Ravindra Vishwas @ Sushil vs State Of Chhattisgarh
- Court
- Chhattisgarh High Court
Page No.1 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
CGHC010294092016 2026:CGHC:46836-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Digitally
signed
by
SAIFAN
KHAN
SAIFAN
KHAN
Judgment Reserved on : 26.10.2026
Judgment Pronounced on : 05.11.2026
Judgment Uploaded (Full) on : 05.11.2026
[Arising out of a common judgment of conviction and order of sentence
dated 23.07.2016, passed in Spl. Cr. Case No.1146/2015 (State of
th
Chhattisgarh v. Asheesh Sachdev and 05 others) by the 7 Addl.
Sessions Judge (FTC), Raipur (CG)]
CRA No. 1132 of 2016
Gulshan Wadhwani S/o Late Shri Pradeep Wadhwani Aged About 23
Years R/o Gali No. 2, Telibandha, District Raipur, Chhattisgarh
--- Appellant
(On Bail)
Versus
State of Chhattisgarh Through The Police Station Ganj, District Raipur,
Chhattisgarh
--- Respondent
Cause-title taken from Case Information System (CIS)
------------------------------------------------------------------------------------
For Appellant : Mr. Deverashi Thakur, Advocate
For Respondent : Mr. Sumit Singh, Deputy Advocate General
------------------------------------------------------------------------------------
WITH
CRA No. 1148 of 2016
Asheesh Suchdev S/o Ghurmukh Suchdev Aged About 22 Years R/o
Talibhandha, Street No. 08, Police Station Talibandha, Raipur, District
Raipur, Chhattisgarh
--- Appellant
Page No.2 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
(On Bail)
Versus
State of Chhattisgarh, through District Magistrate Raipur,
Chhattisgarh.
--- Respondent
Cause-title taken from Case Information System (CIS)
------------------------------------------------------------------------------------
For Appellant : Mr. Maneesh Sharma, Advocate
For Respondent : Mr. Sumit Singh, Deputy Advocate General
-----------------------------------------------------------------------------------
WITH
CRA No. 1373 of 2016
1 - Shahina Begum W/o Raheem Khan @ Faheem Khan Aged About 32
Years R/o Santoshi Nagar, Chaurasia Colony, Police Station Tikrapara,
Raipur, District Raipur Chhattisgarh , Chhattisgarh
2 - Md. Raheem Raja @ Faheem Khan S/o Md. Salim Raza Aged About
34 Years R/o Santoshi Nagar, Chaurasia Colony, Police Station
Tikrapara, Raipur, District Raipur Chhattisgarh
--- Appellants
(On Bail)
Versus
State of Chhattisgarh Through District Magistrate Raipur Chhattisgarh
--- Respondent
Cause-title taken from Case Information System (CIS)
------------------------------------------------------------------------------------
For Appellants : Mr. Kartik Kathmia, Advocate on behalf of
Mr. Kshitij Sharma, Advocate
For Respondent : Mr. Sumit Singh, Deputy Advocate General
-----------------------------------------------------------------------------------
WITH
CRA No. 285 of 2017
Ravindra Vishwas @ Sushil S/o Sitanshu Vishwas, Aged About 29 Years
R/o Village Jaipul, Police Station Kharda, District 24, Uttar Pargna,
West Bental, Present R/o Chaurasia Colony, Santoshi Nagar, Police
Station Tikrapara, District Raipur, Chhattisgarh
--- Appellant
(On Bail)
Page No.3 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
Versus
State of Chhattisgarh Through Police Station Ganj, District Raipur,
Chhattisgarh
--- Respondent
Cause-title taken from Case Information System (CIS)
------------------------------------------------------------------------------------
For Appellant : Mr. Vimlesh Bajpai, Advocate
For Respondent : Mr. Sumit Singh, Deputy Advocate General
