Chattisgarh High Court
Santosh Panika vs State Of Chhattisgarh on 5 May, 2026
Author: Rajani Dubey
Bench: Rajani Dubey
1
2026:CGHC:20818
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07.04.2026 05.05.2026 -- 05.05.2026
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 90 of 2008
Santosh Panika, S/o Ram Jiyawan Lal Panika, aged about
30 years, R/o village Deorikala, Police Station Pendra,
District Bilaspur (C.G.)
---- Appellant
Versus
State of Chhattisgarh Through : The Police Station -
Anusuchit Jati Kalyan, Bilaspur, District Bilaspur (C.G.)
---- Respondent
For Appellant. - Mr. Bharat Lal Dembra, Advocate. For Respondent - Mr. Siddhant Tiwari, P.L. Advocate.
Hon'ble Smt. Justice Rajani Dubey (C A V Judgment)
1. This appeal arises out of the judgment of conviction and 2 order of sentence dated 26.12.2007 passed by the Special Judge, constituted under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bilaspur (C.G.), in Special Sessions Case No.50/2007 convicting the accused/appellant under Sections 376, 363 and 366 of the IPC & sentencing him to undergo R.I. for 07 years with fine of Rs.250/-, R.I. for 04 years with fine of Rs.250/- and R.I. for 04 years respectively, with default stipulations. All the sentences are directed to run consequently.
2. As per the prosecution case, on 20.05.2007, prosecutrix (PW-1) along with her grand-mother had gone to Sonmuda market. At the relevant time, accused Santosh Panika met her on the way and said her that he was going to her village and that he would drop her there. The accused/appellant alluring the prosecutrix (PW-1) made her to sit on his bicycle and instead of taking her to her village Ghaghra, he took her along a different route. When prosecutrix (PW-1) objected the accused/appellant, he threatened her to kill if she makes hue and cry. Thereafter, the accused/appellant took the prosecutrix (PW-1) to the house of one driver at village Baghouri and kept her in a room where the accused/appellant forcefully established sexual intercourse with her. Next day, the accused/appellant took the 3 prosecutrix (PW-1) to village Katoutiya Poultry Form where he was working, where he kept the prosecutrix in a room and committee forcible sexual intercourse with her & when the prosecutrix objected the act of accused/appellant, he used to extend threat to kill her with knife. Further case of the prosecution is that, on 01.06.2007, when a driver from village Latkoni came to poultry form, who was in acquaintance with the prosecutrix, she told him to inform her parents and on 06.06.2007, father of prosecutrix (PW-4), mother (PW-5) and Govind (PW-6) came there to take her, however, the accused/appellant did not allow the parents of prosecutrix to take her away and assaulted them. Thereafter, the father of prosecutrix (PW-4) went to police station and with the intervention of police authorities, she was freed from the custody of the accused/appellant. On 12.06.2007, they came back to their village Ghaghra and on next day i.e. on 13.06.2007, she lodged a written report (Ex.P-1) at police station - Pendra, District Bilaspur (C.G.). The consent of prosecutrix and her father for medical examination of prosecutrix was obtained vide Ex.P-2 and P- 9, and after obtaining permission from Sub Divisional Magistrate, Pendra Road vide Ex.P-15, the prosecutrix was sent for medical examination to Community Health Center, 4 Pendra vide Ex.P-11(A), where she was examined by Dr. (Smt.) J.S. lakdo (PW-8) and gave her report under Ex.P-11 noticing (i) no external injury, (ii) axillary hair, public hair and breast were fully developed. On internal examination, hymen was found ruptured, there was swelling congestion all around . The Doctor had opined that the injuries in private parts of the prosecutrix were seemed to be produced by some hard and blunt object which may be hard erected male sex organ. It was also opined that there was swelling, congestion, tenderness with pain duration of which was within 5-7 days. The accused/appellant was also sent for medical examination to Community Health Center, Pendra, vide Ex.P-7(A), where Dr. P.C. Banerjee (PW-2) medically examined the accused/appellant and gave his report under Ex.P-7 opining that the accused/appellant was capable of performing sexual intercourse.
