Kanhaiya Yadav v. State Of Chhattisgarh

Chhattisgarh HC18 Feb 2025CRA/239/2016

Case brief

AI extract

What is this about?

CGHC CRA No. 239 of 2016, decided 19.02.2025 (Ravindra Kumar Agrawal, J.): POCSO conviction (Ss.363, 366-A IPC; S.6 POCSO) reversed; victim's minority not proved — school register unproved (author not examined), ossification test 19 years ± 2; victim major, voluntary elopement, temple marriage, agreement Ex.D/1, consensual relations; S. Varadarajan applied; S.35 Evidence Act, S.94 JJ Act 2015, Rule 12 JJ Rules 2007; Alamelu; Rishipal Singh Solanki; P. Yuvaprakash; Ramdev Chauhan; acquittal; S.481 BNSS bail bond.

What did the court decide?

Appeal allowed; appellant acquitted of all offences; impugned judgment of conviction and sentences set aside; bail bond to continue for a further period of six months under Section 481 of B.N.S.S. 2023; trial court record to be sent back for compliance. ¶102

Kanhaiya Yadav Vs State Of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether on the date of the incident the victim was a minor (below 18 years of age). +1 more

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Court's answer

The entry of the victim's date of birth (09.08.1998) in School Register Ex.P/2C has no evidentiary value: PW02, the teacher who proved it, was not its author and the basis on which the date of birth was entered was not proved.

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Ratio / Principle

There is no uniformity or corroboration on the victim's age; in the absence of cogent and clinching evidence, and particularly in view of the ossification test report Ex.P/20 showing average age about 19 years (with a two-year margin of error admitted by the doctor), it is not safe to hold that the victim was minor and below 18 years on the date of incident.

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Key takeaways

The victim herself called the appellant to Kawardha Bus stand (threatening suicide if he refused), went with him of her own will, was married at Bhoramdev temple, executed agreement Ex.D/1, resided as his wife and had physical relations with him with her consent.ratio¶91
Applying the 'taking' versus 'allowing to accompany' distinction in S. Varadarajan, on this evidence the victim cannot be said to have been kidnapped, nor the appellant to have procured a minor girl for illicit intercourse or committed rape upon her.ratio¶94

Detailed headnote1 paragraphs

Criminal appeal against conviction under Sections 363 and 366-A IPC and Section 6 of the POCSO Act, 2012 allowed; acquittal. (i) Age of victim: date-of-birth entry in School Register Ex.P/2C proved by a teacher who was not its author, without proving the basis of the entry, has no evidentiary value (following Alamelu, Rishipal Singh Solanki and P. Yuvaprakash on Section 35 Evidence Act and Section 94 JJ Act standards); ossification report Ex.P/20 gave average age about 19 years with a two-year margin of error (Ramdev Chauhan), and the victim and her father's admissions contradicted minority; prosecution failed to prove the victim was below 18. (ii) Kidnapping/rape: victim admitted she called the appellant, went with him of her own will, married him at Bhoramdev temple, executed agreement Ex.D/1 and had consensual relations; applying S. Varadarajan (taking vs. allowing to accompany), no 'taking', kidnapping, procurement of a minor for illicit intercourse or rape made out. Conviction and sentences set aside; bail bond to continue six months under Section 481 BNSS, 2023.

2025:CGHC:8761

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 239 of 2016

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1 - Kanhaiya Yadav S/o Mathura Yadav Aged About 23 Years R/o Maradabra, Police Station Chilphi, Civil And Revenue District Kabirdham, Chhattisgarh., Chhattisgarh

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versus

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1 - State Of Chhattisgarh Through Station House OfÏcer, Police Station Sahaspur Lohara, District Kabirdham, Chhattisgarh., Chhattisgarh.

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		..	. Respondent
For Appellant	: Ms. Aid)	Sameeksha Gupta, Advocate	(through Legal
For Res./State	: Ms.	Isha Jajodia, Panel Lawyer

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Hon’ble Shri Justice Ravindra Kumar Agrawal Judgment on Board

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19.02.2025

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1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 10.02.2016 passed by the learned Special Judge [Protection of Children from Sexual Offences Act, 2012], (Fast Track Court), Kabirdham (C.G.) in Special Session Trial No. 150/2015 whereby the appellant has been convicted and sentenced as under:-

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Conviction U/S	Sentence	Fine	In default	of
			payment Fine	of
Under Section	Rigorous	Rs. 500/-	Rigorous

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363 of Indian Penal Code	imprisonment for 04years		imprisonment for 02 months
Under Section	Rigorous	Rs. 500/-	R. I. For 02
366-A of Indian	imprisonment		months
Penal Code	for 4years
Under Section 6	Rigorous	Rs. 5,000/-	R.I. for 05
of the Protection	imprisonment		months
of Children from	for 10 years
Sexual Offences	f
Act, 2012

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All the sentences have been directed to run concurrently.