-----------------------------------------------------------------------------------
WITH
CRA No. 1196 of 2016
Santosh Kesarwani S/o Shri Sidar Singh Keserwani Aged About 53
Years Occupation- Manager Prince Lodge, Raigarh R/o In Front of
Nagarpalika Chowk, Sarangarh Civil and Revenue District, Raigarh,
Chhattisgarh
--- Appellant
(On Bail)
Versus
State of Chhattisgarh Through Police Station Ganj Raipur, Civil And
Revenue District Raipur, Chhattisgarh
--- Respondent
Cause-title taken from Case Information System (CIS)
------------------------------------------------------------------------------------
For Appellant : Mohd. Waquar Rizvi, Advocate
For Respondent : Mr. Sumit Singh, Deputy Advocate General
-----------------------------------------------------------------------------------
Division Bench
Hon'ble Mr. Justice Parth Prateem Sahu
Hon'ble Mrs. Justic e Sushma Sawant
CAV Judgment
Sushma Sawant, J
(1) Regard being had to the similitude of the questions of fact and law
involved and being arising out of a common impugned judgment
dated 23.07.2016, on the joint request of learned counsel for the
parties, all these appeals were clubbed together, heard together
Page No.4 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
and being disposed of by this common judgment. However, for
the sake of clarity, facts are taken from CRA-1132-2016 as a
leading case.
(2) Invoking criminal appellate jurisdiction of this Court enshrined
under Section 374(2) of CrPC, total 06 accused/appellants,
namely, Asheesh Sachdev (A-1), Gulshan Wadhwani (A-
2), Shahina Begum (A-3), Santosh Kesarwani (A-4),
Mohd. Raheem Raja @ Faheem Khan (A-5) and Ravindra
Vishwas @ Sushil (A-6) have preferred these 05 criminal
appeals calling in question the legality, validity and correctness
of a common impugned judgment of conviction and order of
sentence dated 23.07.2016 , passed in Spl. Cr. Case
No.1146/2015 (State of Chhattisgarh v. Asheesh Sachdev
th
and 05 others) by the 7 Addl. Sessions Judge (FTC), Raipur
(CG), whereby they have been convicted and sentenced as under:
As regards- Appellants/Accused- Asheesh Sachdev (A-1)
and Gulshan Wadhwani (A-2):
Conviction Sentence
U/s. 363 of IPC r/w
S. 34 of IPC
Rigorous imprisonment for 05 years with
fine of Rs.5,000/- each and, in default of
payment of fine, additional rigorous
imprisonment for 06 months each.
U/s. 342 of IPC r/w
S. 34 of IPC
Rigorous imprisonment for 01 year with
fine of Rs.500/- each and, in default of
payment of fine, additional rigorous
imprisonment for 03 months each.
U/s. 506 (Part-II) of
IPC r/w S. 34 of IPC
Rigorous imprisonment for 02 years with
fine of Rs.500/- each and, in default of
payment of fine, additional rigorous
imprisonment for 03 months each.
Page No.5 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
U/s. 376D of IPC Imprisonment for life (till natural death)
with fine of Rs.5,000/- each and, in default
of payment of fine, additional rigorous
imprisonment for 01 year each.
U/s. 06 of the
POCSO Act, 2012
Rigorous imprisonment for 10 year with
fine of Rs.500/- each and, in default of
payment of fine, additional rigorous
imprisonment for 06 months each.
[All the sentences are directed to run concurrently]
As regards- Appellants/Accused- Shahina Begum (A-3),
Mohd. Raheem Raja @ Faheem Khan (A-5) and Ravindra
Vishwas @ Sushil (A-6):
Conviction Sentence
U/s. 342 of IPC r/w
S. 34 of IPC
Rigorous imprisonment for 01 year with
fine of Rs.500/- each and, in default of
payment of fine, additional rigorous
imprisonment for 03 months each.