3. On the basis of medical report of the prosecutrix, an FIR (Ex.P-14) was registered against the accused/appellant for the offence punishable under Sections 363, 366(a) of IPC and 3(1) (xii) of the S.C./S.T. Act. During investigation, caste certificate (Ex.P-4) of the prosecutrix issued by the Tahsildar was obtained and seized vide seizure memo Ex.P-3. Mark lists (Ex.P-5 and P-6) of the prosecutrix were obtained, 5 according to which, the date of birth of the prosecutrix was 10.04.1991. Spot map was prepared vide Ex.P-16.
4. After completion of due investigation, charge sheet was filed against the accused/appellant under Sections 363, 366, 376 of IPC and Sections 3(1)(xii) & 3(2)(v) of the SC/ST Act and the learned trial Court framed charges against the accused/appellant under Sections 363, 366, 376 of IPC and 3(2)(v) of the SC/ST Act.
5. So as to hold the accused/appellant guilty, the prosecution examined as many as 13 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication.
6. The trial Court after hearing counsel for the respective parties and considering the material available on record, while acquitting the accused/appellant of the offence under Section 3(2)(v) of the SC/ST Act, has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, this appeal.
7. Learned counsel for the appellant submits that the judgment of conviction and order of sentence passed by the learned Trial Court are wholly contrary to the facts available on 6 record as well as the settled principles of law, and therefore the same are liable to be set aside. Learned counsel further submits that the conduct of the prosecutrix clearly indicates that she had voluntarily accompanied the appellant and there was consent on her part. The prosecutrix remained with the appellant for about twenty-five days and during the said period she stayed with him without any protest there- against and did not complaint before any person. If she had been taken forcibly or against her wishes, she would have definitely tried to escape, raise alarm, or seek help from the public. Her conduct of continuously staying with the appellant without objection clearly points towards that she was a consenting party to the act of the appellant. It is also submitted that the essential ingredients of Sections 363, 366 and 376 of the IPC are not made out from the evidence on record. In order to attract Section 363 IPC, the prosecution was required to prove that the prosecutrix was taken or enticed away from lawful guardianship without consent. However, in the present case, there is no evidence to show that the appellant forcibly took or enticed her away. Similarly, the ingredients of Section 366 IPC are also absent. For constituting an offence under the said section, it was necessary for the prosecution to prove that the 7 prosecutrix was kidnapped or abducted with the intention that she may be compelled to marry or be forced or seduced to illicit intercourse. No such intention has been proved by any reliable evidence. Mere accompanying the appellant or staying with him cannot by itself attract the provisions of Section 366 IPC. So far as the offence under Section 376 IPC is concerned, learned counsel submits that the prosecution has failed to establish that any alleged physical relationship was against the will or without the consent of the prosecutrix. The conduct of the prosecutrix in remaining with the appellant for 25 days without protest, resistance, or complaint creates a serious doubt regarding the prosecution version. In such circumstances, the appellant is entitled to the benefit of doubt. Thus, considering all the aforesaid circumstances, the appeal deserves to be allowed setting aside the impugned judgment.
Reliance has been placed on the judgment dated 23.03.2026 of this Court passed in CRA No.214/2008 [Hori Lal vs. State of Chhattisgarh].
8. On the other hand, supporting the impugned judgment it has been argued by the State counsel that the conviction of the accused/appellant is strictly in accordance law and there is no infirmity in the same.
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9. I have heard learned counsel for the parties and perused the material available on record.
10. It is clear from the record of the learned trial Court that the learned trial Court framed charges against the accused/appellant under Sections 363, 366, 376 of IPC and 3(2)(v) of the SC/ST Act, and after appreciation of oral and documentary evidence, the learned trial Court, while acquitting the accused/appellant of the charge under Section 3(2)(v) of the SC/ST Act, convicted the accused/appellant under Sections 363, 366 and 376 of the IPC.
11. The question which arises for consideration before this Court is whether the Prosecutrix (PW-1) on the date of incident was minor ?
