Deepak Vaishnav vs State Of Chhattisgarh on 9 April, 2026

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Chattisgarh High Court

Deepak Vaishnav vs State Of Chhattisgarh on 9 April, 2026

1. Today, though the matter is listed for hearing on I.A.No.01/2024, which is an application for suspension of sentence and grant of ROHIT bail to the appellant, however, considering the fact that the KUMAR CHANDRA Digitally signed by ROHIT KUMAR appellant is in jail since 17.10.2022 and with the consent of CHANDRA learned counsel for the parties, the appeal is heard finally. 2

2. This criminal appeal under Section 374(2) of the CrPC is directed against the judgment of conviction and order of sentence dated 16.10.2023 passed by the Special Judge (F.T.S.C.) POCSO Act, Mungeli, District- Mungeli (C.G.) in Special Criminal Case No. 76/2022, whereby the learned trial Court has convicted and sentenced sentenced the appellant with a direction to run all the sentences concurrently in the following manner :

            CONVICTION               SENTENCE
      U/s 363 of IPC            Rigorous imprisonment for 5 years and
                                fine of Rs. 500/- and in defaults of
                                payment of fine amount, additional RI
                                for 02 months
      U/s 366 of IPC            Rigorous imprisonment for 5 years and
                                fine of Rs. 500/- and in defaults of
                                payment of fine amount, additional RI
                                for 02 months

U/s 6 of the POCSO Rigorous imprisonment for 20 years Act and fine of Rs. 1,000/- and in defaults of payment of fine amount, additional RI for 02 months

3. Case of the prosecution, if brief, is that on 14.09.2022, the victim's father/complainant (PW-01) appeared at the Lalpur police station and lodged a report stating that on 13.09.2022 at around 9:30 am, his daughter/victim left on her bicycle to go to school and did not return home till 5:00 pm. Then, when he inquired about the victim from his daughter's/victim's friend, she told him that the victim had not come to school and had told him that she was at her maternal 3 uncle's village. He inquired about his daughter/victim by calling the neighbours, relatives and her maternal uncle's village, but the victim was nowhere to be found. He suspects that some unknown person has lured his daughter/victim away. On the report of the victim's father/complainant, a First Information Report (FIR) Ex.P-01 was registered against the unknown accused under Section 363 of the Indian Penal Code at Lalpur Police Station and taken up for investigation.

4. During the investigation, the victim's statement was recorded in Ex.P.-15 under Section 164 Cr.P.C. in the Judicial Magistrate Court. The spot map was prepared Ex.P.-04. The victim was medically examined by Dr. Priyadarshini (A.S.-05). After the medical examination of the victim by the doctor, the medical report Ex.P.-16 was prepared. The statements of the victim and the witnesses were recorded as per their instructions. The original school admission register was seized from Headmaster Ravindra Kumar Patre (A.S.-02) and seizure memo Ex.P.-11 was prepared. Sub-Inspector Virendra Singh Kshatriya (A.S.-07) seized two vaginal slides of the victim and the underwear of the accused in a sealed envelope and prepared seizure memo Ex.P.-21 and 22. The genitals of the accused were examined by Doctor Manilal Bhaskar (ASI-06) and genital examination report Ex.P.-17 was prepared. The articles seized in the case were sent to Forensic Science Laboratory, Bilaspur for chemical examination, from where FSL report Ex.P.-29 was received after examination. The 4 accused was arrested in the case and arrest panchnama Ex.P.-19 was prepared. On the basis of the victim's statement, offences under sections 366, 376 of IPC and sections 4, 6 of the POCSO Act were added to the case. After necessary investigation, a charge sheet was presented against the accused for trial before the Court of Special Judge (F.T.S.C.) POCSO Act, Mungeli, District- Mungeli (C.G.) under Sections 363, 366, 376 of IPC and Sections 4, 6 of the Protection of Children from Sexual Offences Act against the accused on the basis of the case and attached documents.

5. After the charges were framed under Sections 363, 366, 376 (2) (N) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 and were read out and explained to the accused, the accused denied the charges and sought trial.

