Chattisgarh High Court
State Of Chhattisgarh vs Omprakash Maar on 20 February, 2026
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2026:CGHC:9023-DB
Digitally
VISHAKHA signed by
BEOHAR VISHAKHA
NAFR
BEOHAR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 103 of 2015
1 - State Of Chhattisgarh Aged About 18 Years Through The
Station House Officer, Odgi, District Surajpur, Chhattisgarh.,
Chhattisgarh
--- Appellant
versus
1 - Omprakash Maar S/o Dubraj Maar Aged About 20 Years R/o
Village Sendur, Outpost Vijay Nagar, Police Station Balrampur,
District Balrampur-Ramanujganj Chhattisgarh., Chhattisgarh
--- Respondent
CRA No. 158 of 2015
1 - Shivdhari Yadav S/o Bachhalal Yadav Aged About 40 Years R/o
Village- Parsiya, P.S. Odgi, Distt.- Surajpur, C.G., Chhattisgarh
---Appellant
Versus
1 - State Of Chhattisgarh S/o Through The Station House Officer,
Police Station Odgi, Distt.- Surajpur, Civil And Revenue District-
Surajpur, C.G., Chhattisgarh
--- Respondent
For State :- Mr. Dharmesh Shrivastava, Dy. A.G.
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For Respondent in :- Mrs. Parwati Suryawanshi, Advocate
in ACQA No.103/2015 on behalf of Mr. Bhupendra Singh,
Advocate
For Appellant in :- Mrs. Seema Mishra, Advocate on
CRA No.158/2015 behalf of Mrs. Uttara Shrivastava,
Advocate
Division Bench : Hon'ble Shri Sanjay S. Agrawal and
Hon'ble Shri Amitendra Kishore Prasad, JJ.
Judgment on Board 20.02.2026 Per Amitendra Kishore Prasad, J.
1. Since both the above-captioned appeals arise out of the common judgment dated 23.01.2015 passed by the learned First Additional Sessions Judge, Surajpur, District Surajpur, C.G. in Sessions Trial No.74/2014, they are being decided by this common judgment.
2. ACQA No.103/2015 has been preferred by the State challenging the acquittal of accused- Omprakash for the offences punishable under Section 376 of Indian Penal Code (in short, 'IPC') and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short, 'the Act, 2012).
3. Criminal Appeal No.158/2015 has been preferred by accused- Shivdhari Yadav assailing his conviction under Sections 363 and 366-A of IPC and the sentence of simple imprisonment for two years on each count with a fine of 3 Rs.100/- each, and in default of payment of fine, to undergo additional imprisonment for seven days for each offence, with a direction that both the sentences shall run concurrently.
4. Case of the prosecution, in brief, is that prosecutrix lodged a First Information Report at Police Station Odgi stating that she is a resident of Village Parsiya and a student of Class XII. She alleged that on 16.04.2014, after being scolded by her mother, she left her house and went to the house of accused- Shivdhari Yadav. It is further the case of the prosecution that thereafter accused- Shivdhari Yadav took her to the house of co-accused Omprakash, where she was kept in his room during the night. According to the prosecution, co-accused- Omprakash assured the prosecutrix that he would marry her and, on the pretext of marriage, allegedly established physical relations with her during the night. It is further alleged that in the early morning hours, she was driven away from the house of co-accused- Omprakash, whereafter she went to the house of her friend Devmaniya in Village Baijnathpur and subsequently returned to her house at Village Parsiya. Owing to fear and hesitation, she did not disclose the incident immediately to anyone and only on 21.04.2014 narrated the incident to her parents, pursuant to which, the report was lodged at Police Station 4 Odgi. On the basis of the aforesaid information furnished by the prosecutrix, FIR (Ex.P-1) was registered on 21.04.2014 at Police Station Odgi against the accused persons for the offences punishable under Sections 363, 366 and 376 of IPC and Section 4 of the Act, 2012, and the investigation was set into motion.