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2 . Case of the prosecution, in brief, is that on 04.09.2015 the father of the victim (PW4) lodged a report to the police with the allegation that the appellant has taken the victim alongwith him by his motorcycle to brought foodgrains but has not returned back till date. The appellant has kidnapped his minor daughter and kept her away from his lawful guardianship. The offence under Section 363 and Section 366-A of IPC has been registered against the appellant vide FIR Ex. P/5. During the course of investigation, the victim (PW03) was recovered on 05.09.2015 from the possession of the appellant and recovery Panchanama Ex. P/6 was prepared in presence of the witnesses. The victim was sent for her medical examination to Community Health Centre, Sahaspur Lohara where Dr. Pushpa Kharsan (PW07) has medically examined her and gave her report Ex. P/9. While medically examine the victim, the doctor has not found any external injuries on her body and no any struggle sign has been found. She was referred to higher centre for gynecological examination and for expert opinion and also for x-ray examination for age determination. Two slides of her vaginal swab were prepared, sealed and handed it over to police for its chemical examination. With respect to the age and date of birth of the victim, the Police has seized the School Register from Government Primary School, Ranveerpur and after retaining the attested true copy of School register Ex. P/2C, the original Register Ex.P/2 was returned to the School. The date of birth certificate of the

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victim has also been seized by the police from the Headmaster of the said School which is Ex. P/ 3. The spot map (Ex.P/1) was prepared by the Patwari and spot map (Ex. P/8) was prepared by the Police. The victim was also sent for X-ray examination to district hospital Kabeerdham where Dr. J. K. suryavanshi (PW08) has radiologically examined her and gave report Ex. P/20 and according to the radiological examination the doctor has opined that the average age of the victim is 19 years. The appellant was arrested on 05.09.2015 and he too was sent for his medical examination to Community Health Centre, Sahaspur Lohara where Dr. S. Kharsan has medically examined him and gave his report and opined that the appellant is able to perform sexual intercourse. Vaginal slides and underwear of the victim and semen slides and underwear of the appellant were sent for chemical examination to State FSL, Raipur.

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3 . The statement of witnesses were recorded under section 161 of Cr.P.C. Statement of the victim under Section 164 of Cr.P.C. have also been recorded. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Section 363, 366, 376 of Indian Penal Code and Section 3 & 4 of the Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act, 2012”) before the learned Judicial Magistrate First Class, Kabeerdham. The case was committed to the learned Court of the Session Judge, Kabeerdham from where the same has been transferred to the learned trial Court for its trial.

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4 . The Trial Court has framed charges against the appellant namely- Kanhiya Yadav for the offences under Sections 363, 366-A of IPC and Section 6 of POCSO Act, 2012 or in alternative Section 376 of IPC. The appellant denied the charge and claimed trial.

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5. In order to establish the charge against the accused, the prosecution has examined as many as 08 witnesses. The statement of appellant was also recorded under section 313 of Cr.P.C. in which he denied the material

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appearing against him, plead innocence and submitted that he is innocent and has falsely been implicated in the case. He further submitted in his 313 of Cr.P.C. statement that the victim herself insisted to take her with him otherwise she would commit suicide and pressurized him to perform marriage with her and then he took her to Bhoramdev temple where he prepared an afÏdavit in the Court and both of them had gone to temple and performed marriage by applying vermilion ( Sindoor ) on her head.

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6. After appreciation of oral & documentary evidence available on record, the learned trial court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence this appeal.

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7. Learned counsel for the appellant would argue that the prosecution has failed to prove its case against the appellant beyond reasonable doubts. There are material omission and contradiction in the evidence of the prosecution witnesses, which cannot be made basis for his conviction. He would also submit that there is no cogent and clinching evidence with respect to the age and date of birth of the victim to prove that she was minor on the date of incident whereas from the ossification report Ex. P/ 20 the victim was found to be about 19 years of age. The School Register Ex. P/2C produced by the prosecution has not been proved in accordance with law by examining its author or the material on which the entries have been made in it. She would further submit that from the evidence of the victim (PW02) it clearly reveals that she was the consenting party and she herself eloped with the appellant on her own will without raising any objection, they visited various places ultimately executed a afÏdavit at Kabeerdham Court, went to a temple and performed marriage and thereafter made physical relation consensually all this goes to show that she was consenting party and engaged in making consensual physical relationship with the appellant without any protest. She being the consenting party to the act of the appellant and accompanied with the appellant, they visited place to place

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without any complaint, no offence either kidnapping or rape are made out against the appellant and he is entitled for acquittal.

