1. Heard Mr. Ishwar Jaiswal, learned counsel for the appellant as well as Mr. Sangharsh Pandey, learned Government Advocate, appearing for the appellant.

2. It has been stated by learned State Counsel that notice has been served upon PW-3, father of the victim.

3. Today, though the matter is listed for hearing on I.A. No. 01 of 2023, which is an application for suspension of sentence and grant of bail to the appellant, however, with the consent of learned counsel for the parties, the appeal is heard finally.

4. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 19.10.2023 passed by the Additional Sessions Judge, F.T.S.C. (POCSO) Katghora, District – Korba (C.G.) in Special Criminal Case No. 45/2020, whereby the learned Special Judge has convicted and sentenced the appellant with a direction to run all the sentences concurrently in the following manner :

5. Case of the prosecution in brief is that the accused, who was already married and was living as a live-in son-in-law in his in-laws' home at village Laingi, one month before the date of the incident, he used to talk to the victim over the phone and tell her that he likes her and will marry her, which the victim refused. Meanwhile, on 24.09.2020, when the victim had gone to the grocery store to buy soap and was returning home at around 1 pm as the shop was closed, the accused met her on the way and asked her to go for a walk, which the victim refused, the accused did not agree and took her to his house in Kargi by force, saying that he will marry her, where he kept her in a separate room and raped her for 5 days continuously and threatened to kill her if she told anyone. One day when the accused was not at home, she ran away to her house and informed her parents about the incident, thereafter a written complaint (Ex.P-4) was lodged by the father of the victim (PW-3) against the accused in Pasan police station and on basis of which, FIR (Ex.P-5) has been registered. During the investigation, spot map was prepared vide Ex.P-1 and after taking consent of the victim vide Ex.P-2, the medical examination of the victim was done vide Ex.P-4 and a packet containing two vaginal slides of the victim was seized vide Ex.P-12. Undergarment, pubic hair and semen slide of the accused were seized vide Ex.P-13. Accused was also medically examined vide Ex.P-14, whereby it has been opined that the accused is capable to perform normal sexual intercourse. Accused was arrested and information about his was given to his wife vide Ex.P-15. To ascertain the age of the victim, a certified copy of dakhil kharij register (Ex.P-10C) was seized vide Ex.P-11. Memo was sent to concerned Judicial Magistrate First Class for recording statement of the victim under section 164 Cr.P.C. vide Ex.P-17, whereupon statement of the victim was recorded under Section 164 Cr.P.C by the Judicial Magistrate First Class vide Ex.P-4. A memo was sent to Naib Tahsildar for providing caste certificate of the victim vide Ex.P-20. One Rasan Card containing the name and caste of the father of the victim was seized vide Ex.P-6. Caste certificate issued by the Sarpanch of concerned Gram Panchayat in the name of father of the victim was seized vide Ex.P-8. Articles seized vide Exs.P-12 and P-13 were sent for chemical examination to Regional Forensic Science Laboratory, Bilaspur vide Ex.P-21 and a receipt was obtained vide Ex.P-22 and thereafter, FSL report was obtained vide Ex.P-23. Statements of the witnesses were recorded and after completion of investigation, when evidence of crime was found against the accused, the charge sheet has been presented before the Court of Additional Sessions Judge, F.T.S.C. (POCSO) Katghora, District Korba (C.G.) for trial.

6. In the case, charges under Sections 363, 366, 376 (2) (n), of the IPC and under Section 6 of the POCSO Act were framed against the accused and on reading out the same to the accused, he denied committing the crime and requested for trial.

7. So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 16 witnesses and exhibited 23 documents in support of its case. Statement of the appellant under Section 313 CrPC was also recorded in which though he pleaded his innocence and false implication in the case, but did not give any defense evidence in his defence.

8. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 19.10.2023 convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment, against which this appeal under Section 374(2) of the CrPC has been preferred by them calling in question the impugned judgment.

