Chandrashekhar Vs State Of Chhattisgarh

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2026:CGHC:13643

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1829 of 2017

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1 - Chandrashekhar S/o Lal Singh Sika, Aged About 22 Years R/o Kosmarra, Police Station Komakhan, District Mahasamund Chhattisgarh., Chhattisgarh

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2 - Devnarayan Thakur S/o Dashrath Thakur Aged About 19 Years R/o Matguda, Police Station Komakhan, District Mahasamund Chhattisgarh., District : Mahasamund, Chhattisgarh

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... Appellants

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versus

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State Of Chhattisgarh Through The Incharge, Chowki Lodam, Police Station Komakhan, District Mahasamund Chhattisgarh., Chhattisgarh

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... Respondent(s)

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For Appellants : Ms. Anjali Pradhan, Advocate For Respondent(s) : Mr. Vivek Mishra, Panel Lawyer

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Hon’ble Shri Justice Arvind Kumar Verma

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Judgment on Board

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23/03/2026

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The appellants have filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.')

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questioning the judgment of conviction and order of sentence dated 13.11.2017 passed in Special Criminal Case H-34/2016 whereby the appellants stand convicted as under :-

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Appellant No. 1- Chandrashekhar

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Conviction	Sentence
U/s 363 of IPC	R.I. for 1 year and fine of Rs. 500/-, in
	default of payment of fine, R.I. for 1
	month.

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Appellant No. 2- Devnarayan

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Conviction		Sentence
U/s 363/34 of IPC	R.I. for 1 year	and fine of Rs. 500/-, in
	default of pay month.	ment of fine, R.I. for 1

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The prosecution case, in brief, is that the complainant Dubelal Sahu lodged a written report at Police Station Komakhan stating that on the night of 15.05.2016, all family members were asleep. In the morning at about 5:00 AM, when he went to wake up his daughter (the prosecutrix) in her room, she was found missing. Despite making inquiries in the neighbourhood and at relatives’ houses, her whereabouts could not be traced. It was suspected that someone had enticed and taken her away. It was also reported that one Chandrashekhar, a resident of Village Kosmarra, was missing from his house since the date of the incident. On the basis of the said report, FIR bearing Crime No. 39/2016 was registered at Police Station Komakhan under

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Section 363 IPC against accused Chandrashekhar as a suspect. During investigation, the spot map and site plan were prepared, and documents relating to the date of birth of the prosecutrix were seized. On 05.06.2016, the prosecutrix was recovered and her statement was recorded, wherein she stated that she was mentally disturbed after failing in Class 10^th examinations. On the night of 15.05.2016, she had a conversation with accused Chandrashekhar, who told her that he would come to take her and asked her to meet him outside the house. Thereafter, at about 11:30 PM, when her parents were asleep, she left her house along with some clothes and a mobile phone. She further stated that a magic vehicle was waiting outside, in which accused Chandrashekhar, co-accused Devnarayan, and the driver were present. She went along with them to the house of Chandrashekhar’s uncle. Thereafter, Devnarayan and the driver returned with the vehicle. The prosecutrix stayed at Raipur for about five days, thereafter at Bhilai for two days at a relative’s house, then moved to Kawardha where the accused worked in a restaurant. Subsequently, on 30.05.2016, they returned to Bhilai, and on 03.06.2016, went to Bilaspur. At Bilaspur Railway Station, she was found by the police and was produced before the Child Welfare Committee, Bilaspur. During investigation, statements of witnesses were recorded and the statement of the prosecutrix under Section 164 CrPC was also recorded before the Court. The accused persons were arrested. Upon completion of investigation,

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charge-sheet was filed against the accused persons for offences punishable under Sections 363, 366, 34 IPC and Sections 8 and 17 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

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After hearing learned counsel for the parties and appreciating evidence available on record, the Sessions Court vide judgment dated 13.11.2017 convicted and sentenced the appellants for the offences in the manner as described in para 2 of this judgment. Hence, this appeal.

