Chattisgarh High Court
Rishabhdev Kosma vs State Of Chhattisgarh on 3 January, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
2025:CGHC:319-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1698 of 2024
Rishabhdev Kosma S/o Sonsai Kosma Aged About 24 Years R/o Ramchowk Salhe,
P.S. Daundi, District Balod (C.G.)
... Appellant
versus
State Of Chhattisgarh Through P.S. Daundi, District Balod (C.G.)
...Respondent
(Cause-title taken from Case Information System)
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For Appellant : Ms Aditi Singhvi, Advocate
For Respondent/State : Shri Malay Jain, Panel Lawyer
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Hon'ble Shri Justice Ramesh Sinha, Chief Justice
& Hon'ble Shri Justice Ravindra Kumar Agrawal
Judgment on Board
Per Ravindra Kumar Agrawal, J.
03.01.2025
1. Vide order dated 20.11.2024, notice was issued to the
complainant/mother of victim, PW7, informing the pendency of appeal as
well as application for suspension of sentence and grant of bail to the
appellant, revealing that she can appear on the date fixed and object the
prayer in bail application through her counsel.
2. Learned counsel for the State submitted that notice issued to the
complainant has been served upon her. Despite service of notice upon
the complainant, no one appears either in person, or through any other
mode for recording their submission. Although the matter is being listed
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for consideration of IA-1 of 2024, application for suspension of sentence
and grant of bail to the appellant, with the consent of learned counsel for
the parties, the matter has been heard finally.
3. Present appeal under Section 415(2) of the Bhartiya Nagrik
Suraksha Sanhita, 2023 (BNSS) is filed by the appellant against the
impugned judgment dated 23.08.2024, passed by the learned Special
judge (POCSO), Balod, District-Balod, in Special Session Case-39 of
2022, whereby the appellant has been convicted, and sentenced in the
following manner, with default stipulation:
Conviction Sentence
Under Section 363 of the IPC RI for 3 years and fine of Rs.1,000/-
Under Section 4(2) of RI for 20 years and fine of
POCSO Act, 2012 Rs.3,000/-
4. Brief facts of the case are that on 07.03.2022, mother of the victim
PW7 lodged a missing report Ex.P17 to the Police that her minor
daughter is missing since 07.01.2022 at about 4 am, and despite her
search at various places including her relatives house, her whereabouts
could not be traced out. She suspected that her daughter was kidnapped
by the present appellant. Offence under Section 363 of the IPC has been
registered by the Police, and investigation commenced. During
investigation, victim came back to her house on 08.03.2024, and her
mother took her to the Police Station, where recovery Panchnama Ex.P4
was prepared, and the victim was sent for her medical examination to the
District Hospital, Balod, where PW4 Dr Ankita Sahu has medically
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examined her and gave her report vide Ex.P11. According to said
medical report of the victim, no injuries were found on her body, and the
doctor has opined that no definite opinion can be given at present
regarding occurrence of sexual contact. However, final opinion to be
given after report form the Forensic Science Laboratory analysis of
prepared slides, swab and other advised investigation. Two slides of her
vaginal swabs were prepared, sealed and handed over to the Police for
chemical examination. Victim also advised for UPT, USG Abd and Pelvis,
Radiological examination of age, HIV, HBSAG, VDRL, CBC, and FSL
analysis of prepared swab and slides. With respect to age and date of
birth of the victim, Primary School Mark-sheet has been seized vide
seizure memo Ex.P16. School register from the Government Primary
School, Chikhli has also been seized vide seizure memo Ex.P7, and after
retaining its attested true copy Article A(C), original School Register was
returned back to the School vide Ex.P8. According to the School
Register, date of birth of the victim was recorded as 27.05.2005. Spot
Map Ex.P17 was prepared by the Police, and Ex.P18 was prepared by
the Patwari.
5. Appellant was arrested on 17.03.2022, and he too was sent for his
medical examination to the Government Hospital, Daundi, District-Balod,
where PW5 Dr NK Thakur has medically examined him, and found no
injuries on his body. After his medical examination, the doctor has opined
that appellant is competent to perform sexual intercourse and his report
is, Ex.P12. The vaginal slides of the victim, and underwear of the
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appellant were sent for chemical examination to the Forensic Science
Laboratory, Raipur, from where, report Ex.P29 was received, and
according to it, no semen and sperms were found on the sent articles.
