Allowed

Umesh Kumar Yadav v. State of Chhattisgarh

Chhattisgarh HC23 Jul 2024CRA/598/2024

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed an appeal against conviction for rape and kidnapping. The court held that the prosecution failed to legally prove the prosecutrix was a minor under 18, as school records were inadmissible without the entry-maker's testimony. Consequently, the court found the incident involved a consenting adult who eloped, dismissing the charges.

What did the court decide?

The impugned judgment of conviction and sentence is set aside. The appellant is acquitted of all charges and directed to be released on bail.

Umesh Kumar Yadav Vs State of… — Pension and Retirement Benefits | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 598 of 2024

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1 - Umesh Kumar Yadav S/o Nil Singh Yadav Aged About 25 Years R/o Gudbheli, P.S. Deobhog, District : Gariyabandh, Chhattisgarh

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----appellant

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Versus

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1 - State Of Chhattisgarh, through Station House Incharge P.S. Deobhog, District : Gariyabandh, Chhattisgarh

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---- Respondent

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For Appellant : Mr. Sudhir Verma, Advocate.

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For Respondent/ State : Mr. Sakib Ahmad, P.L.

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Division Bench:

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Ravindra Kumar Agrawal, Judge Order on Board

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Per Ravindra Kumar Agrawal, Judge

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24.07.2024

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1. The present appeal has been filed under Section 374 (2) of the Code of Criminal Procedure, 1973, against the judgment of conviction and sentence dated 08/02/2024 passed by learned Additional Sessions Judge, Fast Track, Special Court (POCSO and Rape cases) Gariyaband in POCSO Case No. 01 of 2022 whereby the appellant

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has been convicted and sentenced in the following manner:-

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S.No.	Conviction	Sentence
1.	U/s 363 of IPC	R.I. for 02 years and fine of Rs. 1000/-
2.	U/s 366 of IPC	R.I. for 5 years and fine of Rs. 2000/-
3	U/s 376 (2)(n) of IPC	Merged in sentence under Section 06 of POCSO Act.
4	U/s 6 of POCSO Act.	R.I. for 20 years and fine of Rs. 5000/- in default of fine R.I of one month for each offences.

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(All the sentences shall run concurrently)

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2. Brief facts of the case are that, the father of the prosecutrix has lodged a written report (Ex-P/15) with the allegation that his minor daughter is missing since the intervening night of 01.11.2021 to 02.11.2021 and she was not found in his house. Despite having her search in the nearby places as well as her relatives’ house, her whereabouts could not be traced out. It is also alleged that four months back he came to know about the fact that his daughter was having love affair with the appellant and he objected to continue the relation with him and he also came to know on 02.11.2021 that the appellant is also missing from his house and thereafter by raising suspicion on the appellant, he made the report to the Police. Based on the written report, the FIR (Ex-P/6) was registered against the appellant for the offence under Section 363 of IPC. During the investigation, the prosecutrix recovered on 07.11.2021 from the possession of the appellant and a recovery panchanama (Ex-P/1) was prepared. The prosecutrix was sent for her medical examination to community health centre, Devbhog where PW-05 Dr. Tanisha Dhanelia has examined her and gave report (Ex-P/18). While examining the prosecutrix the doctor has not found any external injuries on her body and has opined that sexual intercourse has been done, according to the findings but no signs and symptoms of recent sexual intercourse. Two slides of her vaginal swab were also prepared and handed over to the Police for FSL examination. The underwear of the prosecutrix was seized vide seizure memo (Ex-P/3). Spot map (Ex-P/7) was prepared by the Police and Ex-P/8

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was prepared by the Patwari. With respect to the age and date of birth of the prosecutrix, the Police has seized the progress report card of Class-5 vide seizure memo (Ex-P/11) and according to which the date of birth of the prosecutrix is 03.06.2005. The school admission and discharge register and the affidavit register has also been seized vide seizure memo (Ex-P/15) from Govt. Primary School, Bazadi, Dist- Gariaband and after retaining the attested true copy of the school register and affidavit register, the original school register was sent back. The appellant was arrested on 07/11/2021 and he too was sent for his medical examination where PW-06 Dr. Subham Raj Kant has examined him and gave his report (Ex-P/22 and Ex-P/23). After examination, the Doctor has opined that the appellant is physically fit and capable to perform sexual intercourse. The Police has seized the Splender Motor Cycle, two mobile sets from the appellant vide seizure memo (Ex-P/25). The underwear of the appellant was also seized vide seizure memo (Ex-P/26). The Police has also obtained the CAF, CDR and SDR of the mobile numbers of the appellant as well as the prosecutrix which is Ex-P/38, P/39 and P/40. The certificate under Section 65-B of the Evidence Act has also been obtained vide Ex-P/41. The slides of vaginal swab of the prosecutrix, underwear of the appellant and underwear of the prosecutrix were sent for FSL examination to State FSL, Raipur from where report (Ex-P/37) was received. According to the FSL report the semen and sperms were found on send articles. Statements under Section 161 of Cr.P.C. of the witnesses and Statement under Section 164 of Cr.P.C. of the prosecutrix have been recorded and after completion of usual investigation, charge-sheet was filed before

