.2025
Kishore Khatik S/o Bannaji Khatik Aged About 30 Years R/o
Village Pachewar, District Tonk Rajasthan, At Present R/o Khatik
Mohalla, Madanganj, Under Over Bridge, Gandhi Nagar,
Kishangarh, District Ajmer, Rajasthan., District : Ajmer,
Rajasthan
... Appellant
versus
State Of Chhattisgarh Through Station House Officer, Police
Station Gudiyari, District Raipur Chhattisgarh., District : Raipur,
Chhattisgarh
... Respondent
----------------------------------------------------------------------------------------
For the Appellant : Mr. K.K. Pandey, Advocate
Respondent/State : Mr. Pramod Shrivastava, Dy. GA
—————————————————————————————-
Hon’ble Shri Justice Narendra Kumar Vyas
CAV Judgment
\
1. This Criminal Appeal under Section 374 (2) of CrPC has been
filed against the judgment of conviction and order of sentence
dated 08.04.2019 passed by Special Judge (Protection of
Children from Sexual Offences Act) Raipur in Special Criminal
Digitally
signed by
SANTOSH
SANTOSH KUMAR
KUMAR SHARMA
SHARMA Date:
2025.02.10
18:09:18
+0530
2 / 17(POCSO) Case No. 02/2018 by which the appellant has been
convicted under Sections 363,366,376 of the IPC and 6
Protection of Children from Sexual Offences Act,2002 and
sentenced him to undergo rigorous imprisonment for 3 years to
pay fine of Rs. 500/- in default of payment of fine to undergo
additional RI for 1 month under Section 363 IPC, RI for 5 years
and to pay fine of Rs. 500/- in default of payment of fine to
undergo additional RI for 1 month under Section 366 IPC, RI for
3 years to pay fine of Rs. 500/- in default of payment of fine to
undergo additional RI for 1 month under Section 376 IPC and RI
for 10 years to pay fine of Rs. 2000/- in default of payment of
fine to undergo additional RI for 2 months under Section 6 of
POCSO Act with a direction to run the sentence concurrently.
2. The prosecution case, in brief, is that the victim’s mother
lodged a missing report of her daughter under missing report
No. 1 of 2017 in Police Station on the basis of which FIR Ex.P-6
was registered against unknown person alleging that her minor
daughter without information went to anywhere from her house
and did not return and in spite of intense search made by her,
they could not discover the whereabouts of the victim
thereafter Police registered Crime No. 02/2017 under Section
363 IPC. During investigation, on 18.11.2017 the mother of
victim presented the victim before the Police Station Gudhiyari
thereafter recovery panchanama was prepared and statement
of victim under Section 164 CrPC was registered by the Police
wherein it is alleged that prior to one and half year she went to
3 / 17
Hanuman Mandir near Railway Station where co-accused Pappu
met with her, gave prashad and took her with him and married
her and thereafter the accused took the minor victim with him
to Kishangarh Rajasthan where he kept the victim as his wife
and had committed sexual intercourse with her, as a result of
which she became pregnant and gave birth to a child.
Subsequently, the accused was arrested and offence under
Sections 366, 376 of the IPC and Section 6 of the POCSO Act
was also added against him. On completion of usual
formalities, challan was filed before the Special Judge and
learned Special Judge on hearing the parties and after
appreciation of evidence and material on record convicted the
appellant as mentioned above.
3. In order to bring home the guilt of appellant, the prosecution
has examined as many as 10 witnesses, victim (PW-1), Bablu
Ramteke (PW-2), Shiv Kumar Sahu (PW-3), Dr. Bhanu Pratap
Chandrakar (PW-4), Mukesh Jha (PW-5), Shivlal Ratnakar (PW-
6), Dr. Manshi Malin (PW-7), Lakhan Lal Sahu (PW-8), Dr. Vidya
Shrikumar (PW-9) and Santoshi Malin (PW-10) and exhibited
documents from Ex.P-1 to Ex. P-19 A. The accused did not
examine any witness in his support. Statement of the accused
was recorded under Section 313 CrPC.
