Budhelal Bharti vs State Of Chhattisgarh on 16 March, 2026

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Chattisgarh High Court

Budhelal Bharti vs State Of Chhattisgarh on 16 March, 2026

1. This criminal appeal under Section 374(2) of the Code of Criminal VED PRAKASH Procedure has been preferred by the appellant-Budhelal Bharti (in jail) DEWANGAN Digitally signed by VED PRAKASH assailing the judgment of conviction and order of sentence dated DEWANGAN Date: 2026.03.25 11:28:02 +0530 07.07.2021 passed by the learned Additional Sessions Judge, Second 2 Fast Track Special Court (POCSO Act), Durg (C.G.), in Special Sessions Case No. 39/2020, whereby the appellant has been convicted and sentenced in the following manner:

              Conviction                          Sentence

     Offence U/s. 376 of I.P.C.     Life imprisonment and fine of amount
                                    Rs. 2000/-, in default of fine one year
                                    additional R.I.

     Offence U/s. 363 of I.P.C.     R.I. for 7 years and fine of amount Rs.
                                    1000/-, in default of fine 06 months
                                    additional R.I.

     Offence U/s. 366 of I.P.C.     R.I. for 10 years and fine of amount
                                    Rs. 1000/-, in default of fine 06 months
                                    additional R.I.

All the sentence are directed run concurrently

2. By the impugned judgment of conviction, the appellant has also been convicted for the offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as 'POCSO Act'), but no separate sentence has been awarded for the offence under Section 4 of POCSO Act, as he has already been sentenced under Section 376 of IPC.

3. As per the case of the prosecution, on 30.05.2017, at about 15:15 Hrs, the mother of the victim (PW-2) lodged a missing report to the police that her minor daughter is missing since 10:00 AM on 30.05.2017 and her whereabouts could not be traced out. She suspected that the appellant who is also missing from the same time, had kidnapped her minor daughter. The police registered the FIR (exhibit P-6) for the 3 offence under Section 363 of IPC against unknown person and started investigation. During the investigation, the victim recovered on 01.06.2017, from the possession of the appellant and recovery panchnama (exhibit P-1) was prepared. She was sent for her medical examination to Govt. Hospital, Supela, Bhilai, where he was medically examined by PW-5/Dr. Smt. Pushpanju Climis, who gave her report (exhibit P-14), who medically examining the victim, the doctor has not found any external injuries on her body, however mild redness was noticed in the vaginal wall with discharge present. She opined that the opinion can be given after bio-chemical examination report from FSL. He also referred her to Radiologist for age determination. Two slides of her vaginal swab were prepared, sealed and handed over to police for its FSL examination. Spot map (exhibit P-7) was prepared by the Police and exhibit P-11 was prepared by the Patwari. With respect to age and date of birth of the victim, the police has seized the school register vide seizure memo (exhibit P-32) and after retaining its attested true copy (Article-A), the original register was returned back to the school and as per the school register, her date of birth is 15.07.2002. The said school register is of class-9th. The victim was also sent for her x-ray examination for her age determination, which was conducted by PW-10/Dr. B.N. Dewangan. After the x-ray examination of the bones of the victim, he gave his report (exhibit P-3) and opined that the age of the victim is 15 ½ - 16 ½ years. The xerox copy of the birth certificate of the victim (exhibit P-10) has also been seized by the police. The appellant was arrested on 02.06.2017, he too was sent for his medical examination to Govt. Hospital, Supela, 4 where he was medically examined by PW-6/Dr. Jalaj Goutam, who gave his report (exhibit P-16). While medically examining the victim, the doctor has not noticed any external injuries on his body and opined that he is able to do sexual intercourse. The underwear of the victim, vaginal slides and pubic heirs and underwear of the appellant were sent for its chemical examination to FSL Raipur, from where report (exhibit P-36) was received and semen and sperms were found on all the articles, except the pubic heirs of the victim (Article-C).