6. On behalf of the prosecution, statements of the victim's father PW-01, Head teacher Ravindra Kumar Patre PW--02, victim PW-03, victim's mother PW-04, Dr. Priyadarshini PW-05, Dr.Manilal Bhaskar PW-06, Sub Inspector Virendra Singh Kshatriya PW-07, Head Constable Gulab Singh Rajput PW-08, Deputy Superintendent of Police Sadhna Singh PW-09, and Head Constable Arun Netam PW-10 have been recorded in the case and 29 documents have been presented and exhibited.

7. On the basis of the evidence presented by the prosecution in the case, a statement of charge was prepared under Section 313(1-b) 5 of the CrPC and on examination of the accused, the accused denied the facts of the prosecution evidence and declared himself innocent and did not want to give evidence in his defence.

8. After appreciation of evidence available on record, the learned trial Court has convicted and sentenced the accused/appellant as mentioned in para 2 of this judgment. Hence, this appeal.

9. Learned counsel for the appellant vehemently argued that the impugned judgment passed by the learned trial Court is wholly contrary to the settled principles of law, as well as the facts and circumstances of the present case, and therefore deserves to be set aside. He submitted that the learned trial Court has failed to properly appreciate the evidence available on record in its correct perspective. Even if the entire prosecution case is taken at its face value and accepted in its entirety, no offence under Sections 363 and 366 of the IPC, nor under Section 6 of the POCSO Act, is made out against the present appellant. Learned counsel further contended that the conduct and statements of the victim, as reflected in her own deposition, clearly demolish the prosecution story. The victim herself has categorically stated that she was in regular telephonic contact with the appellant through an unknown number. It is further admitted by her that she had voluntarily accompanied the appellant and travelled with him by bus up to Mungeli, and thereafter proceeded along with him to Raipur. It was also pointed out that from Raipur, both the appellant and the victim travelled together to Hyderabad, where they stayed for a 6 day. Thereafter, they again travelled together from Hyderabad to Vijayawada, and subsequently to Agrapalli, where they resided together in a room for a period of about one month. Learned counsel emphasized that during the said period, the victim remained in the company of the appellant without any resistance or complaint and voluntarily established physical relations with him. This continuous and voluntary companionship, as borne out from the prosecutrix's own version, clearly indicates absence of force, inducement, or coercion on the part of the appellant.

10. Per contra, learned counsel for the State strongly opposed the submissions advanced on behalf of the appellant and supported the impugned judgment passed by the learned trial Court. He contended that the learned trial Court has rightly appreciated the oral as well as documentary evidence available on record and has arrived at a well-reasoned and legally sustainable finding, which does not call for any interference by this Hon'ble Court. Learned State counsel submitted that the victim was a minor at the time of the incident, and therefore, her alleged consent, if any, is wholly immaterial in the eyes of law. It was further argued that once the age of the victim is established to be below 18 years, the question of consent loses all significance, particularly in view of the stringent provisions of the POCSO Act. He further contended that the evidence on record clearly establishes that the appellant had taken the victim away from the lawful guardianship of her parents, thereby attracting the offence under Section 363 of the IPC. The 7 subsequent acts of taking her to different places including Mungeli, Raipur, Hyderabad, Vijayawada, and Agrapalli, and keeping her in his company for a prolonged period, clearly demonstrate the element of inducement and enticement, thereby constituting an offence under Section 366 of the IPC. Learned counsel for the State further submitted that the victim, in her statement, has categorically stated that she had established physical relations with the appellant during the said period. In view of her minority, such physical relationship squarely falls within the ambit of penetrative sexual assault as defined under the POCSO Act, and the aggravated nature of the offence has been rightly considered by the learned trial Court while convicting the appellant under Section 6 of the POCSO Act.

11. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

12. 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 ?

13. 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 8 defines kidnapping from lawful guardianship which states as under:-

"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."

14. 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:-

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

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

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

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

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.

15. 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:-

"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 him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment 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"."