6. Statement of witnesses under Section 161 of the CrPC, and
statement of the victim under Section 164 of the CrPC have been
recorded, and after completion of investigation, charge-sheet was filed on
13.05.2022 for the offence under Sections 363, 366, 376(2)(n), 376(3)
and 34 of the IPC, and Section 4, 5(l) and 6 of the Protection of Children
from Sexual Offences Act, 2012 (POCSO Act).
7. The learned trial court has framed charges against the appellant,
and another co-accused Dharmendra Nag, who is absconding. Learned
trial court has framed charges against the appellant under Sections 363,
366, 376(2)(n), 376(3) and 34 of the IPC, and Section 4, 5(l) and 6 of the
POCSO Act. The appellant denied the charge and claimed trial.
8. In order to bring home the charge, the prosecution has examined as
many as 11 witnesses. The statement under section 313 of CrPC of the
appellant was also recorded in which he denied the material appearing
against him and pleaded innocence and has submitted that he has been
falsely implicated in the offence. The victim was in love with appellant,
but her mother does not like him, and for that reason, she has made
complaint against him, and he prays for acquittal.
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9. After appreciation of oral, as well as documentary evidence led by
the prosecution, learned trial Court has convicted and sentenced the
appellant as mentioned in earlier part of this judgment. Hence this
appeal by the accused/appellant.
10. Learned counsel for the appellant would argue that prosecution has
failed to prove its case beyond reasonable doubt. There is no cogent and
legally admissible evidence available on the record to held the conviction
of appellant for the alleged offence. There are material omissions and
contradictions in the evidence of prosecution witnesses. There is no
cogent and clinching evidence with respect to age and date of birth of the
victim. The School Register upon which the prosecution is relied upon for
determination of age of the victim has not been proved in accordance
with law, and there is no other evidence on record to held that the victim
was minor on the date of incident. He would further submit that the victim
was a major girl, having love affair with the appellant, and she on her own
will and wish, eloped with him, and resided with him without making any
complaint to anybody, or raising any alarm, and engaged in making
consensual physical relation with him. There is no evidence of protest
made by the victim during the entire period, while she was residing with
him. No injuries were found on her body that she was subjected to
forceful sexual intercourse. Therefore, no offence is made out against
the appellant from the evidence led by the prosecution, and he is entitled
for acquittal.
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11. On the other hand, the learned counsel for the state opposes the
argument advanced by the learned counsel for the appellant, and
submitted that from the evidence led by the prosecution, guilt of the
appellant has duly been proved beyond any reasonable doubt but for
minor omissions and contradictions. Even if no injuries were found on
the body of the victim, that itself is not sufficient to disbelieve their
evidence, and to acquit the appellant. From the School record, it has
duly been proved that the victim was minor on the date of incident, and
she cannot give her consent in making physical relation with the
appellant. Therefore, considering the entire facts and circumstances of
the case, learned trial court has convicted the appellant, and sentenced
him for the alleged offences, which is strictly in accordance with law, and
the appeal of the appellant is liable to be dismissed.
12. We have heard learned counsel for the parties and perused the
record carefully.
13. The first and foremost question for consideration would be, age and
date of birth of the victim, as to whether on the date of incident, she was
minor or not.
14. With regard to age of the victim, the prosecution has mainly relied
upon the school admission and discharge register Article A(C), which is
sought to be proved by PW2, who is Assistant Teacher/In-charge Head
Master of the School. He stated in his evidence that the Police has
seized the School register from him vide seizure memo Ex.P7, and after
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retaining its attested true copy, Article A(C), original Register was
returned back to him vide Ex.P8. In the said register, date of birth of the
victim is recorded as 27.05.2005, and she got admitted in the School in
Class-5 on 28.06.2014. In the register, date of birth of the victim was
recorded on the basis of mark-sheet and TC of Class-4.
In cross-examination he admitted that in the school register, date of birth
of the victim is not in his handwriting. He posted in the school since
2015. He further admitted that who made the relevant entry in the
register, he did not know. Even he did not know as to on what basis
dater of birth of the victim is being recorded. He further admitted that
there is correction in the register, on which whitener was applied. He
further admitted that recorded date of birth of the victim is correct or not,
he did not know. He also admitted that who got her admitted in the
School, he did not know.
15. The admissibility, and relevancy of the school admission and
discharge register came up for hearing before the Hon’ble Supreme
Court in case of Alamelu and Another Vs. State, represented by
Inspector of Police, reported in 2011(2) SCC 385, in which the Hon’ble
Supreme Court has held that the Transfer Certificate which is issued by
the Government School, and is duly signed by the Head Master, would
be admissible in evidence under Section 35 of the Evidence Act 1872.