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the learned trial Court for the offence under Sections 363, 366, 376 (2)(n) of IPC and Section 4 and 6 of POCSO Act.

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3. Learned trial Court has framed charges against the appellant for the offences under Sections 363, 366 and 376 (2)(n) of IPC and Section 6 of POCSO Act. The appellant denied the charge and claimed trial.

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4. In order to establish the charge against the appellant, the prosecution has examined as many as 09 witnesses. Statement under Section 313 of Cr.P.C. of the appellant has also been recorded in which he denied the circumstances appears against him, plead innocence and submitted that he has been falsely implicated in the offence.

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5. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced the appellant as mentioned in opening paragraph of this judgment. Hence this appeal.

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6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There is material omissions and contradictions in the evidence of prosecution witnesses. He would further submit that there is no legally admissible evidence with respect to the age and date of birth of the prosecutrix that on the date of incident, she was minor and less than 18 years of age. In absence of the author of the school register, the same cannot be taken into consideration for determination of the age of the prosecutrix. There is no Kotwari Register or birth certificate or no ossification test report produced by the prosecution in support of her age or date of birth. It is further argued by the learned counsel for the appellant that the prosecutrix and the appellant were having

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love affair and she herself accompanied with the appellant and both of them were resided together for a considerable period. She has not made any complaint to anyone while she was going with the appellant or staying with him. Thus, the prosecutrix was a consenting party and no complaint has been made by her to anyone regarding forceful sexual intercourse or any threat hence the offence under the IPC or the POCSO Act are not made out against the appellant and he is entitled for acquittal.

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7. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the prosecutrix was minor and below 18 years of age at the time of incident, which is proved by the school admission and discharge register [Article 2(c) and 3(c)] which contains the date of birth of the prosecutrix as 03.06.2005. The school admission and discharge register and affidavit register are the admissible piece of evidence to determine the age of the prosecutrix. Therefore, there is no illegality or infirmity in the findings of the learned trial Court. Since, the prosecutrix was minor on the date of incident, her consent, even if any, is immaterial because she was not capable to give her consent for making physical relation with the appellant and the learned trial Court has rightly convicted and sentenced the appellant which is absolutely justified and needs no interference.

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8. We have heard learned counsel for the parties and perused the record.

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9. The first and foremost question arose for the consideration would be whether the prosecutrix was minor and less than 18 years of age on the date of incident or not.

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10. In order to consider the age of the prosecutrix, we have examined the evidence available on record. The prosecution has mainly relied upon the School Admission and Discharge Register as Article-2(c), School Affidavit Register Article-3(c) which are sought to be proved by PW-3 who was the Assistant Teacher at Govt. Primary School, Bazadi. He stated in his deposition that the Police has seized the school register with respect to the date of birth of the prosecutrix vide seizure memo (Ex-P/15) and after obtaining the attested true copy of the same, the original register was returned back to him. The attested copy of the said registers are Article 2(c) and Article 3(c). According to him, the date of birth of the prosecutrix is recorded in the school register is 03.06.2005. The date of birth of the prosecutrix has been recorded by him on the basis of discloser made by her father and the signature of her father has also been obtained in the said school register. In cross-examination, he admitted that at the time of her admission in the school, her father had not brought any document with respect to the date of birth. He further stated that he recorded the date of birth of his children in the school register, on the basis of the list supplied by the Anganbadi Centres and therefore, he has not obtained signatures of the parents of other children. He admitted that he has obtained signature of the father of the prosecutrix in the school register at the time when the Police has seized the said register from him and prior to that there was no signature of him in the said register. He further admitted that in the

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affidavit register, there is no mention of the fact that the date of birth of the prosecutrix is recorded on the basis of the list provided from the Anganbadi Centre. Although, the said list provided by the Anganbadi Centre was in his possession but he has not brought the same. From the evidence of this witness, it appears that though he is the author of the school register but the basis on which the date of birth of the prosecutrix is recorded in the said register is not produced by the prosecution despite its availability.

