Upesh Uike @ Monta Vs State of Chhattisgarh

The appeal is directed against the judgment of conviction and sentence dated 22.10.2024 passed by the Additional Sessions Judge (F.T.S.C.) (POCSO) Rajnandgaon, District Rajnandgaon C.G. in Special Special Criminal (POCSO) Trial No. 61/2020, whereby the appellant has been convicted as under:-

¶18

2

¶19

CRA No. 449 of 2025

¶20

Conviction	Sentence
Under Section 363 of IPC	R.I. of 03 years and fine of Rs. 500/- in default of payment of fine to further undergo R.I. for a period of 01 months.
Under Section 366 of IPC	R.I. of 05 years and fine of Rs. 1,000/- in default of payment of fine to further undergo R.I. for a period of 02 months.
Under Section 376(3) Of IPC	R.I. for 20 years and fine amount of Rs. 10,000/- in default of fine amount additional R.I. for 06 months
Under Section 5 (L)/06 of POCSO	Imprisonment for life (entire natural life of accused) and fine amount of Rs. 20,000/- in default of payment of fine to further undergo R.I. for a period of 01year.

¶21

Case of the prosecution is that the father of the victim PW-9 lodged a report about missing of his daughter/ victim (PW-11) with regard to her missing. On the basis of the same, the police inquired and rescued the victim on 03/10/2020 from the custody of the appellant wherein she stated that she knows the accused, who lives in her neighborhood, since childhood. As they knew each other and shared the same neighborhood, they frequently met and interacted. During this time, the victim and the accused developed a love relationship. The victim had been in a relationship with the accused since she was approximately 11

¶22

3

¶23

CRA No. 449 of 2025

¶24

years old. On 1^st October 2020, after dinner, the victim and her family slept in the same room. At about 11:30 pm, the victim woke up to go to the bathroom, as the accused had previously told her they were going to run away from home. As per the instructions of the accused, the victim left her house at night without informing anyone and met the accused and then he lured the victim by saying that he would marry her and forcibly took her on his scooty to Dongargarh. The accused stopped the scooty under a tree in front of the Nagar Palika Dharamshala in Dongargarh and by saying that he would marry her, he lured her and had physical relations with her. On the basis of the above facts, the police arrested the appellant.

¶25

In order to bring home the above-stated offence, the prosecution examined as many as 15 witnesses and exhibited 31 documents. Statement of the appellant under Section 313 of the Cr.P.C. was recorded, wherein he has pleaded innocence and false implication in the matter.

¶26

After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned aforesaid. Hence this appeal.

¶27

Learned counsel for the appellant submits that the impugned judgment is contrary to law, facts, and evidence on record, and hence liable to be set aside. The prosecution has failed to prove

¶28

4

¶29

CRA No. 449 of 2025

¶30

its case beyond reasonable doubt, as key witnesses, including the victim and her parents, gave contradictory statements and did not support the prosecution story. He further submits that the age of the victim was not conclusively established, with the Dakhil Kharij register from a private school being unreliable, and even the victim’s father admitted he did not know her exact date of birth. He further submits that the medical evidence does not support allegations of force or sexual assault, as no injuries or signs of forcible intercourse were found, which was confirmed by the examining doctor. Moreover, the appellant is HIV positive and undergoing treatment, making the alleged act highly improbable. He further submits that the trial court failed to appreciate material contradictions and omissions in the prosecution's case and convicted the appellant on legally unsustainable grounds. Therefore, the conviction and sentence are arbitrary and unjust, deserve to be set aside.

¶31

On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the statement of the victim and other witnesses are fully reliable. There are sufficient evidence available on record to hold that the appellant is guilty for the alleged offence and the learned trial Court has absolutely justified in passing the judgment of conviction and sentence against the appellant which does not require for any interference.

¶32

5

¶33

CRA No. 449 of 2025

¶34

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

¶35

The first question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 363 of the IPC ?

¶36

The appellant has been convicted for offence under Section 363 of the IPC, which is punishable for kidnapping. Kidnapping has been defined under Section 359 of the IPC. According to Section 359 of the IPC, kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states as under:-

¶37

“ 361. Kidnapping from lawful guardianship .-Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.”

¶38

The object of Section 359 of the IPC is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients:-

¶39

So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18

¶40

6

¶41

CRA No. 449 of 2025

¶42

years of age; (ii) such minor was in the keeping of a lawful guardian, and (iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian.

¶43

The Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras 1, took the view that 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 and held that 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 and held as under:-

¶44

“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. 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

1 AIR 1965 SC 942

7

CRA No. 449 of 2025

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. But that part 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”.

