Pawan Netam Vs State of Chhattisgarh

For Appellant : Mr. Pushpendra Kumar Patel, Advocate For Respondent : Mr. Sumit Singh, Additional Advocate General. For Complainant : Ms. Sareena Khan, Advocate.

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Ravindra Kumar Agrawal , Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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27/07/2026

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1. The present criminal appeal arises out of the judgment of conviction and order of sentence dated 28.10.2022 passed by the learned Additional District & Sessions Judge (FTSC) and Special Judge (POCSO Act) Balod, District Balod, in Special Sessions Trial (POCSO) No. 27/2019

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whereby, the appellant has been convicted and sentenced as under:

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Conviction under Section	Jail Sentence (Rigorous)	Fine	Default Sentence
363 of the Indian	2 Years	Rs. 500/-	1 month additional
Penal Code (for			imprisonment
short, the IPC)

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376(2)(i) IPC 20 years Rs. 2000/- 2 months additional imprisonment.

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2. The prosecution case, in brief, is that the complainant (PW-2) is the father of the victim girl (PW-1) aged about 14 years and 3 months. It was alleged that in between 2:00 p.m. and 6:00 p.m. on 14.03.2019, an unknown person enticed and took away the minor victim from the lawful guardianship of her father. On the basis of the oral report lodged by the complainant, Crime No. 109/2019 was registered at Police Station Balod against an unknown accused for the offence punishable under Section 363 of the IPC. After completion of investigation, finding sufficient material against the appellant/convict, the police filed the charge-sheet before the competent Court on 10.05.2019.

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3. Charges were read over and explained to the appellant who denied the allegations, pleaded not guilty, and claimed to be tried. In his examination under Section 313 of the Code of Criminal Procedure, 1973, the he denied the incriminating circumstances appearing against him, asserted that he had been falsely implicated, and entered defence. The appellant got himself examined as DW/1 in support of his case.

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4. In order to establish the charge against the appellant, the prosecution examined as many as 09 witnesses and exhibited 30 exhibits. After appreciation of evidence available on record, the learned trail Court convicted and sentenced the accused/appellant as detailed in the opening paragraph.

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5. Mr. Pushpendra Kumar Patel, learned counsel appearing for the appellant, submits that the impugned judgment of conviction and order of sentence passed by the learned trial Court are contrary to the facts of the case, the evidence available on record, and the settled principles of criminal jurisprudence, and are therefore liable to be set aside. It is

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contended that the appellant has been falsely implicated and that the prosecution has miserably failed to establish the charges against him beyond reasonable doubt. Learned counsel submits that the First Information Report was initially registered merely as a missing person report against an unknown individual, and no allegation whatsoever was levelled against the appellant at the initial stage. It is further argued that the evidence on record clearly indicates that the victim had voluntarily left her parental home, and there is no cogent or reliable evidence to establish that she was either kidnapped or abducted by the appellant. Inviting the attention of this Court to the medical evidence, learned counsel submits that the examining doctor did not notice any external or internal injuries on the person of the victim, nor were there any medical findings indicative of forcible sexual intercourse. It is further contended that the victim herself admitted in her testimony that she did not raise any objection while residing with the appellant and categorically stated that no force or coercion had been used against her. According to the learned counsel, this admission completely belies the prosecution case. Learned counsel further submits that the testimonies of the prosecution witnesses are riddled with material contradictions, omissions, and inconsistencies. It is argued that the learned trial Court has erroneously placed implicit reliance upon the testimony of the complainant and other interested witnesses without subjecting their evidence to the careful scrutiny required in a criminal trial. It is further contended that the prosecution has failed to prove the essential ingredients of the offences punishable under Sections 363 and 376(2)(i) of the Indian Penal Code beyond reasonable doubt, and that the learned trial Court has committed a manifest error in overlooking the material infirmities and inconsistencies in the prosecution evidence. On the aforesaid grounds, learned counsel prays that the

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impugned judgment of conviction and order of sentence be set aside and the appellant be acquitted of all the charges by extending to him the benefit of doubt.

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6. On the other hand, Mr. Sumit Singh, learned Additional Advocate General appearing for the State/respondent, vehemently opposes the appeal and supports the impugned judgment of conviction and order of sentence passed by the learned trial Court. It is submitted that the prosecution has successfully established the guilt of the appellant beyond reasonable doubt by leading cogent, credible, and reliable oral as well as documentary evidence. Learned counsel contends that the testimony of the victim, which is natural, consistent, and trustworthy, stands duly corroborated by the medical and other prosecution evidence on record, thereby conclusively proving the commission of the offences for which the appellant has been convicted. It is further submitted that the subsequent marriage between the appellant and the victim does not, in any manner, efface the criminality of the acts committed by the appellant or absolve him of the criminal liability arising from offences committed against a minor. Such a subsequent development, according to the learned Additional Advocate General, cannot constitute a valid ground for interfering with or setting aside an otherwise well-reasoned and legally sustainable judgment of conviction. Accordingly, he prays for dismissal of this appeal.