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11. PW-1, the prosecutrix has stated in her deposition that she studied upto Class- 10 and her date of birth is 03.06.2005. In crossexamination, she stated that she disclosed her date of birth at the time of recording of her 161 Cr.P.C. and 164 of Cr.P.C. Statement and if the same is not in their statements, she could not tell the reason.

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12. PW-2, father of the prosecutrix has stated in his deposition that his daughter (prosecutrix) is studied upto Class- 10, he could not know her date of birth. At the time when the report has been lodged, his daughter was aged about 16 years and some months but at present he could not know her age. In cross-examination, he stated that he disclosed the age of the prosecutrix on the basis of the date of birth shown in her adhar-card and school record. He admitted that in the progress report card of the prosecutrix, what date has been written he could not know. He further admitted that he did not know the date of birth of his children. He further stated that at the time of the admission of his daughter in the school, the Anganbadi Centre had provided certain papers which was given by him to the teacher of the

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school. From the evidence of PW-3 teacher of the school, PW-1 Prosecutrix and PW-2 father of the prosecutrix and also from the school register [Article- 2(c)] and affidavit register [Article- 3(c)] and further the progress report card of Class- 5 (Article-1) of the prosecutrix, it would not be safe to hold that the prosecution has proved the age of the prosecutrix that on the date of incident, she was less than 18 years of age as there is no clinching and cogent evidence produced by the prosecution.

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13. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector

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of Police, 2011(2) SCC 385 , the Supreme Court has observed as under:

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"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. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.

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Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:-

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"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or

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otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."

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The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:-

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"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"."

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In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl.

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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.4 held as follows:-

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"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

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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 was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 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."

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14. 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:

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"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

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33.2.2. If an application is filed before the Court claiming juvenility, the provision of subsection (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.

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XXXX XXXX XXX

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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 facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

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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.

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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 subsection (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.

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33.6. That it is neither feasible nor desirable to lay

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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.

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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.

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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.

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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.

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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

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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."

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15. 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 :

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"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

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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 thedescription 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.

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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:

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"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."

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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

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Uttar Pradesh & Ors that:

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"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 fromthe 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.

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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 indicated the hierarchy of documents that would be accepted in order of preference."

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16. Reverting to the facts of the present case, despite having availability

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of the Anganbadi record or opportunity to get ossification test report, the same has not been filed by the prosecution. When the father himself has stated that he did not know the date of birth of the prosecutrix and the PW-3 the teacher of the school has stated that his father has recorded the date of her birth on the basis of list provided by Anganbadi Centre, but the said list has not been produced. Further at the time of seizure of the school register, the signature of the father of the prosecutrix has been taken on it which itself created doubt that the school records produced by the prosecution is free from any suspicion. In view of the aforesaid judgments passed by Hon’ble Supreme Court and also in the peculiar facts and circumstances of the case, it can safely be hold

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that the prosecution has failed to prove the fact that the prosecutrix was minor on the date of incident and below 18 years of age, yet the learned trial Court has held her minor.

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17. So far as, the evidence of kidnapping and rape is concerned, we again carefully examined the evidence of the prosecution witnesses. In 164 of Cr.P.C. Statement of the prosecutrix (Ex-P/4) he stated that she knew the appellant because he used to come to her village as a tractor driver in the house of Dugleshwar Yadav. He proposed her by saying that he is liking her and they exchanged their mobile numbers and used to talk with each other. On 01.11.2021 in the night at about 12.00 am, he asked her to eloped with him and called her near Indian black berry (Jamun) tree and when she had gone there, he took her towards village Deban, Orissa by his Motor Cycle. He left his Motor Cycle in the house of his maternal uncle and both of them had gone to village Deban by Bus, from where they had gone to Jagdalpur via Umerkot by Bus. On 02.11.2021, he took her in hotel at Jagadalpur Bus Stand where he made physical relation with her. After about 2 days, he took her in another hotel where also he made physical relation with her. On 06/11/2021, they returned from Jagdalpur by Bus via Umerkot to Deban and reached there at 07.11.2021 at about 4.00 am. He has taken his motor cycle from the house of his maternal uncle and while they were coming to village Bazadi, the Police caught them.