5. During the course of investigation, the Investigating Officer prepared the spot map of the place of occurrence (Ex.P-2) and seized the necessary articles related to the incident. The statements of the prosecutrix and other witnesses were recorded under Section 161 of the Code of Criminal Procedure. The prosecutrix was sent for medical examination, which was conducted on 21.04.2014 by the concerned medical officer (PW-5 Dr. Garima Singh). As per the medical examination report (Ex.P-3), no external injuries were found on the body of the prosecutrix and vaginal slides were prepared and preserved for chemical examination. The doctor (PW-5) opined that a conclusive opinion regarding sexual intercourse could be given only after receipt of the chemical examination report. Seized articles were sent to FSL for chemical examination and as per FSL report (Ex.P-6), human spermatozoa was found on the seized slides of prosecutrix.
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6. After due investigation, accused persons were charge- sheeted before the jurisdictional Criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which, accused persons abjured their guilt and entered into defence by stating that they have not committed the aforesaid offences.
7. In order to bring home the offences, the prosecution examined as many as 8 witnesses and brought on record 6 documents vide Ex.P/01 to Ex.P/6. The accused persons, in their defence, examined none, but exhibited 6 documents vide Ex.D/01 to Ex.D/06. Statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, wherein they denied the circumstances appearing against them in the evidence on record, pleaded innocence, and alleged false implication.
8. The learned trial Court, after hearing the learned counsel for the parties and upon due appreciation of the evidence available on record, vide judgment dated 23.01.2015, acquitted co-accused Omprakash of the charges under Section 376 of IPC and Section 4 of the Act, 2012. However, the trial Court convicted co-accused Omprakash for the offences punishable under Sections 363 and 366 of IPC and also convicted accused- Shivdhari Yadav for the offences 6 punishable under Sections 363 and 366-A of the IPC and sentenced him as indicated in the opening paragraph of this judgment. Being aggrieved by the said judgment of conviction and acquittal, both the State as well as accused- Shivdhari Yadav have preferred separate appeals before this Court.
9. ACQA No.103/2015:- Learned counsel for the State, assailing the acquittal of accused- Omprakash, submits that the learned trial Court has committed a grave error in discarding the testimony of the prosecutrix on the ground of contradictions and alleged inconsistencies. It is contended that in the First Information Report as well as in her statement recorded under Section 161 of the Code of Criminal Procedure, the prosecutrix had specifically alleged that co-accused- Omprakash had committed sexual intercourse with her on the pretext of marriage. It is further argued that merely because the prosecutrix did not fully support the prosecution case during her deposition before the Court or made certain inconsistent statements, her earlier version cannot be brushed aside in toto, particularly when the core allegation regarding sexual intercourse remained consistent at the initial stages of the prosecution. He also submits that minor discrepancies, improvements or partial hostility are natural and do not go to the root of the 7 prosecution case. Placing reliance on the settled legal position, it is urged that conviction can be based on the sole testimony of the prosecutrix if the same is found to be cogent, credible and trustworthy, and that her evidence stands on a higher pedestal in cases of sexual offences. It is contended that the learned trial Court failed to appreciate this settled principle and unnecessarily sought corroboration in material particulars. It is also submitted that the FSL report reveals the presence of human spermatozoa on the vaginal slide of the prosecutrix, which lends corroboration to the allegation of sexual intercourse. According to the learned counsel for the State, this scientific evidence was not properly appreciated by the trial Court while recording the acquittal of accused Omprakash. Thus, it is argued that the learned trial Court adopted a hyper-technical approach in evaluating the evidence and extended undue benefit of doubt to the accused- Omprakash, resulting in an erroneous acquittal which calls for interference by this Court in the appeal against acquittal.
10. Learned counsel appearing for co-accused- Omprakash supports the judgment of acquittal and submits that the prosecutrix herself resiled from her allegations in Court and categorically stated that co-accused-Omprakash did nothing 8 to her. It is contended that she admitted compromise and stated that she wanted to save co-accused -Omprakash. There is no medical evidence connecting co-accused Omprakash with the alleged act and no DNA examination was conducted. It is therefore argued that the acquittal is based on proper appreciation of evidence and does not warrant interference in appeal against acquittal.
