Allowed

Rajkumar v. State of Chhattisgarh

Chhattisgarh HC11 Sept 2025CRA/510/2019

Case brief

AI extract

What is this about?

Appeal against conviction for kidnapping and aggravated penetrative sexual assault under Sections 363, 366-A IPC and Section 6 POCSO. The court held the victim was not shown to be minor on credible evidence, that she accompanied the accused voluntarily without inducement or taking, and that her conduct indicated consent; it acquitted the appellant and allowed the appeal.

What did the court decide?

Appellant acquitted of all charges; bail bonds kept operative for six months under Section 481 BNSS.

Rajkumar Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2025)

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CRA No.510 of 2019

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Digitally signed by SHOAIB SHOAIB ANWAR ANWAR Date: 2025.09.16 16:38:42 +0530

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2025:CGHC:46871

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 510 of 2019

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Rajkumar S/o Chandrahas Bagh Aged About 20 Years R/o Saldih Police Station- Sankra, District- Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh

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... Appellant

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versus

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State Of Chhattisgarh Through The Station House Officer, Police Station- Sankra, District- Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh

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... Respondent(s)

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(Cause title taken from CIS)

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For Appellant : Smt. Anjali Pradhan, Advocate. For Respondent/State : Ms. Isha Jajodia, Panel Lawyer.

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Hon'ble Shri Justice Bibhu Datta Guru

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Judgment on Board

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12/09/2025

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This criminal appeal preferred under Section 374(2) of the

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Cr.P.C is against impugned judgment of conviction and order

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of sentence dated 30.10.2017 passed in Special Criminal Case No. H-13/2017 by the learned Additional Sessions Judge, Fast

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Track Court/Special Court (Protection of Children from Sexual Offences Act), Mahasamund C.G., whereby the appellant has

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been convicted and sentenced as under:-

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Conviction	Sentence
U/s 363 of the IPC	Rigorous imprisonment for 04
	years and fine of Rs. 500/- with default stipulation.
U/s 366-A of the IPC	Rigorous imprisonment for 04 years and fine of Rs. 500/- with default stipulation.
U/s 6 of the POCSO Act	Rigorous imprisonment for 10
	years and fine of Rs. 1,000/-
	with default stipulation.
All the sentences wer	e directed to run concurrently.

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Case of the prosecution in brief is that the prosecutrix submitted a written complaint at Police Station Sankra stating that about 3–4 months prior, she had gone to attend a marriage ceremony at village Golazhar, where she became acquainted with the accused. Thereafter, she occasionally

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used to talk with him over the mobile phone. On 21.12.2016, the accused came to her house at village Utekel and, under

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the pretext of marriage, forcibly took her to his house at village Saldih. However, the accused did not marry her and instead committed forcible sexual intercourse with her repeatedly for several days. The accused also used to assault her and did not allow her to go outside. Subsequently, she managed to escape and returned to her parents’ house at village Utekel. On the basis of her complaint, Police Station Sankra registered Crime No. 27/2017 against the accused for offences punishable under Sections 363, 366, 376 of the Indian Penal Code and Sections 4 & 6 of the Protection of Children from Sexual Offences Act, 2012.

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During investigation, Spot Map (Ex.P/02) was prepared. With regard to date of birth of the Victim, Birth and Death reporting form (Ex.P/10) was seized. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court.

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After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial.

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In order to bring home the offence, the prosecution has examined 18 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. No witness has been examined in support of his defense.

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The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 30.10.2017 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal.

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Learned counsel for the appellant submits that the impugned judgment is perverse, erroneous, and contrary to law and facts, and therefore liable to be set aside. It is urged that, as per the prosecution’s own case, the prosecutrix was more than 17 years of age on the date of the incident and, in her own deposition, admitted that she had voluntarily accompanied the appellant from her house. The prosecutrix and the appellant lived together for a considerable period without objection or resistance, which clearly reflects that she

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was a consenting party, and the conviction recorded against the appellant is unsustainable in law. It is further contended that the medical report revealed no external or internal injuries on the prosecutrix and indicated that she was habitual to sexual intercourse, which demolishes the prosecution’s version of forcible relations. The prosecution has failed to discharge its duty of proving the guilt of the appellant beyond reasonable doubt, and the trial Court has erred in convicting the appellant on the basis of contradictory and unreliable evidence of prosecution witnesses. The findings recorded by the learned trial Court are perverse, harsh, and not supported by material evidence on record. Hence, the conviction deserves to be quashed and the appellant acquitted of the charges.