¶49

Reverting to the facts of the present case in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra), upon a careful consideration of the evidence, particularly the testimony of the prosecutrix, this Court is of the view that the offence under Section 363 IPC is not made out. In her cross examination she has accepted the fact that while going in scooty with the appellant she did not tried to escape nor did she shout for help. On the other hand, it is clearly established that the victim herself accompanied the appellant and there is no inducement to the victim by the appellant to leave the lawful guardianship. Therefore, in the considered opinion of this Court, the act/omission of the appellants, if any, would not tantamount to “taking” within the meaning of Section 361 of the IPC in light of judgment of the Supreme Court in S.Varadarajan (supra). Similarly, there is no evidence of enticing the minor victim by the appellant. As such, the trial Court is absolutely unjustified in convicting the appellant for offence under Section 363 of the IPC.

¶50

8

¶51

CRA No. 449 of 2025

¶52

The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 366 of the IPC ?

¶53

Bare perusal of the evidence of the victim girl, it appears that victim girl voluntarily accompanied the accused without being enticed or influenced. Mere accompanying a person without being induced does not constitute an offence under Section 366 of the IPC. Though, the learned State counsel vehemently contended that age of the victim girl has proved by the prosecution that she is minor as on the date of incident, nevertheless, in order to convict the accused for the offence under Section 366 of the IPC, other two essential ingredients i.e. the victim girl must be induced by the accused and she must be induced by the accused person to go from a place or to do any act with an intent that such girl may be knowing that it is likely that she will be forced or seduced to illicit intercourse by another person. As such, the prosecution has failed to prove the ingredients of offence under Section 366 of the IPC.

¶54

The next question arose for the consideration would be whether the victim was minor and less than 18 years of age on the date of incident or not ?

¶55

In order to consider the age of the victim, we have examined the evidence available on record.

¶56

The victim (PW-11) has stated in her evidence that she is studying

¶57

9

¶58

CRA No. 449 of 2025

¶59

in class- 9^th and her date of birth is 16.03.2006. Further in her cross examination she has stated that she don’t know her date of birth. Though the mother of the victim (PW-6) stated that the age of the victim is 16/03/2006, her father (PW-9) stated that he did not remember the date of birth of her daughter.

¶60

From the testimony of the Tejesh Rahul (PW-2) Administrator of Aziz Public School, Indamara, it appears that the date of birth of the victim has been taken from the school’s Dakhil Kharij Register, wherein her date of birth is recorded as 16.03.2006. However, during cross-examination, the witness clearly admitted that the said register (Ex. P-5) does not mention the basis on which the birth date was recorded. He further accepts the suggestions that birth dates are usually recorded by mere estimation based on what was told by the parents, and in cases where the parents are illiterate or failed to provide accurate details, the birth date is guessed by the teacher.

¶61

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

¶62

"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

¶63

10

¶64

CRA No. 449 of 2025

¶65

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.

¶66

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:-

¶67

"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 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

¶68

11

¶69

CRA No. 449 of 2025

¶70

the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."

¶71

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:-

¶72

"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"."

¶73

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.

¶74

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:-

¶75

"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

¶76

12

¶77

CRA No. 449 of 2025

¶78

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."

¶79

In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &

¶80

Others, 2022 (8) SCC 602 , while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under:

¶81

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

¶82

33.2. 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

XXXX

XXX

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,

¶87

13

¶88

CRA No. 449 of 2025

¶89

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.

¶90

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.

¶91

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.

¶92

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.

¶93

33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on

¶94

14

¶95

CRA No. 449 of 2025

¶96

behalf of the accused in support of the plea that he was a juvenile.

¶97

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.

¶98

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.

¶99

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.

¶100

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."

¶101

15

¶102

CRA No. 449 of 2025

¶103

21. Recently, in case of P. Yuvaprakash Vs. State represented by

¶104

Inspector of Police, 2023 (SCC Online) SC 846 , Hon'ble Supreme Court has held in para 14 to 17 as under :

¶105

"14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to 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.

¶106

In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court

¶107

16

¶108

CRA No. 449 of 2025

¶109

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:

¶110

"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."

¶111

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:

¶112

"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

¶113

17

¶114

CRA No. 449 of 2025

¶115

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.

¶116

In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a threejudge 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."

¶117

Reverting to the facts of the present case in the absence of any corroborating document such as a birth certificate, hospital record or other contemporaneous evidence, the date of birth recorded in the school register cannot be treated as conclusive proof of age. The register, being based on unverifiable input and lacking an authentic source, fails to establish the prosecutrix’s minority beyond reasonable doubt. Therefore, it cannot be safely

¶118

18

¶119

CRA No. 449 of 2025

¶120

concluded that the victim was a minor at the time of the alleged incident.