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7. Ms. Sareena Khan, learned counsel appearing for the complainant/ victim, submits that the complainant and the victim have no objection if the appellant is acquitted of the charges. It is submitted that during the pendency of the present appeal, when the appellant was released for a short period on parole, the appellant and the victim solemnized their marriage on 03.02.2025 and have since been residing together

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peacefully as husband and wife. In support of the aforesaid submission, learned counsel has placed on record a copy of the Marriage Registration Certificate issued by the Municipal Council, Balod, a copy of the Ration Card, an affidavit sworn by the mother of the appellant, an affidavit of the father of the victim, and an affidavit of the victim herself, wherein she has categorically affirmed that she voluntarily solemnized her marriage with the appellant on 03.02.2025 of her own free will and without any coercion or undue influence. It is further submitted that the marriage has been duly registered with the Municipal Council, Balod, Chhattisgarh, vide Marriage Registration No. 2025-22-000022, approved on 08.02.2025. Learned counsel, therefore, prays that the aforesaid subsequent developments, together with the documents brought on record, be taken into consideration while adjudicating the present appeal, as the same have a material bearing on the matter and warrant due consideration in the interest of justice.

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8. We have heard the learned counsel for the parties and perused the record of the trial Court with utmost circumspection.

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9. The FIR (Exhibit P/6) was lodged by the complainant (PW-2) on 15.03.2019 wherein it was alleged that her daughter was lured by some unknown person and taken from his lawful custody. In the investigation, it revealed to the police that it was the appellant who had lured the victim and taken her away from the custody of her parents. The victim is stated to be a minor on the date of incident and the learned trial Court, upon appreciation of oral and documentary evidence, has arrived at a finding that the victim was aged about 14 years, 3 months and 12 days i.e. below the age of 16 years. The said finding is based on the statement of S.K.Nayak (PW-4) who is the Head Master of the school where the victim was studying. He had produced the original admission/discharge register

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in which it was mentioned that the victim was admitted to the school in Class 6^th on 17.06.2015 and her date of birth was registered on the basis of T.C. and marksheet of the victim. The victim (PW-1) has also deposed that her date of birth was 02.12.2004. The complainant (PW-2) has also deposed that on the date of incident, his daughter was aged about 14 years and 6 months and in the cross-examination, he stated that the date of birth of the victim was 01.12.2004.

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10. Before the learned trial Court, the victim (PW-1) deposed that on 14.03.2019, she had left her house to visit her grandmother's house. At about 5:00 p.m., when she reached near the public water tap, the appellant allegedly intercepted her, slapped her two or three times, forcibly made her sit on his motorcycle and took her to village Charwahi. According to the victim, the appellant confined her in a vacant house, where he committed rape upon her, and released her the following day at about 11:00 a.m. to 12:00 noon. She further stated that upon returning home, she did not disclose the true facts to her mother and instead informed her that an unknown lady ran her hand over her head and thereafter had taken her to another place and that she had stayed with the said lady throughout the night. The victim also deposed that when the police asked her to produce the undergarments she had been wearing at the time of the alleged incident, she informed them that the clothes had already been burnt. Her father (PW-2) also made a similar deposition, stating that, believing the victim to be under the influence of an evil spirit, they had burnt the clothes worn by her.

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11. In her cross-examination, the victim admitted that the place from where the appellant had allegedly taken her on his motorcycle was not an isolated location. She stated that it was situated near a public water tap where women of the village regularly came to fetch water and where

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there was frequent movement of people. She further admitted that she did not offer any resistance when the appellant asked her to accompany him. However, she denied the suggestion that she was in a love relationship with the appellant.

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12. Dr.K.K.Ramteke (PW-5) had examined the appellant and vide his examination report (Exhibit P/12), he opined that the appellant was fully capable of performing sexual intercourse as his secondary sexual characteristics were fully developed, and cremasteric reflex was present. He had handed over the underwear of the appellant to the Constable after marking the white spot present on it, for further chemical examination.