16. 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), it is evident that the victim was in regular telephonic contact with the appellant through an unknown number and she had voluntarily 1 AIR 1965 SC 942 10 accompanied the appellant and travelled with him by bus up to Mungeli, and thereafter proceeded along with him to Raipur. It was also pointed out that from Raipur, both the appellant and the victim travelled together to Hyderabad, where they stayed for a day. Thereafter, they again travelled together from Hyderabad to Vijayawada, and subsequently to Agrapalli, where they resided together in a room for a period of about one month. As such, 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 appellant, 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.

17. 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 ?

18. Dr. Priyadarshini (PW-5) has stated that on medical examination of the victim, she found no injury on the external and internal parts of her body. The victim's hymen was already torn and filled. According to her, no definite opinion has been given regarding the sexual intercourse with the victim at that time. On examination of the victim's underwear, no stains were found on it, which were marked and sealed and two vaginal slides were prepared by her, 11 sealed and handed over to the lady constable for chemical examination. The medical report given by her is Ex.P-16, which is signed by her. Further, the FSL report (Ex.P-29) is also found to be negative. As such, there is no corroborative evidence placed by the prosecution to prove the guilt of the accused for the offence punishable under Section 366 of the IPC.

19. By perusal of the evidence of the victim girl, it appears that victim girl was simply 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.

20. So far as the age of victim is concerned, the documentary evidence including oral evidence regarding the date of birth of the victim (PW-3) being 10/11/2006, copy of Dakhil Kharij Register (Ex.P-12) and Aadhar Card (Ex.P26C) are present on record in an irrefutable manner, which there is no reason to disbelieve. Hence, 12 the age of the victim (PW-3) is proved to be around 15 years 10 months and 03 days and if consent was given for sexual intercourse on the date of incident, it does not amount to an offence under the POCSO Act.

21. In the matter of Jaya Mala v. Home Secretary, Govt. of Jammu & Kashmir and others2, the Supreme Court has held that a judicial notice can be taken that the margin of error in age ascertained by Radiological examination is two years on either side. Relevant para of the said judgment states as under:-

"9. Detenu was arrested and detained on Oct. 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention. Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert, in Oct., 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheavel in the educational institutions. This young school going boy may be enthusiastic about the students' rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he 2 AIR 1982 SC 1297 13 can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed."

22. In Alamelu & Another (supra), where the facts and circumstances were similar to that of this case, the Supreme Court observed as under:

"51. This Court in Rameshwar v. State of Rajasthan {AIR 1952 SC 54} declared that corroboration is not the sine qua non for a conviction in a rape case. In the aforesaid case, Vivian Bose, J. speaking for the Court observed as follows:-

"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, ... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."

52. The aforesaid proposition of law has been reiterated by this Court in numerous judgments subsequently. These observations leave no manner of doubt that a conviction can be recorded on the sole, uncorroborated testimony of a victim provided it does not suffer from any basic infirmities or improbabilities which render it unworthy of credence.

xxx xxx xxx 14

54. Even PW5, Thiru Thirunavukarasu stated that Sekar (A1) had brought the girl with him to his house and told him that he had married her. They had come to see Trichy and requested a house to stay. This witness categorically stated that he thought that they were newly married couple. He had made them stay in Door No. 86 of the Police Colony, which was under his responsibility. On 10th August, 1993, the police inspector, who arrived there at 10.00 p.m. told this witness that Sekar (A1) had married the girl by threatening her and "spoiled her". The girl, according to the prosecution, was recovered from the aforesaid premises. Therefore, for six days, this girl was staying with Sekar (A1). She did not raise any protest. She did not even complain to this witness or any other residents in the locality. Her behavior of not complaining to anybody at any of the stages after being allegedly abducted would be wholly unnatural.

55. Earlier also, she had many opportunities to complain or to run away, but she made no such effort. It is noteworthy that she made no protest on seeing some known persons near the car, after her alleged abduction. She did not make any complaint at the residence of Selvi, sister of Sekar (A1) at Pudupatti. Again, there was no complaint on seeing her relatives allegedly assembled at the temple. Her relatives apparently took no steps at the time when mangalsutra was forcibly tied around her neck by Sekar (A1). No one sent for police help even though a car was available. She made no complaint when she was taken to the house of PW5, Thiru Thirunavukarasu and stayed at his place. Again, there was no protest when Sekar (A1) took her to the police station on 5th day of the alleged abduction and told at the Tiruchi Police Station that they had already been married. The above behaviour would not be natural for a girl who had been compelled to marry and subjected to illicit sexual intercourse.