9. Learned counsel for the appellant vehemently argued that the learned trial Court has failed to properly appreciate the evidence led by the prosecution and has wrongly convicted the appellant. The prosecution failed to prove the case against the appellant beyond reasonable doubt. The statement of the victim is full of conjectures and surmises and are highly unreliable. The age of the victim has not been proved and no ossification test for determining the age has been done which makes the whole case of prosecution doubtful. Hence, the conviction is liable to be set aside.

10. On the other hand, learned State counsel for the State/respondent submitted that the appellant, who is already a married person, has committed a heinous crime of rape against a minor girl aged about 15 years and 3 months, forcibly without her consent for 5 days after abducting her and the same has been duly proved by the prosecution beyond reasonable doubt. As such, the judgment of conviction and sentence awarded by the learned trial Court is just and proper warranting no interference.

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

12. The first question for consideration before this Court would be, whether the trial Court has rightly held that on the date of incident, the victims were minor

13. 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.

14. 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 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;

(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 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 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 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.”

15. In the present case, the prosecution has presented copy of the Dakhil-Kharij register of the victim (Ex.P-10C), in which Sl.No. 419 contains the name of the victim, her father and the date of birth of victim as 11.06.2005 and she was admitted in Class-I on 01.07.2011, which has been seized from Gulabchandra Yadav (PW-8), Head Master of Government Primary School, Mohanpur (Laingi). Though, this witness has accepted the suggestion of the defence that he cannot tell on what basis the date of birth of thevictim has been entered in the Dakhil-Kharij register, but the defence has not presented any oral or documentary evidence to refuse the said date of birth, therefore, there is no reason to disbelieve the date of birth of the victim as 11.06.2005, hence, we are of the considered opinion that the trial Court has rightly held that the date of birth of the victim is 11.06.2005 and her age on the date of incident was 15 year, as such, we hereby affirm the said finding.

16. The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 363 of the IPC

17. 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.”

18. The object of Section 359 of the IPC is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients:-

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

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

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

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

So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18 years of age; (ii) such minor was in the keeping of a lawful guardian, and (iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian.

19. The Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras AIR 1965 SC 942, took the view that if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so and held that if evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian and held as under:-

“It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.”

20. Reverting to the facts of the present case, in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra), it is evident that on 24.09.2020, when the victim had gone to the grocery store to buy soap and was returning home at around 1 pm as the shop was closed, the accused met her on the way and asked her to go for a walk, which the victim refused, the accused did not agree and took her to his house in Kargi by force, saying that he will marry her, where he kept her in a separate room and raped her for 5 days continuously and threatened to kill her if she told anyone. One day when the accused was not at home, she ran away to her house and informed her parents about the incident. As such, we are of the considered view that the trial Court is absolutely justified in convicting the appellant for offence under Section 363 of the IPC.

21. The next question for consideration before us is whether the appellant has committed rape on minor victim

22. The victim has stated in her statement recorded under Section 164 CrPC that she know the accused Sudarshan Singh Yadav for the last one month. One month ago, the accused took her number from her friend Sushma and called her and asked if she would be his friend, she refused and hung up. After that, the accused called her and said that he like her and want to marry her, but she refused. After that, on 24.09.2020, she went to the grocery store in Bagbudi on her bicycle. The accused met her in Bagbudi and asked her to take her to Podi Bazar, but she refused saying that she will not go. Then the accused snatched her bicycle and forcibly made her sit on his bicycle and took her to his house in Kargi and kept her there for 5 days. She further stated that the accused's parents and his sister lived in Kargi. The accused kept her locked in a separate room. While staying at the accused's house in Kargi, when everyone was asleep at night, many times the accused forcefully made physical relations with her without her consent by saying that he will marry her and threatened her not to tell anyone. One day when the accused was not at home, she ran away from his house and came to her house in Langi and told her parents about the above incident. After that she went with her parents and reported the incident to the police station. In her Court statement, she repeated the said version, which she had given in her statement recorded under Section 164 Cr.P.C.