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8. On the other hand, learned counsel for the State while opposing the arguments advanced by the counsel for the appellant contended that the prosecution has proved its case beyond reasonable doubt. There are overwhelming evidence against the appellant that he committed rape upon the victim who was minor on the date of incident. The ossification report is the opinion of the doctor and only on the basis of the ossification report it cannot be said that the victim was major on the date of incident. From the school record she was proved to be minor and she was subjected to sexual intercourse by the appellant. Due to her minority the victim was not able to give her consent yet the appellant took her with him and committed forceful intercourse with her which does amount to offence of rape upon a minor girl and the learned trial court after considering the entire evidence available on record, by the impugned judgment has rightly convicted and sentenced the appellant which is absolutely justified and needs no interference.

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9. I have heard the counsel for the parties and perused the material available on record.

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10. The first and foremost question arises for consideration would be the age of the victim as to whether on the date of incident she was minor or not. The prosecution has mainly relied upon the school Register Ex. P/2C which is sought to be proved by PW-2, who was the Teacher in the school. The prosecution has also relied upon the ossification report Ex. P/20 which is proved by the Dr. J. K. Suryavanshi (PW08).

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11. PW02, teacher of the school has stated in his deposition that he is posted as Teacher at Government Primary School, Ranveerpur. The Police has seized the School Register with respect to the date of birth of the victim and after retaining the attested true copy of the School register Ex. P/2C, original School

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Register (Ex.P-2) was returned to the school which she brought with her. As per entries made in the School Register, the date of birth of the victim is mentioned as 09.08.1998. She also proved the certificate issued by her Ex. P/3. In his cross examination, she admitted that the entries made in the school register Ex. P/2 has not been made by her. She did not know who had got made entries with respect to the date of birth of the victim. From this evidence it is quite vivid that PW02 is not the author of the school Register and the basis on which the date of birth of the victim has been made has also not been proved.

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12. The admissibility and evidencery value of the School Register has been considered by the Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of

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its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385 , in which the Supreme Court has observed as under:

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"40.Undoubtedly, the transfer certificate, Ex.P-16 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

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evidence of the truth of the facts or contents of the documents. The truth or 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 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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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:

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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 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.

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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 subsection (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 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.

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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

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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 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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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 :

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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 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

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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 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

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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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15. The other piece of evidence with respect to the age of the victim is the

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ossification test report Ex. P/20. The said report was proved by the Dr. Dr. J. K. Suryavanshi (PW08) who stated in his evidence that on 07.09.2015 he conducted the ossification test of the victim and found that her average age is 19 years. He admitted in his cross examination that as per the medical jurisprudence there was error of margin of two years on either side.

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16. In the matter of Ramdev Chauhan Vs. State of Aasam reported in 2001 (5) 714 in paragraph 51 and 52 the Hon'ble Supreme Court has held as under :-

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“51. In his report the doctor has detailed all the data on which he reached his conclusion. I do not propose to extract all such data here except pointing out that such data collected by Dr B.C. Roy is in consonance with the guidelines provided in the textbooks on medical jurisprudence (vide Modi's Medical Jurisprudence and Jhala & Raju's Medical Jurisprudence). Ossification test is done for multiple joints, for which the

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radiological report was obtained. The margin of error according to authorities on medical jurisprudence can be two years either way as the maximum. In this context it is useful to extract the relevant passage from Jhala & Raju's Medical Jurisprudence (6th Edn., p. 198):

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"If ossification test is done for a single bone the error may be two years either way. But if the test is done for multiple joints with overlapping age of fusion the margin of error may be reduced. Sometimes this margin is reduced to six months on either side.

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" 52. Of course the doctor's estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where we grope in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of his age it has certainly to be considered.

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17. The victim (PW03) has stated in her evidence that her date of birth is 09.08.1998. In cross-examination, she admitted in paragraph 10 that at the time of her medical examination she disclosed her age as 19 years and even in Raipur Hospital she disclosed her age as 19 years.

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18. PW05, the father of the victim has stated in his evidence that the age of his daughter is about 17 years. In cross-examination he admitted that he could not remember the date of birth of his daughter/victim. He did not know the date of birth of all his children. He has got recorded the date of birth of his children with the Kotwari register. He further admitted that he did not gave the Kotwari panji to the police. The victim got admitted in the school by his

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brother-in-law. He further admitted that in the village due to the overage of the children, they were admitted in the school after reducing their age. He further admitted that at the time of incident, his daughter was major and could understand her wellbeing. When the question has been asked by the Court he again stated that her daughter was aged about 17 years at the time of incident.