11. CRA No.158/2015:- Learned counsel for the appellant- Shivdhari Yadav submits that the learned trial Court has erred in convicting and sentencing the appellant under Sections 363 and 366-A of IPC without there being cogent and reliable evidence on record. It is contended that, as per the own version of the prosecutrix, she had voluntarily left her house after being scolded by her mother and there is no material to show that the appellant had induced, enticed or forcibly taken her away from the lawful guardianship of her parents. He further submits that mere presence of the prosecutrix at the house of the appellant, in absence of any evidence of active participation in taking or inducing her, does not constitute the offence of kidnapping or abduction. It is submitted that the prosecution has failed to establish any overt act on the part of the appellant which would satisfy the essential ingredients of the offences under Sections 363 and 366-A of the IPC. It is 9 also contended that there existed a prior land dispute between the families of the parties, on account of which, the appellant has been falsely implicated in the present case. According to the learned counsel, this aspect has not been properly considered by the trial Court while recording the conviction. Lastly, he submits that the essential ingredients of Section 366-A of IPC are wholly absent in the present case. In absence of proof of inducement, intention or active role attributable to the appellant, the conviction recorded by the trial Court is unsustainable in law and deserves to be set aside.
12. Per contra, learned State counsel submits that the prosecutrix was admittedly below 18 years of age at the time of the incident and, therefore, her consent, even if any, is legally immaterial. It is contended that the evidence on record shows that she was taken out of the lawful guardianship of her parents and left at the house of co-accused Omprakash, which clearly satisfies the ingredients of the offences under Sections 363 and 366-A of the IPC. It is thus argued that the learned trial Court has rightly appreciated the evidence and recorded the conviction, and no interference is warranted in the appeal.
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13. We have heard learned counsel for the parties and perused the material available on record.
14. The first question that arises for consideration before this Court is whether the finding recorded by the learned trial Court that the prosecutrix was a minor, i.e., below 18 years of age on the date of the incident, is correct
15. When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredient to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the "child" which means any person below the age of eighteen years.
16. In Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263, the Hon'ble Supreme Court laid down the guiding principles for determining the age of a child, which read as follows:-
"22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have 11 been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000.
Rule 12 referred to hereinabove reads as under:
"12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;12
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the 13 basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim 14 of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-
PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the 15 absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
17. In this regard, the prosecution examined PW-3 Madan Singh, Headmaster of Government Higher Secondary School, Baijnathpur, who produced the scholar register maintained in the school. He proved the relevant entry 16 relating to the prosecutrix, wherein her date of birth is recorded as 04.08.1998. The extract of the admission register was duly exhibited. The witness has stated that the register is maintained in the ordinary course of official business. In his cross-examination, nothing material has been elicited to discredit the authenticity of the document or to show that the entry was manipulated or subsequently inserted. The entry in the school admission register is admissible in evidence under Section 35 of the Indian Evidence Act, being an entry made in a public or official record in the performance of official duty. It is well settled that when such an entry is proved by a competent witness and there is no material to doubt its correctness, the same can be safely relied upon for determination of age, particularly in the absence of any rebuttal evidence from the defence. The defence has not produced any documentary evidence, such as birth certificate, nor has any medical evidence been adduced to dispute the recorded date of birth. No suggestion has been put to PW-3 that the date of birth was recorded on the basis of any incorrect information. Thus, the entry remains unrebutted. The incident in the present case occurred on 16.04.2014. If the date of birth of the prosecutrix is taken as 04.08.1998, she was approximately 15 years and 17 8 months old on the date of occurrence. Therefore, she was admittedly below 18 years of age and was a minor within the meaning of Sections 361, 363 and 366-A of the Indian Penal Code. In view of the aforesaid discussion, this Court holds that the prosecution has proved beyond reasonable doubt that the prosecutrix was a minor on the date of incident. Consequently, her consent, if any, would be of no legal consequence for the purpose of the offence of kidnapping from lawful guardianship. The finding recorded by the learned trial Court in this regard is well-founded and is hereby affirmed.