23. Dr. Shrishti Soni (PW-14), who has medically examined the victim, has stated that on external examination victim, though no injury was found, but her hymen was torn and she opined that there was a possibility of sexual intercourse with the victim. No question has been asked in cross-examination. She has prepared two vaginal slides of victim.

24. As per FSL report (Ex.P-25), semen stains and human sperm were not found in the vaginal slides of the victim, underwear of the accused and slide of the accused. However, the semen stains found in the underwear of the accused was not sufficient for serological examination. As such, we are of the considered opinion that the prosecution has failed to establish its case beyond reasonable doubt that the appellant has committed rape on minor victim.

25. The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 366 of the IPC

26. Section 366 of the IPC reads as under: -

“366. Kidnapping, abducting or inducing woman to compel her marriage, etc.—Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.”

27. In order to constitute offence under Section 366 of the IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and / or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal provision. So far as charge under Section 366 of the IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse.

28. Their Lordships of the Supreme Court in the matter of Mohammed Yousuff alias Moula and another v. State of Karnataka 2020 SCC OnLine SC 1118 pointing out the essential ingredients required to be proved by the prosecution for bringing a case under Section 366 of the IPC, relying upon the decision rendered in the matter of Kavita Chandrakant Lakhani v. State of Maharashtra (2018) 6 SCC 664, has clearly held that in order to constitute an offence under Section 366 of the IPC, besides proving the factum of abduction, the prosecution has to prove that the said abduction was for one of the purposes mentioned in Section 366 of the IPC, and observed as under: -

“8. Chapter XVI of IPC contains offences against the human body. Section 366, which is the pertinent provision, is contained within this Chapter. Kidnapping/abduction simpliciter is defined under Section 359 and maximum punishment for the same extends up to seven years and fine as provided under Section 363. However, if the kidnapping is done with an intent of begging, to murder, for ransom, to induce women to marry, to have illicit intercourse stricter punishments are provided from Section 363A to Section 369.

9. Section 366 clearly states that whoever kidnaps/abducts any woman with the intent that she may be compelled or knowing that she will be compelled, to either get her married or forced/seduced to have illicit intercourse they shall be punished with imprisonment of up to ten years and fine. The aforesaid Section requires the prosecution not only to lead evidence to prove kidnapping simpliciter, but also requires them to lead  evidence to portray the abovementioned specific intention of the kidnapper. Therefore, in order to constitute an offence under Section 366, besides proving the factum of the abduction, the prosecution has to prove that the said abduction was for one of the purposes mentioned in the section. In this case at hand the prosecution was also required to prove that there was compulsion on the part of the accused persons to get the victim married. [See Kavita Chandrakant Lakhani v. State of Maharashtra, (2018) 6 SCC 664].”

29. In the instant case, as the offence of sexual assault has been duly found proved by the prosecution which satisfies the requirement of Section 366 of the IPC, we are of the considered view that the trial Court is absolutely justified in convicting the appellant for offence under Section 366 of the IPC.

30. In the case of Ganesan v. State, (2020) 10 SCC 573, the Supreme Court observed and held that that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality.

31. In the case of State (NCT of Delhi) v. Pankaj Chaudhary, {(2019) 11 SCC 575}, it was observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises.

32. In the case of Sham Singh v. State of Haryana, {(2018) 18 SCC 34}, the Supreme Court observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.

33. Applying the law laid down by the Supreme Court in the cases (supra) to the facts of the case on hand and as observed hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the victim. It is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the victims can be sustained.

34. The view taken by the learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record and as such, we are of the opinion that in the present case, the only view possible was the one taken by the learned trial Court.

35. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed Chandra any legal or factual error in arriving at the finding with regard to the guilt of the appellant/convict.

36. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed.

37. The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment and order dated 19.10.2023.

38. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.