U/s. 370A(1) of IPC
r/w S. 34 of IPC
Rigorous imprisonment for 07 years with
fine of Rs.5,000/- each and, in default of
payment of fine, additional rigorous
imprisonment for 06 months each.
U/s. 372 of IPC r/w
S. 34 of IPC
Rigorous imprisonment for 07 years with
fine of Rs.5,000/- each and, in default of
payment of fine, additional rigorous
imprisonment for 06 months each.
U/s. 06 r/w S. 17 of
the POCSO Act,
2012
Rigorous imprisonment for 10 year with
fine of Rs.5,000/- each and, in default of
payment of fine, additional rigorous
imprisonment for 06 months each.
[All the sentences are directed to run concurrently]
As regards- Appellant/Accused- Santosh Kesarwani (A-
4):
Conviction Sentence
U/s. 342 of IPC r/w
S. 34 of IPC
Rigorous imprisonment for 01 year with
fine of Rs.500/- and, in default of payment
of fine, additional rigorous imprisonment
for 03 months.
U/s. 370A(1) of IPC
r/w S. 34 of IPC
Rigorous imprisonment for 07 years with
fine of Rs.5,000/- and, in default of
Page No.6 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
payment of fine, additional rigorous
imprisonment for 06 months.
U/s. 373 of IPC Rigorous imprisonment for 07 years with
fine of Rs.50,000/- each and, in default of
payment of fine, additional rigorous
imprisonment for 02 years.
U/s. 06 r/w S. 17 of
the POCSO Act,
2012
Rigorous imprisonment for 10 year with
fine of Rs.5,000/- and, in default of
payment of fine, additional rigorous
imprisonment for 06 months.
[All the sentences are directed to run concurrently]
-:Factual Matrix:-
-:Case of the prosecution:-
Note- Since the present case relates to an offence under the POCSO
Act, in order to protect the identity of the victim, she is being referred
to as Victim (P.W.-1) , her mother as VM (P.W.-2) , and her father
as VF (P.W.-3) throughout this judgment.
(3) The case of the prosecution, in brief, is that on 26.07.2015, when
the minor victim (P.W.-1) suddenly went missing, her mother,
VM(P.W.-2) lodged a report at Police Station Mungeli and, on
the basis of the said report, the police registered Missing Person
Report No. 15/15 and commenced an inquiry. Thereafter, on
27.07.2015, upon suspicion that the minor victim had been
abducted, Crime No. 130/15 was registered under Section
363 of the IPC, and wheels of investigation started running.
(4) During the course of investigation, the minor victim was traced in
the course of the search for her. After her recovery on
01.08.2015 , she was interrogated and her statement was
recorded. The police investigation revealed that, as the minor
Page No.7 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
victim did not perform daily household work, her mother had
scolded her. Consequently, at about 2:00 p.m. on 26.07.2015, she
left without informing anyone and went to the house of her
maternal aunt, Mowa. After staying there for some time, she left
in the evening to return to her home at Paras Nagar. On the way,
she stopped near a garden for a short while and, at that juncture,
at about 9:00–10:00 p.m. 02 boys, who disclosed their names as
Asheesh and Gulshan (the accused no.1 and 2) , and who
stated that they resided in Telibandha, approached her on a
motorcycle and asked her: “Where are you going? We will
drop you.” On their insistence, the minor victim sat on the
motorcycle with them. Instead of taking her to her house, the two
accused persons began taking her elsewhere. When she asked
where they were taking her, they threatened her with dire
consequences and threatened to kill her if she did not remain
silent.