56. In view of the aforesaid, we are of the considered opinion that the prosecution has failed to prove beyond reasonable doubt any of the offences with which the appellants had been charged. It appears that the entire 15 prosecution story has been concocted for reasons best known to the prosecution."

23. In the matter of Tilku Alias Tilak Singh V. The 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:-

"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.

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:

"7. .....It will thus be seen that taking or enticiting away a minor out of the keeping of a 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 16 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 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 17 inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her 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......."

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.

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."

24. The victim (PW-3) in her statement recorded under Section 164 CrPC has deposed that her brother gave his mobile phone her to use. At that time, she received a call on her mobile number from an unknown number. The caller introduced himself as xxx (the accused. After a brief conversation, she disconnected the call. However, the accused continued to call her repeatedly. Initially, she did not answer his calls, but later she started talking to him. The accused told her that he liked her, and she also said that she liked him. On 12.09.2022, the accused called her, and during the conversation, she told him that they should elope and get married. He agreed to marry her. The next day, without informing her 18 family, she went with the accused to Raipur for marriage. From Raipur, they boarded a bus and went to Hyderabad, and from there, via Vijayawada, they reached Agrapalli. There, the accused kept her in a rented house. They lived together there as husband and wife, and they also had physical relations. She further admitted that she went with accused of her own free will. However, the victim (PW-3), in her Court statement has deposed that she was in regular telephonic contact with the appellant through an unknown number. She further stated while she was going to school, the accused stopped her bicyle and took her by bus up to Mungeli, and she thereafter proceeded along with him to Raipur and from Raipur, both the appellant and the victim travelled together to Hyderabad, where they stayed for a day. Thereafter, they again travelled together from Hyderabad to Vijayawada, and subsequently to Agrapalli, where they resided together in a room for a period of about one month and established physical relations during the said period.

25. The scrutiny of entire evidence goes to show that there is no evidence on record that at any point of time the appellant solicited or persuaded the victim to leave her home forcefully. On the other hand, it is clearly established that the victim was in regular telephonic contact with the appellant through an unknown number. She had voluntarily accompanied the appellant and travelled with him by bus up to Mungeli, and thereafter proceeded along with him to Raipur and from Raipur, both the appellant and 19 the victim travelled together to Hyderabad, where they stayed for a day. Thereafter, they again travelled together from Hyderabad to Vijayawada, and subsequently to Agrapalli, where they resided together in a room for a period of about one month and during the said period, the victim remained in the company of the appellant without any resistance or complaint and voluntarily established physical relations with him. This continuous and voluntary companionship, as borne out from the victim's own version, clearly indicates absence of force, inducement, or coercion on the part of the appellant.

26. Applying the principle of law laid down by the Supreme Court in the above-stated judgment (supra) to the facts of the present case and considering the opinion of Medical Officer (PW-5) and her report Ex.P-16 and FSL report Ex.P-29 coupled with the testimony of the victim herself creates a serious lacuna in the prosecution story, the benefit of which should be granted to the appellant. On the basis of material available on record and evidence collected by the prosecution, it cannot be held that the prosecution has been able to bring home the offences under Sections 363, 366 of the IPC and Sections 6 of the POCSO Act beyond reasonable doubt as evidence brought on record is not sufficient to bring home the offences against the appellant / accused herein.

27. As a fallout and consequence of the aforesaid legal analysis, the criminal appeal is allowed and the impugned judgment of conviction and order of sentence dated 16.10.2023 passed by the 20 Special Judge (F.T.S.C.) POCSO Act, Mungeli, District- Mungeli (C.G.) in Special Criminal Case No. 76/2022 is hereby set aside. The accused / appellant is acquitted of the said charges levelled against him. He is in jail since 17.10.2022. He shall be set at liberty forthwith if no longer required in any other criminal case.

28. Keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, 1973 (Now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Proceure of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerend 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.

29. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.

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



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