¶121

Except for these evidences, no other evidence like ossification test report have been produced by the prosecution to determine her age that on the date of incident, she was minor or less than 18 years of age. The oral evidence of the witnesses victim, mother of victim and also Dakhil Kharij Register (Ex.P-5C) are not sufficient to hold that the victim was minor on the date of incident because of the reason that the date of birth mentioned in Dakhil Kharij Register is on assumption and no date of birth certificate is produced. There is every possibility that the date of birth of the victim was recorded in the Dakhil Kharij Register on assumption otherwise, the prosecution must have produced the relevant record on the basis of which her date of birth recorded in the said register. The evidence produced by the prosecution with respect to the age of the victim in the present case is not of that sterling quality which is sufficient to determine the age of the victim. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident in the present case.

¶122

The next question for consideration would be whether the appellant has committed rape upon her or not.

¶123

The prosecutrix, (PW-11) stated that she knew and recognized the accused, who resided in her neighborhood. She stated that at the time of the incident, she was studying in Class VI. She deposed

¶124

19

¶125

CRA No. 449 of 2025

¶126

that on the date of the incident, she was at home during the night and around 9:00–10:00 p.m., she went outside to answer the nature call when the accused, who was standing in the courtyard of her house, called out to her and asked for water. She brought water for him, and the accused then told her to accompany him for a ride. She agreed and sat on his scooter, following which he took her to Dongargarh. She stated that the accused kept her there for 2–3 days and had physical relations with her against her will.

¶127

During cross-examination, she stated that the incident occurred on 30 September, although she did not remember the year. She stated that the house of the accused was close to her house, in a densely populated area with houses nearby. The prosecutrix stated that when the accused took her away, he did not cover her mouth and she had not raised any objection or attempted to flee from the scooter. She confirmed that she sat behind him on the scooter. She stated that the incident occurred around 10:00–11:00 p.m., she went with the accused because he is her uncle in relation and stayed with him in a dharmshala, without entering their details in the register. She stated that she remained there for two days, and on the third day, she was taken back by her parents. She explained that she did not disclose the incident earlier due to threats to her life by the accused. She denied the suggestions that the case was filed falsely due to any property

¶128

20

¶129

CRA No. 449 of 2025

¶130

dispute with the accused.

¶131

Dr. Sohadra (PW-01) stated that in general examination: The victim was fully conscious and no injury marks on external organs were found. She further stated that on genital examination there were no signs of injury to the external genitalia. The hymen was torn, 2 was at the 11 o'clock position, and two fingers entered the vagina with pain. 4 vaginal slides were made, sealed, and given to the same constable for FSL. In her opinion, the victim's body showed no internal or external injuries. There were no signs of forced sexual intercourse. In her cross examination she accepted the suggestion that no signs of forced intercourse was found.

¶132

Bare perusal of the FSL report (Ex. P-28) clearly reveals that no semen stains or human sperm were detected on Ex.-A (underwear of the victim), Ex.- B (vaginal slide) and Ex.-C (underwear of the accused). These findings substantially weakens the prosecution case, as the absence of such evidence casts serious doubt on the occurrence of any sexual act or physical contact as alleged.

¶133

Having carefully considered the statement of the victim (PW-11), where her own deposition indicates that she was a willing participant in the relationship, and her conduct throughout shows voluntary company with the accused to different places, further absence of resistance or complaint, clearly demonstrates that she was a consenting party to the acts.

¶134

21

¶135

CRA No. 449 of 2025

¶136

Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that the appellant has committed rape upon her, rather it reflects from the evidence that the victim herself had made consented sexual intercourse with the appellant. Thus, it cannot be said that the appellant committed such heinous offence.

¶137

The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim 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 leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case.

¶138

Thus, the prosecution has not proved that the appellant had forcefully taken away the Victim, and from the evidence of the victim the same creates doubt and also the fact that since, it has also not proved that at the time of incident the Victim was minor, therefore, we are of the view that the appellant is entitled to be acquitted.

¶139

In the result, the appeal is Allowed . The impugned judgment of conviction and order of sentence dated 22.10.2024 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail. He be released forthwith if not

¶140

22

¶141

CRA No. 449 of 2025

¶142

required in any other case.

¶143

Keeping in view the provisions of Section 437-A Cr.P.C., 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 surety 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.

¶144

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.

¶145

Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

¶146

Jyoti/ $. Bhilwar

Upesh Uike @ Monta v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Upesh Uike @ Monta v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Photo Bai Vs State of Chhattisgarh

Jai Narayan Sahu Vs the State of Chhattisgarh

State of Chhattisgarh Vs Sanjay Tiwari

Bhagwat Vs State of Chhattisgarh

Damodar Singh Rajput Vs State of Chhattisgarh

Deputy Commsissioner of Income Tax Vs Satya Power and Ispat Ltd.