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In order to prove the charges against the appellant, prosecution examined as many as 11 witnesses which are as follows: Amit Singh (PW-1), Patwari Ramsharan Sahu (PW-2), Prosecutrix (PW-3), Dubelal Sahu (PW-4), Smt. Hira Devi (PW-5), Rajendra Sahu (PW-6), Chitaram (PW-7), Surendra @ Mikky Chhabra (PW8), Devkumari (PW-9), Head Constable Jayant Barik (PW-10), Inspector D.R. Majhi (PW-11).

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The prosecution exhibited several documents, including: Revenue records and birth-related documents (Ex. P-1), Spot maps (Ex. P- 2, P-3, P-9), Khasra Panchshala (Ex. P-4), Seizure memo (Ex. P- 5), Statement under Section 164 CrPC (Ex. P-6), Written complaint (Ex. P-7), FIR (Ex. P-8), Supurdnama (Ex. P-10), Police statements of witnesses (Ex. P-11 to P-14), Official correspondence (Ex. P-15, P-16), Arrest memos (Ex. P-17, P-18), Intimation of arrest (Ex. P-19 to P-21).

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Statement of appellants were also recorded under Section 313 of CrPC in which he pleaded innocence and false implication. However, no defence witness was examined by the appellant. After completion of trial, Sessions Court convicted and sentenced the appellants in the manner as described above. Hence, this appeal.

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Learned counsel appearing for the appellants contended that the trial Judge has acted with material anomalies and illegality in passing the impugned judgment of conviction and sentence, which is liable to be set aside by this Hon'ble Court. That, the learned trial Judge has utterly failed to appreciate the parol and documentary evidence and wrong finding has been recorded in respect of the commission of offence. That, the learned trial Judge has failed to appreciate that the prosecution has failed to prove its case beyond the reasonable doubt, more so the offence under Section 363 of IPC. That, the learned trial Court has failed to appreciate that the prosecution has not produced the reliable evidence against the present appellants and the material witnesses of the prosecution have turned hostile. That, in the present case the trial Court has not appreciated that the prosecution has not proved the age of the prosecutrix as being minor. Therefore, the offence under Section 363 of IPC is not proved against the present appellant. Apart from this the medical evidence on record also suggests that the victim was major on the date of alleged offence. That, the learned trial judge has

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committed an error in holding the appellants guilty under the above mentioned sections whereas no offence as such is made out against the present appellant.

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On the other hand, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits that the prosecution has successfully proved the commission of offense by the appellants beyond reasonable doubt and the appellants have been rightly convicted and sentenced by the trial Court. Therefore, there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference.

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I have heard learned counsel for the respective parties, perused the judgment of the trial Court as well as other material available on record with utmost circumspection.

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The first question to be considered by this Court is whether on the date of incident the prosecutrix was minor?

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The core issue involved in the present appeal is whether the prosecutrix was a “minor” on the date of the incident. The prosecutrix (PW-3), her father (PW-4), and her mother (PW-5) have stated that her age was about 17 years and 9 months. However none of the witnesses produced any independent or reliable proof of date of birth. The father (PW-4) admitted that he does not remember the date of birth of his daughter. It is also admitted that the date of birth was recorded based on information

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given to the village Kotwar. Thus, the oral evidence is vague, approximate, and unreliable. PW-1/ Amit Singh, school teacher proved the date of birth (31.08.1998) on the basis of the school admission register. However it is not clear on what basis such date of birth was originally recorded. The witness admitted that the entry was not made by him. The source of the entry (whether based on Kotwari register or hospital record) is unknown.

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The investigating officer (PW-11) did not seize the Kotwari register. Even the birth certificate (Ex.P/01) was not formally seized during investigation. The best evidence regarding date of birth has not been brought on record. This constitutes a serious lapse in investigation.