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18. In her evidence before the Court, the prosecutrix (PW/1) has stated in para-1 of her evidence that she had not gone with anyone at anywhere when she has declared partially hostile. She stated that in

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the year 2020 when the appellant used to come to her village, he proposed her, they exchanged their mobile numbers. The appellant gave her touch screen mobile set in the month of October, 2020, made a telephonic call on 01.11.2021 and asked her to eloped with him. She accompanied with the appellant, he took her to Jagdalpur via Umerkot by Bus. They stayed there upto 06.11.2021 by changing hotels and where he made physical relation with her. On 06.11.2021, the appellant took her to Umerkot by Bus and stayed in the house of his maternal uncle where also, he made physical relation with her and on 07.11.2021, when they were returning to the village Bazadi on the way, the Police caught them. In cross-examination, she stated that on 01.11.2021 she herself has made a telephonic call for multiple times in between 1.25 am 23.48 hours. She further admitted that on the same day, she herself had made a telephonic call on 12.24 hours and on that night, no call from the appellant side. She admitted that on 01.11.2021, she has called the appellant and she stated to him that she wanted to go with him. She admitted that when she was going with the appellant by his motor cycle, on the way, number of persons were met her, she was having mobile phone in her hand but she has not raised any alarm and has not made any complaint to anyone while she was going with the appellant even in the bus stand of various places, from where they boarded the bus and even in hotel, she has not made any complaint to anyone. Despite having mobile phone with her, she has not informed her parents about any incident. She admitted that she was having relation with the appellant since last 1 and half years and all the times they made physical relation on her own will and she has never

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raised any objection. Their relationship was come into knowledge of her family members and since both of them were belongings to the different caste, their parents are not accepting their relation. She wanted to marry with the appellant but her parents are not ready. From the evidence of the prosecutrix, it is quiet vivid that she was in love affair with the appellant since last 1 and half years. They made physical relation with each other for multiple times that too with the consent of the prosecutrix and she has never raised any objection against any act of the appellant. She was in love affair with him and she herself eloped with him.

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19. The PW-2, father of the prosecutrix is the witness about the fact that the prosecutrix was missing from the intervening night on 01.11.2021 to 02.11.2021 and he lodged a missing report. He admitted in his cross-examination that the prosecutrix was used to talk with the appellant and she tried to convince her despite that she was not stopped talking with the appellant and used to meet him. He admitted that since, both the family members are belonging to different caste and therefore, he will not permit for their marriage and if the appellant would belongs to his own caste, he would permit for their marriage.

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20. In the case of S. Varadarajan Vs. State of Madras , AIR 1965 SC 942, the Hon'ble Supreme Court has held that:

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“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 circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor

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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 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.

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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".

¶100

21. From the aforesaid evidence led by the prosecution, it is clear that the prosecutrix was having affair with the appellant. She was having physical relation with him for about 1 and half years and she herself eloped and stayed with him in a hotel and after about seven days, when they were returning, on the way, the Police caught them. In between all that period, she has not made any complaint to anyone and has not raised any alarm. Had she been forcefully taken by the appellant or the appellant made forceful physical relation with her against her will or consent, she would definitely raised alarm or to made complaint to the persons who met her on the way or on the

¶101

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¶102

hotels or even the bus stand where they boarded in the bus but she did nothing, it appears that she was engaged in making consensual physical relation with the appellant and stayed with him. Since, it is held that the prosecutrix is not below the 18 years of age, she is capable to give her consent and therefore, it cannot be said that the appellant kidnapped her, procured a minor girl with the intention to illicit intercourse or committed rape upon her.

¶103

22. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case.

¶104

23. Considering the evidence available on record, the evidence with regard to the age and conduct of the prosecutrix, we are of the opinion that the prosecutrix was more than 18 years of age at the time of incident, she eloped with the appellant on her own will and further she was the consenting party with the appellant in making physical relation with him. Therefore, in the above facts and circumstances of the case, the offence under Sections 363, 366, 376 (2)(n) of IPC and Section 6 of POCSO Act are not made out against the appellant.

¶105

24. For the foregoing reasons, the appeal is Allowed. T he impugned judgment of conviction and sentence dated 08.02.2024 is set aside .

¶106

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¶107

The appellant is acquitted from all the charges leveled against him. The appellant is in jail since 07/11/2021. He be released forthwith if not required in any other case.

¶108

25. Keeping in view the provisions of Section 437-A CrPC, the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one sureti in the like amount before the Court concerned 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.

¶109

26. The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

¶110

Sd/Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

¶111

sagrika

Umesh Kumar Yadav v. State of Chhattisgarh

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Umesh Kumar Yadav v. State of Chhattisgarh

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