(5) It is also the case of the prosecution that accused Asheesh and
Gulshan (accused no.1 and 2) took the minor victim to Hotel
Ranjit, situated on Station Road, Raipur, and seated her at the
reception counter. They represented to the hotel manager that she
was their sister and, on that pretext, obtained Room No. 109,
where they checked her in. Thereafter, both accused persons, by
inducing and deceiving the minor victim, committed rape upon
her alternately. It is also the case of the prosecution that the two
accused persons kept the minor victim at the said hotel from the
Page No.8 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
morning of 27.07.2015 until the morning of 28.07.2015 and that
both of them continued to commit rape upon her during that
period. Thereafter, on 28.07.2015, accused Asheesh (accused
no.1) , on the pretext of arranging better employment for the
minor victim elsewhere, took her to the house of accused
Shahina Khan(accused no.3) , who was residing at Santoshi
Nagar, Tikrapara, and who was allegedly engaged in prostitution.
(6) The prosecution case further alleges that accused Shahina
Begum (accused no.3) , after keeping the minor victim at her
house for approximately three to four hours, took her, along with
her husband Md.Raheem Raza (accused no.5) and accused
Ravindra Vishwas (accused no.6) , in a white-coloured car to
Sarangarh, District Raigarh. They handed the minor victim over
to Santosh Kesharwani (accused no.4) , the operator of a
Prince lodge, and left her there. Accused Shahina and Ravindra
Vishwas received money from the lodge operator in consideration
of handing over the minor victim. During this period, accused
Santosh Kesharwani, the operator of Prince Lodge, kept the
minor victim in Room No. 6 of the lodge for two days and, after
procuring money from other persons, subjected her to rape and
caused her to be sexually exploited by others. Thereafter, on
31.07.2015, accused Santosh Kesharwani purchased a ticket to
Raipur and made the minor victim board a bus. When she
reached Raipur on 01.08.2015, her relative/brother saw her and
took her to his house.
Page No.9 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
(7) Upon the police receiving complete information regarding the
incident from the minor victim, the offences under Sections
376, 372, 342, 506 and 34 of the Indian Penal Code were
added to the case, and the investigation proceeded accordingly.
(8) During the investigation, the police examined the manager of
Hotel Ranjit and recorded his statement. Upon obtaining the
mobile telephone numbers of accused Asheesh and Gulshan, the
police arrested them, interrogated them, and subsequently
arrested the other accused persons. Further, the police recorded
the memorandum statements of the accused persons and
recovered their mobile phones. With the consent of the minor
victim’s parents, the victim was subjected to a medical
examination, including a genital examination. Her statement was
also recorded before the competent Judicial Magistrate under
Section 164 of the Code of Criminal Procedure, 1973. The relevant
hotel and lodge registers were seized, and a spot map was
prepared. The victim’s birth certificate Article-B was seized to
establish her age. Statements of witnesses were recorded, and
accused Ashish and Gulshan were also subjected to medical
examination. The involvement of the other persons allegedly
connected with the offence, including the driver of the car, was
investigated. However, as the investigation did not yield sufficient
material against them, the investigation was completed against
the present accused persons, and incorporating the charges under
the relevant provisions of the POCSO Act,the charge-sheet was
Page No.10 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
filed before the competent Court for trial.
(9) Thereafter, following charges were framed against the accused
appellants as under:
A. Against accused Asheesh Sachdev (A-1) and Gulshan (A-2):
Sections 363/34, 342/34, 506 Part II/34 & 376D {wrongly
mentioned 376(d)} of the Indian Penal Code as also under Section
6 of the Protection of Children from Sexual Offences Act, 2012
(POCSO Act).
B. Against accused Raheem Khan alias Fahim Khan (A-5),
Ravindra Vishwas alias Sushil (A-6), and Shahina Begum (A-3):
Section 342/34, 370A(1)/34, 372/34 of IPC and under Section
6/17 of the POCSO Act, 2012.
C. Against accused Santosh Kesharwani (A-4): Section 342/34,
370A(1)/34, & 373 of IPC and also under Section 6/17 of the
POCSO Act, 2012
(10) Upon the charges being read over and explained to the accused
persons, they denied the charges, pleaded not guilty, and claimed
to be tried and during their examination under Section 313 of the
Code of Criminal Procedure, 1973, the accused persons asserted
their innocence and stated that they wished to adduce no
evidence in their defence.