12. As per the prosecution, the prosecutrix (PW-1) on the date of incident was aged about 16 years and 01 month. The learned Trial Court also finds that the prosecutrix (PW-1) was aged about 16 years, 01 months and 10 days & below 18 years of age.
13. J.R. Dhirahi (PW-9) is the Principal of Middle School, Murmur, Police Station Pendra. This witness has forwarded a memo (Ex.P-12) to Deputy Superintendent of Police, AJAK, Bilaspur regarding the date of birth of the prosecutrix, 9 according to which, as per Sl. No.766 of school admission register, the date of birth of the prosecutrix was registered as 10.04.1991. This witness has also stated that the mark list of prosecutrix of Primary School, Murmur (Pendra) is Ex.P-5, wherein the date of birth of the prosecutix was written as 10.04.1991. In cross-examination, this witness had admitted this suggestion that the prosecutrix (PW-1) was admitted in Middle School and he recorded the date of birth at the time of admission to middle school that was written in prosecutrix's primary school mark list. This witness, in para 7 of his cross-examination, has stated that he cannot tell that the date of birth of the prosecutrix recorded in the school and kotwari register could be different.
14. Prosecutrix (PW-1) has also filed her mark sheets (Ex.P-5) of class 6 of Primary School, Murmur (Pendra) and District Primary Certificate Examination-2004 vide Ex.P-6 & stated that in the mark list her date of birth was mentioned.
15. Father of prosecutrix (PW-4) has stated that his marriage was solemnized in the year 1984 and he has four children and prosecutrix (PW-1) is the third one. He has also stated that after the marriage, the first, second, and third children were born at one-year difference 10
16. Mother of prosecutrix (PW-5) has not stated anything specific about the date of birth of the prosecutrix (PW-1).
17. The learned Trial Court appreciated the testimony of J.R. Dhirahi (PW-9), Principal of Middle School and find that date of birth of the prosecutrix was below 18 years of age.
18. In this case, though the mark list of the Prosecutrix (PW-1) discloses the date of birth of the Prosecutrix to be 10.04.1991 but in the absence of any material to show as to on what basis such entry was made, it is rendered wholly meaningless. Significantly, no birth certificate, hospital record, municipal register entry, gram panchayat record, or medical age determination (ossification) report was produced by the prosecution. In the absence of primary evidence, and with the school record being unproved and based on hearsay entries, the prosecution has not discharged its burden of establishing that the prosecutrix was below 18 years of age at the relevant time. As regards the date of birth in the mark sheet, it was the bounden duty of the prosecution to prove this fact by examining the author who has entered such date of birth and its basis but all this has not been done. The father of prosecutrix (PW-4) merely gave a rough estimate based on the year of marriage and spacing between children, which is at best an approximation 11 and not proof of exact age. It is settled in law that only on the basis of date of birth of the Prosecutrix on mark sheet or the school admission register, no inference can be drawn regarding age of the Prosecutrix unless the same is corroborated by the substantive piece of evidence.
19. 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 12 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. held as follows :-
"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 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 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 13 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."
20. In the light of aforesaid judgment of Hon'ble Apex Court in Alamelu (supra), this Court finds that document viz dakhil kharij register of primary school of the prosecutrix which contain the entry of date of birth was not produced by the prosecution before the learned Trial Court and J.R. Dhirahi (PW-9) admitted this suggestion that on the basis of mark list of primary school, he entered the date of birth of the prosecutrix (PW-1). Apart from the mark sheet of the prosecutrix, there is no clinching and legally admissible evidence on record to prove that the Prosecutrix, on the date of incident, was below 18 years of age. In absence of any incriminating evidence regarding date of birth of the Prosecutrix (PW-1), it would be very difficult for this Court to arrive at finding that the Prosecutrix was minor at the time of incident. Thus, the finding of the learned Trial Court holding the prosecutrix to be minor on the the date of incident is not 14 sustainable in the eye of law. Accordingly, this Court set aside the finding of the learned Trial Court holding the prosecutrix to be minor.
21. The next question which arises for consideration by this Court whether the Prosecutrix (PW-1) was abducted after enticing and forced her with intent to illicit intercourse against her will by the accused/appellant.