However, admissibility of such a document would be of not much
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evidentiary value to prove the age of the prosecutrix in the absence of
any material on the basis of which the age was recorded.
16. In paragraphs 40 and 48 of its judgment in Alamelu (Supra), the
Supreme Court has observed as under:
“40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the
girl’s date of birth was 15th June, 1977. Therefore, even according
to the aforesaid certificate, she would be above 16 years of age (16
years 1 month and 16 days) on the date of the alleged incident, i.e.,
31st July, 1993. The transfer certificate has been issued by a
Government School and has been duly signed by the Headmaster.
Therefore, it would be admissible in evidence under Section 35 of
the Indian Evidence Act. However, the admissibility of such a
document would be of not much evidentiary value to prove the age
of the girl in the absence of the material on the basis of which the
age was recorded.
48. We may further notice that even with reference to Section 35 of
the Indian Evidence Act, a public document has to be tested by
applying the same standard in civil as well as criminal proceedings.
In this context, it would be appropriate to notice the observations
made by this Court in the case of Ravinder Singh Gorkhi Vs. State
of U.P. held as follows:-
“38. The age of a person as recorded in the school register
or otherwise may be used for various purposes; namely, for
obtaining admission; for obtaining an appointment; for
contesting election; registration of marriage; obtaining a
separate unit under the ceiling laws; and even for the
purpose of litigating before a civil forum, e.g. necessity of
being represented in a court of law by a guardian or where a
suit is filed on the ground that the plaintiff being a minor he
Cra 1698 of 20249
was not appropriately represented therein or any transaction
made on his behalf was void as he was minor. A court of law
for the purpose of determining the age of a party to the lis,
having regard to the provisions of Section 35 of the Evidence
Act will have to apply the same standard. No different
standard can be applied in case of an accused as in a case
of abduction or rape, or similar offence where the victim or
the prosecutrix although might have consented with the
accused, if on the basis of the entries made in the register
maintained by the school, a judgment of conviction is
recorded, the accused would be deprived of his constitutional
right under Article 21 of the Constitution, as in that case the
accused may unjustly be convicted.”
17. 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.
XXXX
33.3. That when a claim for juvenility is raised, the burden is on the
person raising the claim to satisfy the Court to discharge the initial
burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii),
and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-
section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima
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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.
33.5. That the procedure of an inquiry by a Court is not the same
thing as declaring the age of the person as a juvenile sought before
the JJ Board when the case is pending for trial before the
concerned criminal court. In case of an inquiry, the Court records a
prima facie conclusion but when there is a determination of age as
per sub-section (2) of section 94 of 2015 Act, a declaration is made
on the basis of evidence. Also the age recorded by the JJ Board
shall be deemed to be the true age of the person brought before it.
Thus, the standard of proof in an inquiry is different from that
required in a proceeding where the determination and declaration of
the age of a person has to be made on the basis of evidence
scrutinised and accepted only if worthy of such acceptance.
33.6. That it is neither feasible nor desirable to lay down an abstract
formula to determine the age of a person. It has to be on the basis
of the material on record and on appreciation of evidence adduced
by the parties in each case.
33.7 This Court has observed that a hypertechnical approach
should not be adopted when evidence is adduced on behalf of the
accused in support of the plea that he was a juvenile.
33.8. If two views are possible on the same evidence, the court
should lean in favour of holding the accused to be a juvenile in
borderline cases. This is in order to ensure that the benefit of the JJ
Act, 2015 is made applicable to the juvenile in conflict with law. At
the same time, the Court should ensure that the JJ Act, 2015 is not
misused by persons to escape punishment after having committed
serious offences.
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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 documents mentioned in Section 94(2) of the JJ Act,
2015.”
18. Recently, in case of P. Yuvaprakash Vs. State represented by
Inspector of Police, reported in 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
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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:
“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
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absence of either (i), (ii) and (iii) above, the medical opinion
could be sought from a duly constituted Medical Board to
declare the age of the juvenile or child. It was also provided
that while determination was being made, benefit could be
given to the child or juvenile by considering the age on lower
side within the margin of one year.”
16. Speaking about provisions of the Juvenile Justice Act, especially
the various options in Section 94 (2) of the JJ Act, this court held in
Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:
“Clause (i) of Section 94 (2) places the date of birth
certificate from the school and the matriculation or equivalent
certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735
concerned examination board in the same category (namely
(i) above). In the absence thereof category (ii) provides for
obtaining the birth certificate of the corporation, municipal
authority or panchayat. It is only in the absence of (i) and (ii)
that age determination by means of medical analysis is
provided. Section 94(2)(a)(i) indicates a significant change
over the provisions 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
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indicated the hierarchy of documents that would be accepted in
order of preference.”