-:Proceedings before the trial Court:-
(11) The prosecution in order to prove its case examined as many as 10
witnesses vide PW-01 to PW-10 and exhibited 49 documents
Page No.11 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
vide Ex.P/01 to Ex.P/49 apart from Article-A & B-C , whereas
the appellants/accused in support of their defence neither
examined any witness nor exhibited any document.
(12) The learned trial Court after appreciating the oral and
documentary evidence available on record, proceeded to convict
and sentenced the accused/appellants as mentioned in the
opening Paragraph No.02 of this judgment, against which these
05 appeals have been preferred by the appellants-accused
questioning the impugned judgment of conviction and order of
sentence.
-:Proceedings before the Appellate Court:-
(13) We have heard learned counsel for the parties, considered their
rival submissions noted hereinbelow, and perused the record with
utmost circumspection.
-:Submissions on Behalf of the Accused/Appellants:-
(14) Asheesh Sachdev (A-1) in CRA-1148-2016 - Mr. Maneesh
Sharma, learned counsel appearing for accused/appellant would
submit that the prosecution has failed to prove that the victim was
below 18 years of age at the relevant time. It is further argued that
the FIR was lodged against unknown persons and no test
identification parade was conducted to establish the identity of
the appellant. Moreover, the prosecution witnesses made
materially contradictory statements in their examination-in-chief
and cross-examination, rendering their testimony unreliable.
Page No.12 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
Learned counsel, therefore, submits that the conviction is based
on improper appreciation of evidence and is liable to be set aside.
(15) Gulshan Wadhwani (A-2) in CRA-1132-2016 - Mr.
Deverashi Thakur, learned counsel appearing for
accused/appellant- would submit that ,the report was lodged
against unknown persons and that no test identification parade
was conducted to establish the identity of the accused. It is
further argued that the prosecution has failed to establish that the
victim was below 18 years of age at the relevant time. The alleged
recovery of victim , having been made from an open bus stand
accessible to the public, does not, by itself, establish the accused’s
involvement in the offence. It is also contended that the testimony
of the victim is inconsistent, as their statements in examination-
in-chief are at variance with those made in cross-examination,
thereby rendering the prosecution case unreliable.
(16) Furthermore, the medical evidence does not corroborate the
prosecution’s case. In these circumstances, learned counsel
submits that the prosecution has failed to prove the charge
against the accused Gulshan Wadhwani beyond reasonable doubt
and that the conviction recorded by the learned Trial Court is
unsustainable in law.
(17) Shahina Baigum (A-3) and Mohd. Raheem Raja @
Faheem Khan (A-5) in CRA-1373-2016- Mr. Kartik Kathmia,
learned counsel appearing for accused/appellants- would submit
Page No.13 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
that,there is no evidence on record connecting them with the
alleged offence. Although mobile phones were seized from them,
no SDR or CDR has been collected or produced to establish their
involvement in the alleged crime. It is argued that the mere
seizure of mobile phones, in the absence of any other
incriminating evidence, cannot form the basis for recording their
conviction. Further, no neighbour or other independent witness
was examined to corroborate the prosecution's case. Learned
counsel, therefore, submits that the conviction of
accused/appellants Nos. 3 and 5 has been recorded without any
legally admissible evidence or sufficient basis and is, therefore,
unsustainable in law.
(18) Santosh Kesarwani (A-4) in CRA-1196-2016 - Mohd.
Waquar Rizvi, learned counsel appearing for accused/appellant-
would submits that, apart from the memorandum of co-accused
No. 3 Shaheen Begum , no incriminating evidence has been
collected or brought on record against him. It is argued that the
memorandum statement of the co-accused is not admissible in
evidence against the appellant. Therefore, in the absence of any
legally admissible evidence connecting the appellant with the
alleged offence, the learned Trial Court has erred in recording his
conviction, which is unsustainable in law.