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13. Dr. Prabha Barman (PW-7) is the Doctor who had conducted the MLC of the victim. On examination, she found that her secondary sexual characteristics were developed as per her age. There were no internal or external injury found on the body of the victim. She prepared two slides from the secretion fluid from vaginal region and handed over it to the Constable for its further FSL examination. She could not give any definite opinion with regard to commission of forceful sexual intercourse.

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14. In the FSL report (Exhibit P/30), no semen stains or human sperms have been found on articles A, B and C which are the vaginal slides of the victim, underwear of the appellant and the pubic hair of the appellant.

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15. In the present case, except for the statement of the victim, there is nothing which may corroborate commission of the offence in question. The victim (PW-1) and her father (PW-2) both have deposed that they had burnt the undergarment which could have been sent for FSL examination. The FSL report with respect to the articles seized i.e. vaginal slides, underwear and pubic hair of the appellant is also negative.

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The MLC of the victim (Exhibit P/16) is also negative as no injuries either internally or externally have been found by the Doctor and further no definite opinion could be given. Hence, the commission of the offence itself is doubtful. At the first instance, the victim herself informed her parents that she was taken by an unknown lady to some unknown place and later she informed that she was taken by the appellant. Further, the place from where the appellant had taken the victim is also not an isolated place as it is a place where the women of the village go to fetch potable water and there is a constant movement of people there. Had it been a case that the appellant forcefully took her on his motorcycle, she could have made a hue and cry asking for help which is not the case of the prosecution. On the contrary, the victim stated that she was slapped by the appellant but still she did not ask for help from anyone.

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16. On an overall appreciation of the evidence available on record, this Court finds that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. Though the testimony of a victim can, in an appropriate case, by itself form the basis of conviction, the same must inspire confidence and be of sterling quality. In the present case, the version of the victim suffers from material inconsistencies and lacks corroboration from the surrounding circumstances. The victim initially informed her parents that she had been taken away by an unknown lady and stayed with her throughout the night, but subsequently changed her version by alleging that the appellant had abducted and raped her. The undergarments allegedly worn by the victim at the time of the incident, which could have constituted important forensic evidence, were admittedly burnt by the victim and her father. The medical evidence also does not support the prosecution case, as no external or internal injuries were found on the person of the victim, and the examining doctor

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was unable to give any definite opinion regarding forcible sexual intercourse. Further, the FSL report did not detect semen stains or human sperm on the vaginal slides of the victim, the underwear of the appellant or his pubic hair. It has also come in the cross-examination of the victim that the place from where she was allegedly taken was a public place frequented by women fetching water and other villagers, yet she neither raised any alarm nor sought assistance despite alleging that she had been slapped by the appellant. These circumstances cast a serious doubt on the prosecution story.

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17. In criminal jurisprudence, if two views are possible, the one favourable to the accused must be adopted. The cumulative effect of the inconsistencies in the prosecution evidence, absence of medical and scientific corroboration, and the doubtful circumstances surrounding the alleged occurrence create a reasonable doubt regarding the commission of the offence. Consequently, the appellant is entitled to the benefit of doubt. It is also pertinent to note that during the pendency of the present appeal, the appellant and the victim have solemnized their marriage on 03.02.2025 and are now residing together as husband and wife. The said fact is borne out from the Marriage Registration Certificate issued by the competent authority, which has been placed on record. The counsel appearing for the complainant has also stated that the victim as well as the complainant have no objection if the appellant is acquitted. Although the subsequent marriage between the parties cannot, by itself, be a ground for acquittal in a prosecution for an offence under Section 376 of the IPC, the said subsequent development lends support to the conclusion already arrived at by this Court that the prosecution has failed to prove the charge beyond reasonable doubt. The subsequent marriage between the appellant and the victim and the statement of the learned

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counsel for the complainant that she has no objection to the acquittal of the appellant are subsequent developments, which, though not determinative of the criminal liability of the appellant, fortify the conclusion that no useful purpose would be served by sustaining the conviction when the prosecution has otherwise failed to prove its case beyond reasonable doubt. Accordingly, the judgment of conviction and order of sentence dated 28.10.2022 passed by the learned trial Court is set aside and the appellant is acquitted of the charges.

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18. Resultantly, this appeal stands allowed .

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19. The appellant/convict is reported to be in jail. He is directed to be released forthwith unless wanted in any other case. However, keeping in view the provision of Section 437-A of the Cr.P.C., the accused-appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- with two sureties 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 Supreme Court.

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20. Registry is directed to transmit the trial court record along with a copy of this order to the trial court concerned forthwith for necessary information and compliance.

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

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Anu

Pawan Netam v. State of Chhattisgarh

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Pawan Netam v. State of Chhattisgarh

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