18. Now the question that arises for consideration whether the learned trial Court is justified in acquitting the accused- Omparkash for the offence under Section 376 of IPC and Section 4 of the Act, 2012.
19. the Hon'ble Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal, which reads as under:-
"25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a possible one, particularly when evidence on record has been 18 analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
20. The Supreme Court in the matter of Constable Surendra Singh and another v. State of Uttarakhand reported in (2025) 5 SCC 433, whereby in Para-11 & 12, it has been held that the High Court should interfere in the order of acquittal, if the same suffers from perversity and is based on misreading of material evidence etc. and observed as under:
"11. Recently, in the case of Babu Sahebagouda Rudragoudar and others v. State of Karnataka, (2024) 8 SCC 149, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus:
"38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging 19 acquittal of the accused recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482-83, para 29) 6 (2024) 8 SCC 149 "29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words : (Chandrappa case [Chandrappa v. State of Karnataka (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325], SCC p. 432, para 42
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it 20 may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are 21 possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.' "
40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748], this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows :(SCC p. 584, para 8) "8. ... 8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with 22 the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity;
41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the 23 accused is possible from the evidence available on record."
21. Further, the Hon'ble Apex Court vide its judgment dated 12.02.2024 (Criminal Appeal No 1162 of 2011) passed in Mallappa and Ors. Versus State of Karnataka reported in 2024 (3) SCC 544 has held in para 36 as under:-
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:-
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive--
inclusive of all evidence, oral and
documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;24
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-
appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court.
22. Thus, in light of the above-quoted guidelines, we have to examine whether the findings recorded by the learned trial Court suffers from patent perversity or the same is based on misreading/omission to consider material evidence on record and whether two reasonable views are possible or only the view consistent with the guilt of the accused is possible from the evidence available on record.
23. In the present case, the prosecutrix (PW-1) deposed that on the date of the incident, after being scolded by her mother, she went to the house of accused- Shivdhari. In her examination-in-chief, she stated that accused- Shivdhari had 25 established wrongful relations with her and specifically stated that co-accused- Omprakash had done nothing to her. She admitted her signatures on the FIR (Ex.P-1) and other documents. Since she resiled from her earlier statements, she was declared hostile. In her cross-examination by the prosecution, she admitted that she had earlier stated before the police that accused- Shivdhari had taken her to the house of co-accused- Omprakash and that co-accused- Omprakash had committed sexual intercourse with her. However, in her deposition before the Court, she clearly stated that a compromise had taken place with co-accused Omprakash and that she wanted to save him. In her cross-examination by the defence, she further admitted that she had left her house on her own and returned the next morning. She also admitted that the report was lodged after consultation and that there existed a land dispute between her father and the family of accused- Shivdhari.
24. Apart from this, PW-5 Dr. Garima Singh, who conducted the medical examination of the prosecutrix on 21.04.2014, stated that the secondary sexual characteristics of the prosecutrix were developed and no external injuries were found on her body. She prepared two vaginal slides and preserved them for chemical examination. The doctor further opined that the 26 prosecutrix was habituated to sexual intercourse. As per the FSL report, human spermatozoa were detected on the vaginal slide; however, she did not give any definite opinion regarding the identity of the person involved.
25. On overall appreciation of the evidence, this Court finds that the testimony of the prosecutrix with regard to the allegation of rape is materially inconsistent and suffers from serious contradictions. In the FIR, the prosecutrix alleged that co- accused Omprakash had committed sexual intercourse with her. However, in her deposition before the Court, she categorically stated that co-accused- Omprakash had not committed any act with her and admitted that a compromise had taken place and that she wanted to save him. Thus, the core allegation of rape stands specifically denied by the prosecutrix in her substantive evidence before the Court. Her testimony, therefore, appears self-contradictory and vacillating. Further, there is a delay of about five days in lodging the FIR and the prosecutrix herself admitted that the report was lodged after consultation. Coupled with the admitted existence of a land dispute between the families, the possibility of embellishment and exaggeration cannot be ruled out. No independent witness has been examined to corroborate the allegation of rape against co-accused- 27 Omprakash. Moreover, the medical evidence does not conclusively implicate co-accused Omprakash. No external injury was found on the person of the prosecutrix and she was found to be habituated to sexual intercourse. Though spermatozoa were detected on the vaginal slide, but no DNA examination or other scientific evidence was conducted to connect the same with co-accused Omprakash. The medical and forensic evidence, at best, indicate sexual intercourse but do not establish the identity of the perpetrator.