19. Reverting to facts of the present case, except the school register
Article A(C), there is no other evidence produced by the prosecution for
determination of age of the victim. The said register is of Class-5, and as
per evidence of PW2, relevant entries with regard to date of birth of the
victim have been made in the register on the basis of her Class-4 Mark-
sheet and TC but there is no document ie either Mark-sheet of Class-4,
or TC of the victim. Even there is no any document of initial schooling of
the victim. Therefore, it is very difficult to rely upon the said school
register Article A(C) as the authentic document, to determine age of the
victim, as to decide that on the date of incident, she was minor, less than
18 years of age.
20. The victim PW1 has stated in her evidence that her date of birth is
27.05.2005. In her cross-examination, she admitted that in her Aadhar
card, her date of birth was recorded as 01.01.2004. She further admitted
that her father is not of sound mind, and therefore, her father’s elder
brother has got her admitted in the school. Later on, she stated that her
maternal grant father has got her admitted in the school.
21. PW7, mother of the victim has stated in her evidence that victim is
her elder daughter, and her date of birth is 27.05.2005. At the time of
incident, victim was aged about 16 or 17 years. Police has seized the
mark-sheet of the victim from her.
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In her cross-examination, she admitted that her husband is not of sound
mind, and he is not residing with them since long back. The victim is not
acquainted with her father, and residing in her parents’ house. She
further admitted that after two years of birth of the victim, her father got
prepared her Birth Certificate. She further admitted that at the instance of
Kotwar of the village, year of birth of the victim was recorded as 2005,
which is two years later from her actual year of birth.
In further cross-examination, she stated that in the Aadhar Card of the
victim, wrong date of birth has been recorded. Victim has got admitted in
the School by her brother only. She stated that her father has got
admitted the victim in the school. She further stated that date of birth of
victim was recorded in the school on the basis of date of birth given by
the Kotwar of the village.
22. From the evidence led by the prosecution, the victim herself has
stated that in the Aadhar Card, her date of birth was recorded as
01.01.2003. Her maternal grand-father has got her admitted in the
school. Her mother PW7 has stated that her daughter is aged about 16-
17 years, and after two years of her birth, her Birth Certificate was
prepared on the instance of village Kotwar. Her date of birth was
recorded as 27.05.2005.
23. From the aforesaid evidences, there appears some discrepancy in
actual date of birth of the victim, as it was not supported by any
documentary evidence. Even there is no any ossification report, Kotwari
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register or birth certificate produced by the prosecution to prove the age
of the victim. Despite having referred for her radiological examination,
prosecution has not conducted her examination. Therefore, in absence
of any cogent or clinching evidence regarding date of birth of the victim,
it would not be safe to hold that the victim was minor, less than 18 years
of age on the date of incident. Yet, learned trial Court held her minor.
24. So far as offence of kidnapping and rape is concerned, we again
examine the evidence of PW1, victim. She stated in her evidence that
she knows the appellant since last five years. He proposed her that he
likes her and wanted to marry her. Both of them were used to meet each
other, and made physical relation with each other. On 28.12.2021,
appellant took the victim to Bhilai to a private hospital, where she came to
know after her examination, that she was conceived, and carrying
pregnancy of about 7 months. The appellant got terminated her
pregnancy, and took her to Nevoibhata, to his brother’s house and kept
her for about a month. On 30.01.2022, father of the appellant and other
persons of the vicinity took her to Devgaon (Kondagaon), where the
maternal uncle of the appellant has also made physical relation with her.
Thereafter, she informed her parents about the incident, and then her
mother came there. At that time, the maternal uncle of the appellant took
her to an Advocate, and obtained her signature in some papers. She was
being sent to her parents’ house by the maternal uncle of the appellant,
and asked to withdraw her case. A village meeting was also convened,
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and the Police was informed that the victim was returned back to her
house. Thereafter, Police proceeding was drawn.
In her cross-examination she admitted that she and the appellant were in
love affair, but the maternal uncle of the appellant does not like their
affair. She further admitted that during her stay at Devgaon
(Kondagaon), appellant has not made any physical relation with her but it
is his maternal uncle, who made physical relation with her. She further
admitted that if the maternal uncle of the appellant would not intervene in
between them, she would have not lodged any report. Physical relation
of maternal uncle of the appellant was not in knowledge of the appellant.