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Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed.

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I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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The first question for consideration would be, whether the trial Court is justified in convicting the appellant for the offences under Sections 363 & 366 of the IPC.

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The appellant has been convicted for offence of 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:-

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“ 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.”

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The object of Section 359 of the IPC is at least as much to

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protect children of tender age from being abducted or seduced for improper purposes, as for the the protection of

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the rights of parents and guardians having the lawful charge

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or custody of minors or insane persons. Section 361 has four ingredients:-

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(1) Taking or enticing away a minor or a person of unsound mind.

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(2) Such minor must be under sixteen years of age, if a male, or under eighteen years or age, if a female.

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(3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind.

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(4) Such taking or enticing must be without the consent of such guardian.

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

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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, it is evident from the statement of Prosecutrix (PW-3) on 21.12.2016, at about 4:00

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PM, the accused allegedly called the prosecutrix on her mobile phone and informed her that he was coming to village Utekel. Later the same night, around 11:00 PM, the accused again called and asked her to come out of her house to the village square. Acting upon this, at about 11:30 PM, the prosecutrix came out of her house and went to the square, where the accused was waiting. It is stated that the accused then told her that he would marry her and asked her to accompany him. The prosecutrix replied that marriage should be with the permission of her family members, but the accused allegedly refused and threatened that if she did not go with him, he would consume poison and die. On account of such persuasion and threat, the prosecutrix went along with the accused to village Saldih on his motorcycle and reached his house.

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As such, there is no evidence on record that at any point of time, the appellant solicited or lured or induced or enticed the victim to go with him. 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

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opinion of this Court, the act/omission of the appellant, if any, would not tantamount to “taking” within the meaning of Section 361 of the IPC. 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 the offences punishable under Sections 363 & 366 of the IPC.

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The second question arises before this Court whether the victim was minor on the date of incident or not?.

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The Victim (PW/3) in her deposition has clearly stated that stated that her age was 17 years, her date of birth being 21.10.2000. Father of the victim (PW/2) has stated that her daughter date of birth is 21.10.2000. In cross- examination, he has denied the suggestion that he had mentioned prosecutrix date of birth to the kotwar on approximation basis.

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PW/6 – Kotwar of the village, who produced the Kotwar Register, as Article A-1C has stated in his statement that prosecutrix father (PW/2), had come to him for recording her date of birth, and he had not brought any document in support of the same. He further stated that he had recorded prosecutrix date of birth on the basis of the oral information

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given by her father.

Perusal of the aforesaid statements of the witnesses would show that though there is entry regarding date of birth of the victim in the Kotwar Register, but no documentary evidence has been produced before the Kotwar and the date of birth has been mentioned as per the oral information given by the prosecutrix father.

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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:

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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

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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 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

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(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

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

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

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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 XXXX

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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 sub-section

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(2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance.

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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 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

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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

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

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Inspector of Police, 2023 (SCC Online) SC 846 , Hon'ble

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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 determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex

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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

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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 equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.

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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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22. Very recently in the matter of Tilku Alias Tilak Singh V. The

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State Of Uttarakhand , reported in 2025 INSC 226 , the Supreme Court has held that he victim, who is between 16 to 18 years of age is very much in the age of understanding as to what was right and wrong for her. Relevant para of the said judgment states as under:-

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“16. Even if the finding of the learned Single Judge of the High Court that the prosecutrix was between 16 to 18 years of age is to be accepted, in our view, the offence under Sections 363 and 366 IPC would still not be made out.