26. In the matter of Chotkau v. State of Uttar Pradesh, (2023) 6 SCC 742, Hon'ble Apex Court, in para-80 has observed as under:
"80. After saying that Section 53A is not mandatory, this Court found in paragraph 54 of the said decision that the failure of the prosecution to produce DNA evidence, warranted an adverse inference to be drawn. Paragraph 54 reads as follows: (Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 SCC p.485) "54. For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country.
The prosecution would be well advised to 28 take advantage of this, particularly in view of the provisions of Section 53A and Section 164A CrPC. We are not going to the extent of suggesting that if there is no DNA profiling, the prosecution case cannot be proved but we are certainly of the view that where DNA profiling has not been done or it is held back from the trial court, an adverse consequence would follow for the prosecution."
26. In the case of Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130, Hon'ble Apex Court in para-44 has held as under:
"44. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr.P.C. the prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make 29 it a fool proof case, but they did not do so, thus they must face the consequences."
27. In the light of the aforesaid legal position, it is evident that the most crucial piece of scientific evidence, namely DNA examination, was not conducted by the prosecution to establish that the human spermatozoa found on the seized vaginal slides of prosecutrix belonged to co-accused- Omprakash. In absence of DNA profiling, the FSL report merely establishes the presence of human spermatozoa and does not connect co-accused Omprakash with the alleged act of sexual assault. Thus, the forensic evidence fails to establish the involvement of co-accused Omprakash in the alleged offence. In a criminal trial, the burden lies upon the prosecution to prove the guilt of the accused beyond reasonable doubt. In the present case, the prosecution has failed to discharge its burden and also failed to prove its case beyond a reasonable doubt. The evidence available on record does not inspire confidence and falls short of the standard required for conviction..
28. Consequently, this Court is of the considered opinion that the prosecution has failed to prove beyond reasonable doubt that co-accused Omprakash committed rape or penetrative sexual assault upon the prosecutrix. The learned 30 trial Court has assigned cogent and plausible reasons for extending the benefit of doubt to the said accused, and this Court finds no perversity, illegality or material infirmity in the impugned judgment so as to warrant interference in an appeal against acquittal. It is well settled that where two views are reasonably possible on the basis of the evidence on record and the trial Court has adopted one such permissible and plausible view, the appellate Court should be slow in interfering with an order of acquittal. In the present case, the view taken by the learned trial Court is a reasonable and possible view based on the evidence available on record. Accordingly, the acquittal of co-accused- Omprakash deserves to be respected in keeping with the well-established principles governing appellate review of acquittals.
29. Accordingly, ACQA No.103/2015 preferred by the appellant/State challenging the acquittal of co-accused Omprakash for the offences under Section 376 of the IPC and Section 4 of the POCSO Act is hereby dismissed.
30. Now, this Court shall proceed to consider the criminal appeal (CRA No.158/2015) preferred by accused- Shivdhari Yadav assailing his conviction and sentence for the offences 31 punishable under Sections 363 and 366-A of the Indian Penal Code.
31. 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 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."
32. 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 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.32
(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.
33. Furthermore, in the matter of S. Varadarajan vs. State of Madras1, which has been reiterated in the matters of Ratikanta Sutar and Others vs. State of Odisha and Others2 as well as Vaibhav Bhaskar Kole vs. The State of Maharashtra3 , the Hon'ble Supreme Court 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 1 (1965 ) 1 SCR 243 2 2021 SCC OnLine Ori 2407 3 2015 SCC OnLine Bom 4540 33 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"."