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From the above discussion, the conclusions emerge that there is no primary, reliable, and independent proof of the prosecutrix’s date of birth. The school record is only secondary evidence and its source remains doubtful. Oral evidence is inconsistent and based on approximation. There are material lapses in the investigation, creating serious doubt in the prosecution case. Therefore, this Court is of the considered opinion that the prosecution has failed to prove beyond reasonable doubt that the prosecutrix was below 18 years of age on the date of the incident. Accordingly, it is held that the prosecutrix has not been proved to be a minor on the date of the incident.

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There is no any documentary evidence available on record that on

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what basis date of birth of prosecutrix is mentioned as 31.08.1998, no equivalent matric certificate and also no birth certificate issued by the Corporation or Panchayat has been produced regarding date of birth of prosecutrix. Even the ossification test of the prosecutrix has not been conducted. There is no legally admissible evidence with regard to age of prosecutrix that on the date of incident, she was minor and less than 18 years of age. In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix. School Admission and Discharge Register is a weak type of evidence.

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Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under :

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“94. Presumption and determination of age .— (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

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(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned

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examination Board, if available; and in the absence thereof;

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

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Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

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(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of

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that person.

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The Hon'ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police , (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment 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.”

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“48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:-

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"The age of a person as recorded in the school

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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 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

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accused may unjustly be convicted."

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Now the question before this Court is whether trial court is justified in convicting the appellant under Section 363 of IPC?

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The prosecutrix (PW-3), in her evidence, has clearly stated that she knew the accused Chandrashekhar and used to talk to him over phone. She has further admitted in her cross-examination that she had voluntarily gone with him without informing her family for the purpose of घूमना (roaming). She has also categorically stated that the accused did not commit any wrongful act or rape with her.

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From her testimony, it is evident that there was no element of force, threat, inducement or deceit. Rather, the conduct of the prosecutrix shows that she accompanied the accused of her own volition. It is also significant that the prosecutrix stayed with the accused at different places, yet there is no allegation of any sexual assault. Even independent witnesses have not supported the prosecution case regarding any unlawful or immoral intention on the part of the accused.

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Insofar as the conviction under Section 363 IPC is concerned, the prosecution was required to prove that the prosecutrix was a minor on the date of the incident. However, from the evidence on record, the age of the prosecutrix has not been conclusively proved in accordance with law. No reliable documentary evidence has been

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brought on record to establish her age beyond reasonable doubt. In absence of clear proof of minority, the essential ingredient of the offence under Section 363 IPC is not established. Moreover, even otherwise, the voluntary conduct of the prosecutrix creates a serious doubt regarding the prosecution case. The learned trial Court, has erred in convicting them under Section 363 IPC without there being cogent and reliable evidence regarding the minority of the prosecutrix and the absence of her consent.

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Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix was a consenting party. Nowhere she disclosed at any point of time that the appellant was taking her by forcefully and appellant has committed sexual intercourse with her without her consent.

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Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to kidnapping of the prosecutrix, the prosecutrix herself has denied that the accused had enticed her on the pretext of marriage and taken her with him. She denied that she had gone with the accused under his inducement. She further denied that the accused had raped her during the night on the pretext of marriage she called the accused and went with along with him on her own will. The prosecution has failed to prove that prosecutrix was minor on the date of incident. The evidence shows that the victim went with the appellant voluntarily. Hence, this Court is of the considered view that prosecution has failed to prove that the appellant has kidnapped

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the prosecutrix. Therefore, in the above facts and circumstances of the case, offence under Sections 363 of IPC would not be made out against the appellants.

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The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 13.11.2017 is hereby set aside. Appellants stands acquitted of all the charges levelled against them. The appellants are reported to be on bail. Their Bail bonds are not discharged at this stage and the same shall remain operative for a further period of 6 months in light of Section 437-A of Cr.P.C.

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The trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

Sd/-

(Arvind Kumar Verma)

JUDGE

Madhurima

Chandrashekhar v. State Of Chhattisgarh

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Chandrashekhar v. State Of Chhattisgarh

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