4. The victim (PW-7) was examined before the Court wherein her
statement under Section 164 CrPC was recorded before the
Court wherein she has stated that Pooja took her to Raipur
Railway Station where she told me that she will come after
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drinking water, but did not return thereafter a man and a
woman came there and gave prashad to eat her, after eating
the same she became unconscious the name of man was
Pappu and woman was Gayatri. They took her to their house.
Both of them forcefully got her married to Kishore Khatik and
sent her with him to Kishangarh Rajasthan where the appellant
and his mother used to beat her oftenly. She called her aunt on
phone and told her that she was at Kishangarh Rajasthan then
her mother came to Kishangarh to take her back. Accused
Kishore Khatik was threatening to kill my mother and my
younger sister and her mother filed a report before police
station about my missing thereafter she came back to Raipur
with her mother in October 2017. She also stated that Pappu
and Gayatri forcibly took her to their house and sold her to
accused Kishore Khatik where the appellant kept her as his wife
and from the said relationship one child was also born, birth
certificate of the child was annexed as Exhibited as Article -A.
5. Mother of the victim was examined before the Court wherein
she has stated that the victim was left at Raipur Railway
Station by her friend where Munna and Bablu met with her
thereafter they called the appellant at Ramnagar and they
gave mixed intoxicated food thereafter the appellant along with
co-accused took the victim to Jaipur where she became
conscious then the co-accused and appellant threatened her on
the point of knife thereafter they took her to Kishangarh and
kept her there and committed marpit with her. She has also
5 / 17
stated that the victim called her sister’s mobile and narrated
the incident to her thereafter she went to Kishangarh with
police and took her to Raipur with her. The victim came with
her minor son and recovery panchama (Ex.p-2) was prepared
by the police. The witness has stated that she lodged the
missing report of her daughter in police Station Gudhiary. The
other witnesses have reiterated the stand taken by the victim
in her evidence and they have fully supported the case of the
prosecution.
6. Learned Special Court after appreciating evidence, material on
record has convicted appellant for commission of offence under
Sections 363,366,376 of the IPC and 6 Protection of Children
from Sexual Offences Act 2012 and sentenced him as
mentioned above. Being aggrieved with the judgment of
conviction and order of sentence of the Special Court the
appellant has preferred the appeal before this Court.
7. Learned counsel appearing for the appellant submits that the
prosecution has not proved its case beyond reasonable doubt
and and without there being any iota of evidence, the trial
Court has convicted the appellant. He would further submit
that the Police has not recovered the victim from the
possession of the appellant and the victim was in love affair
with the appellant. The prosecution has not been able to prove
the ingredient of offence under Sections 363, 366, 376 of the
IPC and Section 6 of the POCSO. He would further submit that
there is omission and contradiction in the statement of
6 / 17
prosecution witnesses which is overlooked by the trial Court
and would pray for set aside the judgment of conviction and
order of sentence. To substantiate his submission, he would
refer to the judgment of High Court of Chhattisgarh in the case
of Hasib Khan vs. State of Chhattisgarh in CRA No. 1599
of 2022 decided on 13.02.2024.
8. Per contra learned counsel for the state would submit that the
prosecution has proved its case beyond reasonable doubt,
therefore, the order impugned does not suffer from any
irregularly or infirmity warranting interference by this Court in
the instant appeal.
9. I have heard learned counsel for the parties and perused the
record.
10. In order to consider the age of the victim I have examined the
evidence available on record produced by the prosecution i.e.
statement of the headmistress of the primary school wherein
the said witness has stated that as per Dakhil Kharij Register
the age of the victim is 03.07.2009. The said witness was
examined by the defense wherein she has admitted that she
was not posted when the parents of the victim admitted her in
the school. She has also stated that she cannot say that
parents of the victim have submitted any certificate regarding
date of birth of the victim. She has also stated that regarding
the date of birth Dakhil Kharij Register was available in the
school and no other documents are available with her.
7 / 17
11. For conviction of the accused under the POCSO Act, this Court
has to ascertain the date of birth of the victim as per the
provisions of Section 94 of Juvenile Justice (Care and Protection
of Children) Act, which provides for presumption and
determination of the age. The same reads as under:-
94. Presumption and determination of age.– (1) Where,
it is obvious to the Committee or the Board, based on
the appearance of the person brought before it under
any of the provisions of this Act (other than for the
purpose of giving evidence) that the said person is a
child, the Committee or the Board shall record such
observation stating the age of the child as nearly as may
be and proceed with the inquiry under section 14 or
section 36, as the case may be, without waiting for
further confirmation of the age.