34. Reverting to the facts of the present case, and in the light of the ingredients of the offence of kidnapping from lawful guardianship as defined under Section 361 of the IPC, punishable under Section 363 of the IPC, as well as the principles of law laid down by the Hon'ble Supreme Court in S. Varadarajan (supra), it is evident that it is not in dispute that the prosecutrix was below 18 years of age on the date of the incident. The essential ingredients of Section 363 IPC are the taking or enticing of a minor out of the keeping of the lawful guardian without the consent of such guardian. Likewise, for an offence under Section 366-A IPC, the prosecution is required to prove inducement of a minor girl 34 with the intent that she may be forced or seduced to illicit intercourse. From the evidence of the prosecutrix (PW-1), it stands established that after leaving her house, she went to the residence of accused Shivdhari and remained in his company. It has further come in her evidence that thereafter she was taken to the house of co-accused Omprakash during the night hours. Even assuming that the prosecutrix had accompanied the accused voluntarily, the consent of a minor is of no legal consequence in the eye of law. Further, PW-2 father of the prosecutrix has categorically stated that he had not given consent for his daughter to leave the house or to go with the accused. Thus, the element of removal from the lawful guardianship stands duly proved. Moreover, the conduct of accused- Shivdhari in taking, accompanying or facilitating the movement of a minor girl and leaving her at the house of another adult male during the night hours clearly indicates inducement within the meaning of Section 366-A IPC. The intention of the accused is to be gathered from the surrounding circumstances, as direct evidence of intention is seldom available. The attending circumstances reasonably lead to the inference that the accused-Shivdhari Yadav was aware of and intended the consequences of his act, namely that the minor girl may be subjected to illicit intercourse. The 35 defence plea regarding existence of a land dispute between the families does not demolish the prosecution case, particularly when the core ingredients of the offences stand established by reliable evidence on record. No material contradiction, omission or inherent improbability has been brought on record so as to render the finding of guilt recorded by the trial Court unsafe.
35. In view of the aforesaid analysis, this Court is satisfied that the prosecution has proved beyond reasonable doubt that appellant- Shivdhari Yadav committed the offences punishable under Sections 363 and 366-A of IPC. The conviction recorded by the learned trial Court is based on proper appreciation of evidence and does not suffer from any perversity or illegality, and the same is hereby affirmed.
36. As regards the sentence, considering the totality of the facts and circumstances of the case, and taking into account that the accused Shivdhari Yadav has remained in custody for about four months and ten days, and has been facing the ordeal of litigation since April, 2014, i.e., for more than eleven years, and further that no criminal antecedents have been brought on record against him, this Court is of the considered opinion that the ends of justice would be adequately met if, 36 while maintaining his conviction under Sections 363 and 366- A of the IPC, the substantive sentence of imprisonment is reduced to the period already undergone by him. However, the fine amount of Rs.100/- each imposed by the trial Court is enhanced to Rs.20,000/-. The default stipulation as imposed by the trial Court shall remain intact. Upon deposit of the enhanced fine amount, the same shall be disbursed to the victim/prosecutrix as compensation under Section 357 Cr.P.C., after due verification and in accordance with law.
37. Accordingly, Criminal Appeal No.158/2015 is partly allowed. The conviction of the appellant Shivdhari Yadav under Sections 363 and 366-A of the IPC is hereby affirmed; however, his sentence is modified to the period already undergone by him, subject to payment of the enhanced fine as directed hereinabove.
38. Appellant- Shivdhari Yadav is reported to be on bail. Keeping in view the provision of Section 437-A of Cr.P.C., the appellant is directed to forthwith furnish personal bond in terms of Form No.45 prescribed in the Cr.P.C. of sum of Rs.25,000/- with one surety in the like amount before the trial 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 37 grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
39. In the result:
• ACQA No.103/2015 preferred by the appellant/State challenging the acquittal of co-accused Omprakash is hereby dismissed.
• Criminal Appeal No.158/2015 preferred by accused-
Shivdhari Yadav against his conviction and sentence is partly allowed.
37. Registry is directed to transmit the trial Court record along with a copy of this judgment to the concerned trial Court forthwith for information and necessary compliance.
Sd/- Sd/-
(Sanjay S. Agrawal) (Amitendra Kishore Prasad)
Judge Judge
Vishakha