(19) Ravindra Vishwas @ Sushil (A-6) in CRA-285-2017 - Mr.
Vimlesh Bajpai, learned counsel appearing for accused/appellant-
would submit that,apart from the memorandum of the co-
Page No.14 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
accused no.-3 Shaheen Begum, there is no other evidence
available on record to connect the accused with the alleged
offence. It is further contended that the statement contained in
the memorandum, in the form in which it has been recorded, is
not admissible in evidence. Therefore, the learned Trial Court has
committed an error in convicting the accused in the absence of
legally admissible evidence to establish the charge against him.
-:Submissions on Behalf of the State/Prosecution:-
(20) Per-contra , Mr. Sumit Singh, learned Dy Advocate General
appearing for the respondent-State would submit that the
prosecution has been able to prove the offences beyond
reasonable doubt by leading evidence of clinching nature. It is
further submitted on behalf of the respondent-State that in view
of statement of the victim, wherein she has clearly narrated the
incident and implicated appellants herein to be the author of the
crime in question coupled with other evidence available on
record, the trial Court has rightly convicted the appellants for the
offences mentioned herein-above. Hence, all the appeals are
liable to be dismissed.
-:Analysis and findings of the Appellate Court: -
Age of the victim (PW-01) :
(21) It would be appropriate to first consider the question as to
whether the prosecution has proved beyond reasonable
doubt that the victim was below 18 years of age on the
Page No.15 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
date of the alleged incident? .
(22) In this regard, the statements of the Victim (P.W.-1) , her
mother VM(P.W.-2) and her father VF(P.W.-3) are material.
The father of the victim has not stated anything regarding her
age. Her mother has stated that the victim was 17 years old;
however, she has not disclosed her date of birth. The victim , on
the other hand, has stated her date of birth as 12-08-2000.
(23) In support of the alleged date of birth of the victim, the
prosecution has produced a birth certificate as Article B , issued
by the Department of Planning, Economics and Statistics,
Government of Chhattisgarh. However, the said certificate was
issued approximately six years after the alleged date of
birth . The document is silent as to the basis on which the date of
birth was recorded and the source from which such information
was obtained. No record from the hospital where the victim was
allegedly born has been produced to corroborate the date of birth
mentioned therein.
(24) Further, neither has the author of Article B been examined
before the Court, nor has any evidence been adduced from the
concerned office to establish its issuance and authenticity.
Although it has also emerged from the evidence that the victim
attended school, no relevant record regarding her date of birth
has been obtained from the school concerned.
(25) In this regard, the law laid down by the Hon'ble Supreme Court in
Page No.16 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
P. Yuvaprakash v. State Rep. by Inspector of Police,
2023 SCC OnLine SC 846 , decided on 18.07.2023, is
relevant. The Supreme Court held that the determination of the
age of a victim in proceedings under the POCSO Act must be
undertaken in accordance with the procedure prescribed under
Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 .
(26) The statutory provision prescribes a sequence of documentary
evidence, beginning with the date-of-birth certificate issued by
the school or the matriculation or equivalent certificate issued by
the concerned examination board, followed, in the absence
thereof, by a birth certificate issued by a corporation, municipal
authority or panchayat. Only in the absence of the prescribed
documents is age to be determined by an ossification test or
another prescribed medical age-determination test. The Court
further held that a school transfer certificate or an extract from an
admission register cannot, by itself, be treated as a document
falling within the category specified under Section 94(2)(i), and
reiterated that the burden of establishing the victim's age rests
upon the prosecution.
(27) In the light of the aforesaid legal position, it was incumbent upon
the prosecution to establish the age of the victim by legally
admissible and reliable evidence in accordance with the
prescribed procedure. In the present case, despite the fact that the
victim had attended school, no date-of-birth certificate issued by
Page No.17 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
the school or matriculation or equivalent certificate issued by the
concerned examination board has been produced. In the absence
of such evidence, the prosecution has relied upon Article B ;
however, neither the source of the information recorded therein
nor the basis for recording the date of birth has been established.