(2) In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought
before it is a child or not, the Committee or the Board, as
the case may be, shall undertake the process of age
determination, by seeking evidence by obtaining–
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the
concerned examination Board, if available; and in the
absence thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any other
latest medical age determination test conducted on the
orders of the Committee or the Board: Provided such age
determination test conducted on the order of the
Committee or the Board shall be completed within
fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to
be the age of person so brought before it shall, for the
purpose of this Act, be deemed to be the true age of that
person.
12. From perusal of statements of prosecutrix (PW-1), her Uncle
(PW-2) as well as other prosecution witnesses, it appears that
there is no any cogent and clinching evidence led by the
prosecution to hold that on the date of incident, the prosecutrix
was minor and below 18 years of age.
8 / 17
13. In case of Rishipal Singh Solanki Vs. State of Uttar
Pradesh & Others, 2022 (8) SCC 602, while considering
various judgments, the Hon’ble Supreme Court has observed in
para 33 as under :
33. What emerges on a cumulative consideration of the
aforesaid catena of judgments is as follows:
33.2.2. If an application is filed before the Court claiming
juvenility, the provision of sub-section (2) of section 94 of the JJ
Act, 2015 would have to be applied or read along with sub-
section (2) of section 9 so as to seek evidence for the purpose
of recording a finding stating the age of the person as nearly as
may be
xxxxxx
xxxxxx
xxxxxx
33.3 That when when a claim for juvenility is raised, the burden
is on the person raising the claim to satisfy the Court to
discharge the initial burden. However, the documents
mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007
made under the JJAct, 2000 or sub Section (2) of Section shall
be sufficient for prima facie satisfaction of the Court. On the
basis of the aforesaid documents a presumption of juvenility
may be raised.
33.4 The said presumption is however not conclusive
proof of the age of juvenility and the same may be
rebutted by contra evidence let in by the opposite side.
9 / 17
33.5 That the procedure of an inquiry by a Court is not
the same thing as declaring the age of the person as a
juvenile sought before the JJ Board when the case is
pending for trial before the concerned criminal court. In
case of an inquiry, the Court records a prima facie
conclusion but when there is a determination of age as
per sub- section (2) of section 94 of 2015 Act, a
declaration is made on the basis of evidence. Also the
age recorded by the JJ Board shall be deemed to be the
true age of the person brought before it. Thus, the
standard of proof in an inquiry is different from that
required in a proceeding where the determination and
declaration of the age of a person has to be made on
the basis of evidence scrutinized and accepted only if
worthy of such acceptance.
33.6 That it is neither feasible nor desirable to lay down
an abstract formula to determine the age of a person. It
has to be on the basis of the material on record and on
appreciation of evidence adduced by the parties in each
case.
33.7 This Court has observed that a hypertechnical
approach should not be adopted when evidence is
adduced on behalf of the accused in support of the plea
that he was a juvenile.
33.8 If two views are possible on the same evidence,
the courtshould lean in favour of holding the accused to
be a juvenile in borderline cases. This is in order to
ensure that the benefit of the JJ Act, 2015 is made
applicable to the juvenile in conflict with law. At the
same time, the Court should ensure that the JJ Act, 2015
is not misused by persons to escape punishment after
having committed serious offences.
33.9 That when the determination of age is on the basis
of evidence such as school records, it is necessary that
the same would have to be considered as per Section
35 of the Indian Evidence Act, inasmuch as any public
or official document maintained in the discharge of
official duty would have greater credibility than private
documents.
33.10 Any document which is in consonance with
public documents, such as matriculation certificate,
could be accepted by the Court or the JJ Board provided
such public document is credible and authentic as per
the provisions of the Indian Evidence Act viz., section 35
and other provisions.