22. The Prosecutrix (PW-1) stated that on the date of the incident, i.e., 20.05.2007, she, along with her grandmother, had gone to Sonmuda market, where the accused Santosh Panika met her on the way and told her that he was going to her village and would drop her there. Thereafter, after informing her grandmother, she went with the accused/appellant. However, instead of taking her to her village Ghaghra, the accused/appellant took her by a different route. When she objected, the accused/appellant threatened to kill her if she raised any hue and cry. Thereafter, the accused/appellant took her to the house of one Mukesh in village Baghouri and kept her in a room, where he forcibly established sexual intercourse with her. On the next day, the accused/appellant took her to Katoutiya Poultry Farm at Manendragarh, where he continued to commit forcible sexual intercourse with her. 15
23. In paragraph 16 of her cross-examination, the Prosecutrix (PW-1) admitted that there was a huge crowd in the market and that although the accused took her by a different route from the market, she did not inform anyone there. She also admitted that when the accused started leading her along a different route, there were houses nearby and children were playing outside, but she did not inform anyone because the accused/appellant had threatened her. She further admitted that she went with the accused/appellant on a bicycle to village Badhouri, but she did not attempt to escape by jumping off the bicycle because the accused/appellant had threatened her.
24. The Prosecutrix (PW-1), in paragraph 18 of her cross-
examination, also admitted that from village Badhouri, on the next day in the morning, she went by bicycle up to Manendragarh-Kathautiya, and they reached there by evening. She admitted that many villages came on the way from village Badhouri to Manendragarh-Kathautiya before reaching there in the evening. Many people were met on the way. They had breakfast in the morning and lunch in a hotel on the way, but she did not tell anyone about the incident as she did not recognize any person on the way. She also admitted that on the way, she did not lodge any report at 16 any police station or outpost because she did not see any police outpost or police personnel in between.
25. In paragraph 20, the Prosecutrix (PW-1) further admitted that the accused used to work at the poultry farm in village Kathautiya. He used to go to work at 7 o'clock in the morning and return at 4 o'clock in the evening. Around the place where the accused lived, there were many other houses as well. Other male and female labourers were also working at the poultry farm, and she had informed the women and men living there about the incident, though she did not know the names of the persons to whom she had disclosed it. She admitted that she did not tell anyone there that she had come from her house with the accused. She stayed in village Kathautiya with the accused for about 20- 25 days. She used to cook food in the house, and the accused used to bring grocery materials. She also admitted that both of them used to live together in the same house. For bathing, washing, and attending to daily routine activities, she used to go near the tap outside the house. People from nearby used to come there to fetch water from the tap, but she did not tell the people coming there about the incident.
26. The aforesaid testimony of Prosecutrix (PW-1) clearly goes 17 to show that while accompanying the accused/appellant to village Baghouri and then to Manendragarh-Kathoutiya through the habitant area, the Prosecutrix must have had the sufficient opportunity to make a disclosure of her being taken away and subjected to sexual intercourse by the accused/appellant and during all this long period they enjoyed physical relationship without any protest from her side. Further, the conduct of the Prosecutrix in not resisting the act of the accused and submitting herself to his disposal speaks in volumes regarding her clear cut consent but the learned trial Court did not appreciate this fact and only on this ground that the age of the prosecutrix was below 16 years of age, recorded perverse finding. In these circumstances, the appellant is definitely entitled to be acquitted of the charges leveled against him by extending him benefit of doubt.
27. In the result, the appeal is allowed. Conviction of the accused/appellant under Sections 376, 363 and 366 of the IPC and sentenced imposed thereunder are hereby set aside. He is acquitted of the said charges by extending him benefit of doubt.
28. The appellant is on bail. Keeping in view the provisions of Section 437-A Cr.P.C. (481 of the B.N.S.S.), the appellant is 18 directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety 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 Hon'ble Supreme Court.
29. 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.
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(Rajani Dubey) JUDGE Digitally signed by pekde VIJAY BHARATRAO PEKDE Date: 2026.05.05 12:01:33 +0530