No supporting hospital record or verification from the issuing
office has been brought on record.
(28) In these circumstances, the date of birth mentioned in Article B
cannot be accepted as conclusively established merely because the
document has been produced in evidence.
(29) Furthermore, the Victim (P.W.-1) stated in her examination-in-
chief that she had passed Class XI in the year 2015, which was
also the year of the alleged incident. This circumstance raises a
doubt regarding her claimed age, as the fact that she had
completed Class XI by that time prima facie appears inconsistent
with her being only 15 years old. In the absence of reliable
documentary evidence from the school or examination board
independently establishing her date of birth, her age, as claimed
by the prosecution, does not stand satisfactorily established.
(30) It is also significant that the mother of the victim (P.W.-2) ,
during her testimony, expressed ignorance as to who had
obtained or procured Article B . Thus, even the mother's
testimony does not establish the source or basis of the date of
birth recorded in the said certificate. Consequently, the oral
Page No.18 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
statements regarding the age of the victim, when considered
alongside Article B, whose underlying basis and authenticity have
not been established by reliable evidence, do not inspire sufficient
confidence to hold that the victim was below 18 years of age on
the date of the alleged incident.
(31) The prosecution has failed to establish this essential foundational
fact beyond reasonable doubt. Accordingly, above question
regarding age of victim is answered in the negative. The
prosecution has failed to prove beyond reasonable doubt that the
victim was a child within the meaning of the POCSO Act on the
date of the alleged incident.
Medical and Forensic Evidence :
(32) Upon examination of the medical and scientific evidence, it
appears that neither the victim nor her mother refused to undergo
the medical examination. Investigating Officer K.R. Sinha
(P.W.-9) has also stated that the victim was referred to the
doctor for medical examination vide Ex.P.-37 . Dr. Santoshi
Nagre (P.W.-10) examined the victim and prepared the MLC
report Ex.P.-37 . The said report records that no external injury
was found on the victim’s body, her hymen was old ruptured, and
no definite opinion regarding recent sexual intercourse could be
given. The MLC report Ex.P.-37 has been duly proved by the
testimony of Dr. Santoshi Nagre (P.W.-10) , which has
remained unrebutted.
Page No.19 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
(33) Further, Investigating Officer K.R. Sinha (P.W.-9) has stated
that the victim’s underwear, seized vide seizure memo Ex.P.-2 ,
was examined by Dr. Santoshi Nagre (P.W.-10) and was
thereafter sent for forensic chemical examination. The procedure
adopted for seizure and examination of the said article has not
been challenged by any of the accused. The FSL report, exhibited
as Ex.P.-49, is available on record and records that no human
spermatozoa were detected.
(34) Thus, neither the MLC report Ex.P.-37 nor the FSL report
Ex.P.-49 provides any evidence of recent sexual intercourse with
the victim. In these circumstances, it would be appropriate to
proceed to examine the other evidence available on record to
assess whether the prosecution has otherwise established its case
against the accused.
Testimony of the victim (PW-01) and other prosecution
witnesses : -
(35) Leaving aside the evidence relating to the age of the victim,
medical evidence and forensic evidence, for a proper and effective
appreciation of the prosecution evidence, it is necessary to
examine the sequence of events as alleged by the prosecution and
the manner in which the respective accused persons are alleged to
have become involved in the occurrence. Accordingly, the
prosecution case is being marshalled chronologically, indicating
the sequence of events, the involvement attributed to each
accused, and the relevant witnesses through whom the respective
Page No.20 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
events and allegations are sought to be established, as under:
S. No. Sequence of Events Accused
Involved
1. On 26-07-2015 the victim went
-
missing from her home without
informing anyone. In this
regard, a missing person report
No. 15/2015 was lodged at
Police Station -Ganj ,Raipur ,
and a crime was registered
under Section 363 of the IPC
vide Crime No. 130/2015 .