33.11 Ossification Test cannot be the sole criterion for
age determination and a mechanical view regarding the
age of a person cannot be adopted solely on the basis
of medical opinion by radiological examination. Such
evidence is not conclusive evidence but only a very
useful guiding factor to be considered in the absence of
10 / 17
documents mentioned in Section 94(2) of the JJ Act,
2015.
14. Recently, in case of P. Yuvaprakash Vs. State represented
by Inspector of Police, 2023 (SCC Online) SC 846, Hon’ble
Supreme Court has held in para 14 to 17 as under :
“14. Section 94 (2)(iii) of the JJ Act clearly indicates
that the date of birth certificate from the school or
matriculation or equivalent certificate by the
concerned examination board has to be firstly
preferred in the absence of which the birth certificate
issued by the Corporation or Municipal Authority or
Panchayat and it is only thereafter in the absence of
these such documents the age is to be determined
through “an ossification test” or “any other latest
medical age determination test” conducted on the
orders of the concerned authority, i.e. Committee or
Board or Court. In the present case, concededly, only a
transfer certificate and not the date of birth certificate
or matriculation or equivalent certificate was
considered. Ex. C1, i.e., the school transfer certificate
showed the date of birth of the victim as 11.07.1997.
Significantly, the transfer certificate was produced not
by the prosecution but instead by the court summoned
witness, i.e., CW-1. The burden is always upon the
prosecution to establish what it alleges; therefore, the
prosecution could not have been fallen back upon a
document which it had never relied upon. Furthermore,
DW-3, the concerned Revenue Official (Deputy
Tahsildar) had stated on oath that the records for the
year 1997 in respect to the births and deaths were
missing. Since it did not answer to the description of
any class of documents mentioned in Section 94(2) (i)
as it was a mere transfer certificate, Ex C-1 could not
have been relied upon to hold that M was below 18
years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs. State of
Uttar Pradesh & Ors. this court outlined the procedure to be
followed in cases where age determination is required. The
court was dealing with Rule 12 of the erstwhile Juvenile Justice
Rules (which is in pari materia) with Section 94 of the JJ Act,
and held as follows:
11 / 17
20. Rule 12 of the JJ Rules, 2007 deals with the
procedure to be followed in determination of age. The
juvenility of a person in conflict with law had to be
decided prima facie on the basis of physical
appearance, or documents, if available. But an inquiry
into the determination of age by the Court or the JJ
Board was by seeking evidence by obtaining: (i) the
matriculation or equivalent certificates, if available
and in the absence whereof; (ii) the date of birth
certificate from the school (other than a play school)
first attended; and in the absence whereof; (iii) the
birth certificate given by a corporation or a municipal
authority or a panchayat. Only in the absence of either
(i), (ii) and (iii) above, the medical opinion could be
sought from a duly constituted Medical Board to
declare the age of the juvenile or child. It was also
provided that while determination was being made,
benefit could be given to the child or juvenile by
considering the age on lower side within the margin of
one year.”
16. Speaking about provisions of the Juvenile Justice
Act, especially the various options in Section 94 (2) of
the JJ Act, this court held in Sanjeev Kumar Gupta vs.
The State of Uttar Pradesh & Ors that:
“Clause (i) of Section 94 (2) places the date of birth
certificate from the school and the matriculation or
equivalent certificate from the 2021 (12) SCR 502
[2019] 9 SCR 735 concerned examination board the
same category (namely (i) above). In the absence
thereof category (ii) provides for obtaining the birth
certificate of the corporation, municipal authority or
panchayat. It is only in the absence of (I) and (ii) that
age determination by means of medical analysis is
provided. Section 94(2) (a)(i) indicates a significant
change over the provisions which were contained in
Rule 12(3)(a) of the Rules of 2007 made under the Act
of 2000. Under Rule 12(3)(a) (i) the matriculation or
equivalent certificate was given precedence and it was
only in the event of the certificate not being available
that the date of birth certificate from the school first
attended, could be obtained. In Section 94(2)(i) both
the date of birth certificate from the school as well as
the matriculation or equivalent certificate are placed
in the same category.
17. In Abuzar Hossain @ Gulam Hossain Vs. State of
West Bengal, this court, through a three-judge bench,
held that the burden of proving that someone is a
juvenile (or below the prescribed age) is upon the
person claiming it. Further, in that decision, the court
12 / 17
indicated the hierarchy of documents that would be
accepted in order of preference.”