She further admitted that during their stay at Devgaon, both of them
were earning their livelihood by working as labourers. She further stated
that the statement about her pregnancy, about abortion, and her taking
by the appellant to his maternal uncle house at Devgaon, have been
stated in her police statement Ex D1 but if it is not there, she could not
know the reason. Even the statement about taking her to an advocate
and obtaining her signature on certain papers, and thereafter, his
maternal uncle left her at her parents house has been disclosed before
the Police, and if it is not there in the Police statement, Ex.D1, she could
not know the reason. She further admitted that it is is not like the
appellant.
25. From the evidence of victim PW1, it is quite vivid that she was in
love affair with the appellant, and she had gone with him on her own will
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and wish. Her abortion was being done at Bhilai, thereafter, she started
residing with the appellant at Nevoibhata, she stayed there for about a
month, thereafter, both of them had gone to Devgaon (Kondagaon),
where both of them have earned their livelihood. Although she raised
allegation that at village Devgaon, his maternal uncle has sexually
exploited her but the fact remains that up to Devgaon, she stayed with
the appellant and has not made any allegation of her kidnapping or
forceful sexual intercourse with her. Rather, it appears that she was in
love affair with the appellant since last five years, and both of them
frequently engaged in making physical relation without raising any
objection. Prosecution could not establish that she was minor on the
date of incident, hence, it can safely be held that she is major on the date
of incident, and when she herself had gone with the appellant, no
offence of kidnapping also not made out against the appellant.
26. So far as the kidnapping, or taking away the minor girl is concerned,
Hon’ble Supreme Court in the matter of S. Varadarajan Vs State of
Madras, AIR 1965 SC 942, observed in paras 9 & 10 as below :
“9. It must, however, be borne in mind that there is a distinction
between “taking” and allowing a minor to accompany a person. The
two expressions are not synonymous though we would like to guard
ourselves from laying down that in no conceivable circumstances
can the two be regarded as meaning the same thing for the
purposes of Section 361 of the Indian Penal Code. We would limit
ourselves to a case like the present where the minor alleged to have
been taken by the accused person left her father’s protection
knowing and having capacity to know the full import of what she was
Cra 1698 of 202419
doing voluntarily joins the accused person. In such a case we do not
think that the accused can be said to have taken her away from the
keeping of her lawful guardian. Something more has to be shown in
a case of this kind and that is some kind of inducement held out by
the accused person or an active participation by him in the formation
of the intention of the minor to leave the house of the guardian.
10. It would, however, be sufficient if the prosecution establishes
that though immediately prior to the minor leaving the father’s
protection no active part was played by the accused, he had at
some earlier stage solicited or persuaded the minor to do so. In our
opinion, if evidence to establish one of those things is lacking it
would not be legitimate to infer that the accused is guilty of taking
the minor out of the keeping of the lawful guardian merely because
after she has actually left her guardian’s house or a house where
her guardian had kept her, joined the accused and the accused
helped her in her design not to return to her guardian’s house by
taking her along with him from place to place. No doubt, the part
played by the accused could be regarded as facilitating the
fulfillment of the intention of the girl. That part, in our opinion, falls
short of an inducement to the minor to slip out of the keeping of her
lawful guardian and is, therefore, not tantamount to “taking”.”
27. From the evidence of victim PW1, her mother PW7, as also the
evidence of PW4, Dr Ankita Sahu, who medically examined the victim
who did not find any external injury on the body of the victim, further in
absence of any protest or complaint by the victim, it can be held that she
was a consenting party in making physical relation with the appellant,
which does not come under definition of ‘rape’, and the appellant is
entitled for ‘benefit of doubt’.
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28. From aforesaid discussion, we are unable to upheld the conviction
of appellant for the alleged offence, and consequently, by giving benefit of
doubt, the appeal filed by the appellant is allowed. The impugned
judgment of conviction and order of sentence is set aside, and the
appellant is acquitted from all the alleged offences.
29. Appellant is reported to be in jail since 17.03.2022. He be set at
liberty forthwith, if not required in any other case.
30. Keeping in view the provisions of section 481 of BNSS 2023, the
appellant is directed to furnish a personal bond for a sum of Rs. 25,000/-
with two reliable sureties in the like amount before the court concerned
forthwith, which shall be effective for a period of six months along with an
undertaking that in the event of filing of Special Leave Petition against the
instant judgment or for grant of leave, the aforesaid appellant on receipt
of notice thereof, shall appear before the Hon’ble Supreme Court.
31. The lower court records along with a copy of this judgment be sent
back immediately to the trial Court concerned, for compliance and
necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
padma