Chattisgarh High Court
Sonu Panika @ Shashikant Dewangan vs State Of Chhattisgarh on 17 February, 2026
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2026:CGHC:8600
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1307 of 2017
Sonu Panika @ Shashikant Dewangan S/o Fekuram, Aged About 23
Years R/o Village Chhindiya, P. S. Patna, District Koriya Chhattisgarh.,
Chhattisgarh
... Appellant
versus
State Of Chhattisgarh Through Police Station Jhilmili , District Surajpur
Chhattisgarh., Chhattisgarh
... Respondent(s)
For Appellant : Mr. Ashok Kumar Shukla along with Mr. Ravi Singh, Advocate For Respondent(s) : Mr. Jitendra Shrivastava, G.A. Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 17/02/2026
1. The appellant has filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (henceforth 'the Cr.P.C.') questioning the judgment of conviction and order of sentence 2 dated 29.07.2017 passed in Special Sessions Trial No. 04/2016 whereby the appellant stands convicted as under :-
Conviction Sentence U/s 363 of IPC R.I. for 3 years and fine of Rs. 1000/-, in default of payment of fine, R.I. for 6 months.
2. The prosecution case, in brief, is that on 02.06.2016, the complainant Dhanushdhari (PW-02) submitted a written report at Police Outpost Chandra stating that the accused Sonu Panika had taken away his minor daughter (the prosecutrix). According to the report, on 31.05.2016 at about 10:00 a.m., the complainant had gone to village Patwari to receive compensation for crop damage. He was stopped at village Toma for hearing of the matter and returned from there at about 12:00 noon. When he returned home, his daughter was not there. He called his wife Sunita (PW-04) from the field and upon asking about the children, she informed him that the prosecutrix had been at home earlier but had gone to the field; however, on making inquiries in the nearby area, she could not be found. On 01.06.2016, the complainant went to village Dadana in search of the prosecutrix, but no information was found, and he returned home. During this time, the prosecutrix's friend Shanta informed him that the prosecutrix used to talk to a boy named Sonu from village Chhindia. Thereafter, the complainant obtained the phone number of the accused Sonu and called him, upon which the accused informed him that he had 3 taken the prosecutrix to his house. After receiving this information, the complainant, along with Motilal, Girdhari Das, Bhajnaras, and Hariprasad, went to village Chhindia, where the prosecutrix was found at the accused's house. Upon inquiry, she stated that the accused had enticed her on the pretext of marriage and taken her to his house, and that she would not go with them. On the report of PW-02, the Assistant Sub-Inspector at Police Outpost Chandra recorded the written report and registered a "Zero" FIR. On the basis of the said FIR, Crime No. 59/2016 under Sections 363 and 366 of the IPC was registered against the accused by the Station House Officer Rajesh Yadav (PW-10) at Police Station Jhilimili, and the First Information Report (Exhibit P-14) was recorded and investigation was taken up.
3. After hearing learned counsel for the parties and appreciating evidence available on record, the Sessions Court vide judgment dated 29.07.2017 convicted and sentenced the appellant/accused for the offence punishable under Sections 363 of IPC in the manner as described above of this judgment. Hence, this appeal.
4. In order to prove the charges against the appellant, prosecution examined as many as 11 witnesses. Statement of appellant was 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 appellant in the manner as described above. Hence, this appeal.
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5. Learned counsel appearing for the appellant 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 appellant 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, moreover it has also not been considered by the trial Court that the mother and father of the prosecutrix categorically stated that at the time of offence the prosecutrix has completed the age of 13 years and here date of birth is 06/06/1996. 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 committed an error in holding the appellant guilty under the above mentioned sections whereas no offence as such is made out against the present appellant.
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6. 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 appellant beyond reasonable doubt and the appellant has 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.
7. 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.
8. The first question to be considered by this Court is whether on the date of incident the prosecutrix was minor?
9. The trial court has acquitted the accused from the charges under Section 376(2)(n) of IPC and under Section 6 of POCSO Act, 2012 on the basis of medical evidence alone, the accused cannot be convicted for the offence of penetrative sexual assault or rape, because in the testimony of the prosecutrix no evidence of the basic ingredients of the offence has been presented. Rather, the prosecutrix has stated that the accused did not do anything to her; instead, he took her along with him to his village Chhindia, and she resided there with the accused throughout the night. Apart from this, the prosecutrix has not produced any evidence against the accused regarding commission of penetrative sexual assault 6 or rape. The defence has argued that there was a love relationship between the accused and the prosecutrix; therefore, in the subsequent period they got married and lived together. Even if this fact is accepted, it has not been clearly established when the accused married the prosecutrix, nor has any evidence of sexual assault been presented by the prosecutrix or her family members. In these circumstances, merely because the accused subsequently married the prosecutrix, it cannot be presumed that he kidnapped the minor prosecutrix with the intention of compelling her to marry him or to force her into illicit intercourse. Since no reliable and substantive evidence of this nature has been produced, the charges against the accused under Sections 366 and 376(2)(n) of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 are not proved beyond reasonable doubt.
10. Aricle P-11/C is the Dakhil-Kharij Register wherein the date of birth of prosecutrix is mentioned as 06.06.1998 and P.W.-3/ Rambhajan Soni who is the head master of the school has admitted in his cross-examination that he is not the author of Dakhil-Kharij Register and the entry of date of birth of the prosecutrix is not done by him.
11. There is no any documentary evidence available on record that on what basis date of birth of prosecutrix is mentioned as 06.06.1998, no equivalent matric certificate and also no birth certificate issued 7 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.
12. 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 :
"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. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the 8 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 examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(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:
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.
(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 that person.9
13. 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:
"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."
"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:-
"The age of a person as recorded in the school register or otherwise may be used for various 10 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 accused may unjustly be convicted." 11
14. Now the question before this Court is whether trial court is justified in convicting the appellant under Section 363 of IPC?
15. PW-1/ prosecutrix has deposed in her examination-in-chief that she is presently 18 years old and did not remember her exact date of birth. The incident had occurred about three months prior. On the date of the incident, at about 10:00 a.m., she was at her house when the accused came there on a motorcycle. She went with him to village Toma on the motorcycle, and thereafter they went to village Chhindia. She and the accused stayed overnight at the house of the accused in village Chhindia. The next day, her father, mother, and maternal uncle came and asked her to return home, but she refused. Thereafter, her family members lodged a report. She further stated that the accused did not do anything to her. The police recovered her and the accused from village Chhindia. The seizure memo (Exhibit P/01) bore her signatures. Although she had given consent for medical examination (Exhibit P/02), the police did not take her to the hospital for such examination. The police seized her undergarment (Exhibit P/03), which bore her signatures. Her statement was also recorded before the Judicial Magistrate (Exhibit P/04), which bore her signatures. She admitted that her date of birth was 06.06.1998. She 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 12 her during the night on the pretext of marriage. She stated that the accused had kept her at his house for three days but denied that he committed any wrongful act with her. When confronted with her police statement (Exhibit P/05), wherein it was recorded that the accused had raped her, she stated that she had not made such a statement to the police and did not know how the police had recorded it. She denied that any compromise had taken place with the accused and that she was deposing falsely for that reason. In cross-examination, she stated that the accused was related to her. She further stated that she had gone with the accused after obtaining permission from her parents and that at the time she went with him, she was above 18 years of age.
16. 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.
17. 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 13 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 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 appellant.
18. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 29.07.2017 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. The appellant is reported to be on bail. His 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.
19. 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