16. Now, reverting to the facts of the present case and after
considering the evidence collected by the prosecution and in
the light of the aforesaid judgments of Hon’ble Supreme Court,
I find that no clinching and legally admissible evidence has
been brought by the prosecution to prove the fact that the
prosecutrix/victim was minor and less than 18 years of age on
the date of incident, despite the fact that the trial Court in the
impugned judgment has held the prosecutrix minor.
Accordingly, I set aside the findings given by the trial Court
that on the date of incident, the victim was minor as the same
has not been proved by the prosecution by leading cogent and
clinching evidence. Accordingly, the accused is acquitted of the
charges of offence under Section 6 of the POCSO Act.
17. Since the prosecution has failed to prove to its case beyond
reasonable doubt that the victim was minor on the date of
incident, therefore, his conviction under Section 6 of the
POCSO Act and sentenced him for 10 years deserves to be
quashed and it is quashed.
18. Learned trial Court after appreciating the evidence and
material on record has held that the charges levelled against
the appellant Sections 363,366,376 of the IPC have been found
proved. Now this Court has examined whether the finding of
the learned trial Court for conviction under Sections
363,366,376 of the IPC is legal, justified or not.
13 / 17
19. To appreciate this point this Court has to extract the provisions
of Section 363,366,376 of the IPC which reads as under:-
Section 363 Punishment for kidnapping.–Whoever kidnaps
any person from India or from lawful guardianship, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to
fine.
Section 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 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.
Section 376 (1) Whoever, except in the cases provided for in
sub-section (2), commits rape, shall be punished with rigorous
imprisonment of either description for a term which 1 [shall not
be less than ten years, but which may extend to imprisonment
for life, and shall also be liable to fine].(2) Whoever,– (a) being
a police officer, commits rape–(I) within the limits of the police
station to which such police officer is appointed; or (ii) in the
premises of any station house; or (iii) on a woman in such
police officer’s custody or in the custody of a police officer
subordinate to such police officer; or (b) being a public servant,
commits rape on a woman in such public servant’s custody or
in the custody of a public servant subordinate to such public
servant; or (c)being a member of the armed forces deployed in
an area by the Central or a State Government commits rape in
such area; or (d) being on the management or on the staff of a
jail, remand home or other place of custody established by or
under any law for the time being in force or of a women’s or
children’s institution, commits rape on any inmate of such jail,
remand home, place or institution; or (e) being on the
management or on the staff of a hospital, commits rape on a
woman in that hospital; or (f) being a relative, guardian or
teacher of, or a person in a position of trust or authority
towards the woman, commits rape on such woman; or (g)
commits rape during communal or sectarian violence; or (h)
commits rape on a woman knowing her to be pregnant; or (j)
commits rape, on a woman incapable of giving consent; or (k)
being in a position of control or dominance over a woman,
14 / 17commits rape on such woman; or (l) commits rape on a woman
suffering from mental or physical disability; or (m) while
committing rape causes grievous bodily harm or maims or
disfigures or endangers the life of a woman; or (n) commits
rape repeatedly on the same woman, shall be punished with
rigorous imprisonment for a term which shall not be less than
ten years, but which may extend to imprisonment for life,
which shall mean imprisonment for the remainder of that
person’s natural life, and shall also be liable to fine.
Explanation.–For the purposes of this sub-section,–(a) “armed
forces” means the naval, military and air forces and includes
any member of the Armed Forces constituted under any law for
the time being in force, including the paramilitary forces and
any auxiliary forces that are under the control of the Central
Government or the State Government; (b) “hospital” means the
precincts of the hospital and includes the precincts of any
institution for the reception and treatment of persons during
convalescence or of persons requiring medical attention or
rehabilitation; (c) “police officer” shall have the same meaning
as assigned to the expression “police” under the Police Act,
1861 (5 of 1861); (d) “women’s or children’s institution” means
an institution, whether called an orphanage or a home for
neglected women or children or a widow’s home or an
institution called by any other name, which is established and
maintained for the reception and care of women or children. 3
[(3) Whoever, commits rape on a woman under sixteen years
of age 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 that person’s natural life,
and shall also be liable to fine: Provided that such fine shall be
just and reasonable to meet the medical expenses and
rehabilitation of the victim: Provided further that any fine
imposed under this sub-section shall be paid to the victim.]