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17. This Court in the case of S. Vardarajan v. State of Madras, reported in 1964 SCC OnLine SC 36 had an occasion to consider almost similar facts that arise for consideration in the present case. This Court has observed thus:

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“7. …..It will thus be seen that taking or enticiting away a minor out of the keeping of a

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lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to “taking” out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law “taking”. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the

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appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her

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father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her…….”

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18. It is thus clear that the prosecutrix, who according to the learned Single Judge of the High Court, was between 16 to 18 years of age was very much in the age of understanding as to what was right and wrong for her.

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19. From the evidence of the prosecutrix itself, it will be clear that she had voluntarily gone along with the appellant herein, travelled to various places and also resided as husband and wife at Dehradun.”

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Thus, applying the well settled principles of law laid down by

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the Hon’ble Supreme Court in the matter of Tilku Alias Tilak Singh (supra), it is held reliable that the victim was major aged about between 16-18 years at the time of incident according to the principles of the Supreme Court. Further it is also stated in the above judgment that the victim, who is between 16 to

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18 years of age is very much in the age of understanding as to

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what was right and wrong for her.

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The next question for consideration would be whether the appellant has committed rape upon her or not and commit the said heinous offence punishable under Section 6 of the POCSO Act.

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From the statement of the prosecutrix, it is evident that she had developed acquaintance with the accused about 3–4 months prior to the incident at a marriage function in village Golazhar, and thereafter both of them remained in regular contact over mobile phone. The accused frequently conversed with her and expressed his desire to marry her. It also stands admitted by the prosecutrix herself that on 21.12.2016, upon being called by the accused late in the night, she voluntarily came out of her house at about 11:30 p.m. and met him at the village square. She further accompanied him on his motorcycle to village Saldih, despite her own admission that her family’s consent was not obtained. Her further deposition reveals that she resided with the accused at his house in village Saldih for about two months, during which period she

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maintained physical relations with him on the promise of marriage. The fact that she continued to reside with the accused for such a considerable period without raising any protest or complaint indicates that the relationship was consensual.

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Subsequently, when the accused declined to marry her and allegedly turned her out of his house, the prosecutrix raised allegations of coercion. However, her own conduct staying with the accused for two months, moving with him of her own volition at midnight, and maintaining relations on repeated occasions and further she never disclosed about the incident clearly establishes that she was a consenting party throughout.

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Dr. Smt. Chandrakiran (PW/23) who conducted the medical examination of the victim, deposed that the prosecutrix herself informed her that for the last three months a young man had been committing sexual intercourse with her by force. On clinical examination, the doctor found her to be a

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young girl, physically and mentally healthy. Her menstrual cycle was stated to be regular and the last date of

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menstruation was 02.01.2017. The doctor further opined that the breasts of the prosecutrix were fully developed, and on genital examination her external genitalia were also fully developed. There were no signs of recent injury. On internal examination, the hymenal membrane was found to be torn and the tear appeared to be old.. It is further stated that the victim had not suffered any kind of injury or any mark of struggle that should have been made during commitment of rape on her private parts or on any part of her body and she is habitual to sexual intercourse.

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Perusal of the above statements and particularly looking to the fact narrated and the evidence adduced by the doctor and as also there is no mark was found on any part of the body of the victim. Hence the prosecution would not prove its case firmly that the victim has been assaulted by aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act.

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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 any offence of rape

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¶172

with the victim, rather it reflects from the evidence that the victim herself had made consensual sexual intercourse with the appellant. Thus, it cannot be said that the appellant committed the offence.

¶173

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.

¶174

For the foregoing reasons, the prosecution has not proved that the appellant had forcefully taken away the Victim and commit sexual assault with her forcibly 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, I am of the view that the appellant is entitled to be acquitted.

¶175

¶176

CRA No.510 of 2019

¶177

The accused is acquitted of the charges for which he was tried. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal Appeal is allowed .

¶178

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.

¶179

Sd/- (Bibhu Datta Guru) Judge

¶180

Shoaib

Rajkumar v. State of Chhattisgarh

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Rajkumar v. State of Chhattisgarh

Case brief

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