4. Statement of the witnesses under section 161 of CrPC and statement of the victim under section 164 of CrPC have been recorded and after completion of usual investigation, charge sheet was filed against the appellant for the offence under sections 363, 366 and 376 of IPC and section 4 of the POCSO Act.

5. After filing of the charge-sheet, the learned trial Court framed charges against the appellant for the offences punishable under sections 363, 366 and 376 of the Indian Penal Code and section 4 of the POCSO Act. The appellant abjured his guilt and pleaded false implication, thereby claimed to be tried.

******* In order to bring home the charges, the prosecution examined as many as 11 witnesses and exhibited the relevant documents including the First Information Report, seizure memos, medical examination reports, school records relating to the age of the prosecutrix, and the Forensic Science Laboratory report. The statements of the accused under Section 313 of the Code of Criminal Procedure were also recorded, wherein he denied the incriminating 5 circumstances appearing against him in the prosecution evidence and pleaded innocence. Two defence witness have been examined by the accused.

******* Upon appreciation of the oral and documentary evidence available on record, the learned trial Court convicted the appellant under sections 363, 366 and 376 of the IPC and Section 4 of the POCSO Act and sentenced him as mentioned hereinabove. Hence this appeal.

6. Learned counsel for the appellant submitted that, the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses, which cannot be made basis to convict the appellant in the offence in question. The school record has not been proved in accordance with law and is not sufficient to prove the age of the victim, particularly when no school record of initial schooling of the victim has been produced. The school record (Article-A) is of class-9th. The original copy of birth certificate of the victim has not been produced by the prosecution and it is only a xerox copy, which cannot be relied upon without there being any verification from the original record or the record maintained by the Municipal Corporation. The doctor who conducted the ossification test of the victim, has opined that her age was in between 15 ½ - 16 ½ years, but admitted in his evidence that, there are error of margin of two years or either side in the said age determined by him, thus the prosecution could not establish the victim was minor on the date of incident and less than 18 years of age by 6 producing any cogent evidence. He would further submit that the victim being the major girl, having love affair with the appellant had eloped with him on her own will and engaged in making consensual physical relation without raising any objection or protest. She was the consenting party in making physical relation with the appellant, and therefore, no offence of either kidnapping or rape is made out and the appellant is entitled for his acquittal.

7. Per contra, learned counsel appearing for the State submitted that the prosecution has successfully proved the guilt of the appellant beyond reasonable doubt. It was argued that the complainant's report, supported by the investigation and recovery of the victim from the appellant's custody, establishes that the victim was forcibly taken by the appellant. The statements of the witnesses under Section 161 of CRPC, as well as the victim's statement under Section 164 of CRPC, consistently support the prosecution case and show that the appellant was responsible for the kidnapping and sexual assault. ******* Learned counsel further contended that the age of the victim has been corroborated through the school records seized during investigation, indicating that she was a minor at the time of the incident, which has been supported by her class-10th mark-sheet (exhibit P-10) and ossification test report (exhibit P-3). The medical examination report (exhibit P-14) confirms that she had been subjected to sexual intercourse. The FSL report also substantiates that semen and human spermatozoa were found on the victim's vaginal slides, her underwear, and the appellant's underwear, which clearly 7 connects the appellant to the sexual activity. Learned counsel, therefore, prayed for the dismissal of the appeal.

8. We have heard the learned counsel for the parties and perused the records and evidence adduced.

9. The first and foremost question arises for consideration would be the age of the victim, as to whether on the date of incident she was minor or not.

10. The prosecution bears the inescapable burden to prove beyond reasonable doubt that the victim was under 18 years old on the date of the incident to invoke the stringent provisions of Section 4 of the POCSO Act, 2012, where "child" under Section 2(1)(d) means a person under 18 years. The prosecution has relied upon three evidences i.e. school record, birth certificate and ossification test report. The school record (Articles-A and B) is the school record of class-9th, where the victim is taken admission. The said school record is sought to be proved by PW-9, who is the Sub-Inspector of Police. He stated in his evidence that, during the investigation, he wrote a letter to the Headmaster of the school for production of the school register and then seized the school register vide seizure memo (exhibit P-32). After retaining its attested true copy, the original register was returned back to him. The attested copy of the school register is Articles- A and B. He neither the teacher or author of the said school register. No person from the school has been examined to prove the said school register and its contents. In absence of the author of the school register, the same cannot be taken into consideration that the 8 entries made in it is the correct entry made by the school authorities. One more aspect is that, it is the school register of class-9th and there is no record of the initial schooling of the victim.