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19. From evidence of the victim, her father pw05, the teacher of the school and the evidence of the Dr. G. K. Suryavanshi (PW08), it is quite vivid that there is no uniformity or corroboration with the age of the victim that on the date of the incident, she was minor and less than 18 years of age. In absence of any cogent and clinching evidence particularly in view of the ossification test report Es. P/20 in which she was found to be aged about 19 years, it would not be safe to hold that the victim was minor and less than 18 years of age on the date of incident yet the learned trial Court has held her minor.

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20. So far as the offence of kidnapping and rape is concerned, I again examined the evidence of the victim and other witnesses.

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21. The victim (PW03) has stated in her evidence that on 31.08.2015 at about 11.00am when she had gone to Aanganbadi to get grocery on the way the appellant took her in his motorcycle and they had gone toward Lohara. The appellant took her to Madwa at Bhoramdev temple where he performed marriage with her by applying vermilion (Sindoor) on her forehead. From Bhoramdev the appellant took her to village Aamatola in the house of her sister where they were resided for 4 to 5 days. During these period the appellant had committed rape upon her regularly. From village Aamatola she was being taken to village Maradhabra and after staying a day there they had gone to village Chilphi. At that time, her parents have also came to village Chilphi Police Station and, thereafter, they have taken her with them. In

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cross-examination she admitted that on 03.09.2015 she has executed an agreement in the Court in which her photograph has been annexed which is exhibited as D/1. She also admitted the contents of the agreement that she has scribed the said content. She also admitted that she has executed the said agreement on her own free will and the Notary had verified the sentence. She further admitted that in the Court statement also she disclosed her age as 19 years and she wanted to resided with the appellant and does not want to convict him. She further admitted in her crossexamination that on the date of incident, she herself came from Ranveerpur to Kawardha Bus stand and called the appellant there. When the appellant refused to came there she stated to him that if he will not come at Kawardha Bus stand, she will commit suicide thereafter, the appellant came there and both of them went to Bhoramdev Mandir and performed marriage.

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She further admitted that in the house of sister of the appellant at village Aamatola, she on her own will resided with the appellant. The appellant is her husband and they have married for her whole life. She also met with the family members and parents of the appellant and they were also satisfied. She further stated that she does not want any action against the appellant. She also admitted that they have made physical relationship with each other on her own free will and consent. She further stated that she on her own will had gone with the appellant and performed marriage with him and resided together as husband and wife and made physical relation with each other with their consent.

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22. When the victim stated that she on her own will had gone with the appellant and she had called the appellant at Kawardha Bus stand and asked to perform marriage with her and threatened him if he will not come, she will commit suicide. In such situation when the appellant came there, both have gone to Bhoramdev temple, performed marriage and resided

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together as husband and wife and engaged in making consensual physical relation. In such evidence it cannot be said that the victim was kidnapped or the appellant procure a minor girl for illicit intercourse or even the appellant committed rape upon the minor victim.

¶95

23. In the case of S. Varadarajan Vs. State of Madras , AIR 1965 SC 942, the Hon'ble Supreme Court has considered the taking and allowing a minor to accompany a person and has held in Para 9 and Para 10 of its judgment that:-

¶96

“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 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.

¶97

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

¶98

¶99

the keeping of her lawful guardian and is, therefore, not tantamount to "taking".

¶100

24. When the victim is found to be major and more than 18 years of age and she has eloped with the appellant on her own free will, performed marriage at Bhoramdev temple, executed an agreement of marriage Ex. D/1 and engaged in making consensual physical relationship with the appellant, no offence either of kidnapping, procuring a minor girl for illicit intercourse or the offence of rape has been made out against the appellant.

¶101

25. In view of the aforesaid reasons this Court find force in the argument advanced by the learned counsel for the appellant that no offence are made out against the appellant and this Court is also in agreement with the same.

¶102

26. In the result, The appeal filed by the appellant is allowed. The appellant is acquitted from all the offences. The impugned judgment of conviction and sentences are set aside. The appellant is reported to be on bail. His bail bond shall continue for further period of six months as provided under Section 481 of B.N.S.S. 2023.

¶103

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

¶104

Sd/-

¶105

(Ravindra Kumar Agrawal) Judge

¶106

amita

¶107

Digitally signed by AMITA DUBEY Date: 2025.04.02 15:33:20 +0530

Kanhaiya Yadav v. State Of Chhattisgarh

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Kanhaiya Yadav v. State Of Chhattisgarh

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