20. Considering the statement of the victim (PW-7) wherein she
has stated that some Akka Bai grand son and his wife came to
her and gave some Prashad to her eat and after eating
Prashad, she became unconscious and she became conscious
at Rajasthan, when she asked for returning to home they have
taken them to house of Kishore Khatik where she lived with him
about 1 ½ year and also became pregnant and gave birth to
one male child. She has admitted in the cross examination that
15 / 17
she was living like daughter-in-law in the house of accused and
her husband opened one bank account in her name. She has
also stated that she was living in the house along with accused
and his mother. She has stated that she has given normal
deliver at Rajsthan and remained in the hospital for three days
but she did not make any complaint. She has also admitted
that after delivery of child, quarrel between mother in law and
herself became frequently and her husband was not supporting
her. She also admitted that due to quarrel she fed up and she
intented to leave that place. She has voluntary stated that
when they have taken her since then she intented to escape
from there but she did not take any recourse available to her
when occasions are available to her in the hospital also and in
the house where she was residing with her husband and
mother in law.
21. DW-1 has stated before the trial Court that the victim used to
reside in her house as daughter in law. She has also stated that
the mother of victim has visited her house at Rajasthan and
demanded Rs. 50,000/- from her when she refused she started
quarreling with her and took back the victim with her from
Rajasthan to Raipur along with grandson. She has also stated
that her phone was with the victim where she can talk to her
friend and relative also on several times. The witness was cross
examined but nothing was brought on record and only
suggestion was given regarding demand of Rs. 50,000/- by the
16 / 17
victim’s mother and no complaint was made to the police
station by her.
22.. From the evidence of the victim, considering the fact that the
victim has ample opportunity to leave Kishangarh, Rajasthan
where she lived about 1 ½ years with the appellant. Even in
the Government Hospital there was opportunity for her to lodge
the report against the appellant and her mother-in-law but she
did not take any recourse against them. Similarly, the version
of the victim that after eating prashad at Raipur and got
become unconscious there and became conscious at Rajasthan
only it is improbable to accept as the distance between Raipur
to Kishangarh, Rajasthan is 1100 KM which took long time to
travel and during travel many passengers must have seen her
unconscious condition. Neither anyone disclosed the incident to
Railway police nor any witness was examined by the
prosecution to corroborate the version of the victim which also
creates doubt over her version. From the statement of mother
of the victim, she has not contacted to local police regarding
abduction of her daughter though she lodged missing report at
Raipur and she herself produced the victim before the Police as
evident from recovery panchanama (Ex.P-2). Further, from the
evidence of the victim she has stated that Pappu had given her
prashad but the prosecution has also not examined him in his
support which creates doubt over the case of the prosecution
for conviction of the accused under Section 363 and 366 of the
17 / 17
IPC, as such accused is entitled to get benefit of doubt for
commission of offence under Section 363 and 366 of the IPC.
23. So far as offence under Section 376 IPC is concerned, since the
prosecution is unable to prove the age of the victim, therefore,
the accused has been acquitted from the charges under the
POCSO Act and the prosecution is unable to prove its case that
the victim was abducted from her lawful guardianship and also
unable to prove that the victim was subjected to rape without
her consent, as such, the prosecution has not proved its case
beyond reasonable doubt, therefore, the accused is acquitted
of offence under Section 376 IPC granting benefit of doubt.
24. Further considering the submission, evidence material on
record and law, it is quite vivid that the prosecution failed to
prove its case beyond reasonable doubt, as the accused is
liable to be acquitted from the charges levelled under Section
366, 366, 376 and section 6 of the POCSO. Accordingly,
Criminal appeal is allowed. The impugned judgment of the trial
Court is set aside. The appellant is acquitted from all the
charges levelled against him. The appellant is stated to be in
jail. He be released forthwith from the jail, if not required, in
any other case.
Sd/-
(Narendra Kumar Vyas)
Judge
Santosh