11. The admissibility and evidentiary value of the school record has been considered by the Hon'ble Supreme Court in the case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602 and P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846.

12. The other piece of evidence is the xerox copy of birth certificate (exhibit P-10). The mother of the victim (PW-2) has stated in his evidence that he gave the xerox copy of the birth certificate of the victim to the Police, which is exhibit P-10. There is no seizure memo of the said birth certificate by the Police. The said birth certificate appears to be issued on 10.01.2017 by the Station House Officer, Police Station Ranchirai, District Balod. There is no evidence on record of any police authorities that they have seized the said birth certificate from the mother of the victim or verified from the concerned original record from the office of Registrar (Birth and Deaths) or the concerned Police Station, from where it was issued. It is very difficult to determine the age of the victim on the basis of xerox copy of the birth certificate, without there being any verification from the original record, particularly when the process under which it came to be on record is also unusual.

13. The third evidence is the ossification text report (exhibit P-3). PW-10, Dr. B.N. Dewangan, who conducted the ossification test of the victim has stated that on being examination of the bones of the victim, he assessed her age between 15 ½ - 16 ½ years and his report is exhibit P-3. He admitted in his cross-examination that there is possibility of error of margin of two years in either side.

14. In the case of "Ramdeo Chauhan @ Rajnath v. State of Assam"

2001 (5) SCC 714, the Hon'ble Supreme Court has held that:-

"51. In his report the doctor has detailed all the data on which he reached his conclusion. I do not propose to extract all such data here except pointing out that such data collected by Dr. B.C. Roy are in consonance with the guidelines provided in the text-books on medical jurisprudence. (vide Modis Medical Jurisprudence and Jhala & Rajus Medical Jurisprudence). Ossification test is done for multiple joints, for which the radiological report was obtained. The margin of error according to authorities on medical jurisprudence can be two years either way as the maximum. In this context it is useful to extract the relevant passage from Jhala & Rajus Medical Jurisprudence (6th Edn., page 198):

If ossification test is done for a single bone the error may be two years either way. But 10 if the test is done for multiple joints with overlapping age of fusion the margin of error may be reduced. Sometimes this margin is reduced to six months on either side.

52. Of course the doctors estimates of age is not a sturdy substitute for proof as it is only his opinion. ...."

15. In view of the aforesaid evidence produced by the prosecution, it cannot be said that the prosecution has successfully discharged his burden to prove that the victim was minor on the date of incident and less than 18 years of age. The school record has not been proved by its author or any of the school teacher and the same was school record of class-9th. The xerox copy of birth certificate has also not been proved by producing its original or verification from the original record kept in the offence, particularly when the process of coming on record of that document is also improper, as there is no seizure memo of that document and no police authorities are saying that they seized the said copy of birth certificate from the victim or her parents. The ossification test report and determination of age having error of margin of two years on either side as has been admitted by the doctor, who conducted the ossification test of the victim, therefore, the finding recorded by the learned trial Court with respect to the age of the victim appears to be the perverse finding.

16. So far as the offence of kidnapping and rape are concerned, we again examine the evidence of the victim/PW-1. She stated in her evidence that she knew the appellant, who used to come to her neighbor's house. In the month of May 2017, he allured her that he will marry her and took her by his motorcycle. He took her to his sister's house at village Bhaisagaon, thereafter to his maternal uncle's house at Baloda Bazar. They stayed there in the night and in the next morning, they had gone to his maternal aunt's house. They stayed there also for a night, where he made physical relation with her. Thereafter he took her to Banjari Mandir, Raipur and performed marriage after applying vermilion on her head and by wearing mangalsutra. Thereafter, they came to Chhawni Police Station, where she found her mother, maternal uncle and brother-in-law of the appellant and thereafter the police proceedings were started. In cross-examination she stated that, there was a dispute between her family and the family of her neighbors. However she used to visit the houses of her neighbors. He stated that, at the time, when the appellant took her by his motorcycle, she has not raised any alarm and has not shouted. She had seen various persons on the road, when she was going with the appellant. She also admitted that the persons of the vicinity were also there. They traveled by the motorcycle for about 2-3 hours and the place where, the appellant took her with him various persons were residing, but she had not called anyone for help. She had not asked to help her from any person. She further stated that when the appellant taking her to Baloda-Bazar, she had not shouted for help. Throughout the traveling with the appellant, she has not raised any alarm and has not 12 made any complaint to anyone. The maternal aunt of the appellant, gave her clothes, which she wore. The entire conduct of the victim is clearly demonstrates that, she was the consenting party in eloping with the appellant and making consensual physical relation. During the entire traveling, she has not made any complaint and has not raised any alarm. Even while making physical relation, she has not protested and has not tried to give any scratch mark or teeth bite on his body. Even she has not made any complaint to the person, which she met in the house of the appellant's relative.

17. So far as the alleged elopement and kidnapping of the victim are concerned, in view of the evidence available on record, it is necessary to consider the judgment of the Hon'ble Supreme Court in S. Varadarajan v. State of Madras, AIR 1965 SC 942, wherein it has been held as under:"

"9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection 13 knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

10. 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. In our, opinion 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 14 doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, 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".

18. From the conduct of the victim and in view of the aforesaid judgment of S. Vardarajan (supra), it cannot be said that the appellant has kidnapped the victim and procured the minor girl, as the victim is not found to be minor and no offence of either kidnapping or procuring a minor girl is made out against the appellant.

19. Recently, the Hon'ble Supreme Court in the matter of Tilku @ Tilak Singh v. State of Uttarakhand, Criminal Appeal No. 183 of 2014, decided on 06.02.2025, has considered the aforesaid judgment of S. Varadarajan (supra) and hold that when the victim herself voluntarily gone along with the appellant, traveled to various places and also resided with him without raising any objection, no offence of kidnapping is made out.

20. PW-2, the mother of the victim has deposed on the basis of information given by the victim and when the victim herself is found to be consenting party in making physical relation with the appellant, and she on her own will eloped with him, the evidence of her mother does not have much significance. In cross-examination she admitted that, when her daughter came back, she informed that the appellant 15 performed marriage with her at Banjari Mandir. She further admitted that she had quarrel with the friends of the appellant.

21. PW-3 is the person of the vicinity, who stated in his evidence that, when he came back from the duty, his wife informed him that the victim was being kidnapped by the appellant, thereafter they lodged the report to the police, however, when the victim was found to be the consenting party, therefore, his evidence also have not much significance.

22. PW-4 is the maternal uncle of the victim. He met her at police station Chhawni and stated that he went to the police station along with his sister. Though he declared hostile, but in cross-examination by the prosecution, he admitted his police station (exhibit P-13). In cross- examination, he stated that he came to know about the incident through the telephonic information given by her sister.

23. From all these evidences, the prosecution's case appears to be based on insufficient evidence with respect to kidnapping and rape. When the victim was found to be major and she on her own will eloped with the appellant without raising any objection, engaged in making consensual physical relation without any protest, it cannot be said that she was subjected to rape by the appellant.

24. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. There is 16 contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case and the appellant is entitled for benefit of doubt.

25. In the result, no offence against the appellant under sections 363, 366 and 376 of IPC or section 4 of POCSO Act are made out and therefore, the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellant is acquitted from all the charges.

26. The appellant is reported to be in jail since 02.06.2017. He be released forthwith, if not required in any other case.

27. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant is directed to furnish a personal bond for a 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.

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

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

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