2. While returning home at night,
Accused No.-1
the victim met two boys at the
Asheesh Sachdev
Mowa Bazar , Raipur . They
offered to take her home but,
Accused No.-2
instead, took her on a
Gulshan
motorcycle to a Hotel “Ranjit” .
Wadhwani
They accommodated her in a
room and allegedly committed
rape upon her one after the
other.
3. On the following day, the two
Accused No.-3
boys took the victim from the
Shahina Begum
Hotel “Ranjit” to the house of a
Accused No.-5
woman in Santoshi Nagar
Mohamad.
Chaurasiya Colony, Raipur .
Raheem Raja
Thereafter, the woman, her
Accused No.-6
husband, and another person
Ravindra Vishwas
took the victim in a car to
Sarangarh on the pretext of
arranging employment for her
4. At Sarangarh, the victim was
Accused No.-4
left with a person who owned a
Santosh
hotel. He kept her in a room
Kesharwani
and, on the first day, sent three
persons into the room one after
another, and on the following
Page No.21 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
day, sent four persons into the
room. All seven persons
allegedly committed rape upon
her.
5. Thereafter, the person at
Sarangarh put the victim on a
bus to Raipur. Her brother met
her there and took her home.
Upon the incident coming to the
notice of the police, further
investigation was carried out in
accordance with law.
S. No. Sequence of Events Relevant Witnesses
1. First Event Victim (P.W.-1) ,VM
(P.W.-2) ,VF (P.W.-3) ,
I.O.K.R.Sinha (P.W.-9)
2. Second Event Victim (P.W.-1),VM (P.W.-
2) ,Hotel Ranjit Employee
Sameer Jagat (P.W.-
4) ,Receptionist -Yogendra
Bhoi (P.W.-5)
3. Third Event In the context of the
Sarangarh hotel,
Chintamani Kesharwani
(P.W.-7) , ASI. Manuulal
Yadav (P.W.-8) and
Patwwari Dhanurjai
Dadsena (P.W.-6)
4, Fourth Event Victim (P.W.-1)
5. Investigation Investigation Officer
K.R.Sinha (P.W.-9)
(36) The accused persons have not disputed their arrest, as reflected in
the arrest memos (Ex.P-18 to Ex.P-23). Further, accused No. 1
Asheesh Suchdev and accused No.2 Gulshan Wadhwani
Page No.22 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
have not challenged their respective medical examinations
proceeding Ex.P.-38 and Ex.P.-39. Therefore, detailed
discussion of these documents is not warranted. From these
documents, it can be accepted that all the accused persons were
arrested in connection with the present case and that accused No.
1 and 2 were sexually potent.
(37) Similarly, Victim (P.W.-1) had left her house on 26-07-2015
without informing anyone. VM (P.W.-2) and VF (P.W.-3)
searched for her, whereafter VM (P.W.-2) lodged a report at the
police station, on the basis of which a missing person report
No.15/2015 and a crime No. 130/2015 were registered. These
facts have also not been disputed by the accused persons.
Therefore, these aspects of the prosecution case may also be taken
to have been established.
(38) Similarly, the recovery panchnama, Ex.P-1, prepared at the
police station by Investigating Officer K.R. Sinha (P.W.-9), has
also remained unchallenged. On perusal of the said document, it
emerges that VM (P.W.-2) had brought the victim to the police
station on 01-08-2015, stating that she had found the victim. VM
(P.W.-2) has also made a similar statement before the Court. As
this proceeding has not been challenged, it may be accepted, to
that extent, that the victim had left her house on 26-07-2015
without informing anyone and returned to her home at Raipur on
01-08-2015. It is not a case where any known person had lured
her away from her house; rather, according to the prosecution,
Page No.23 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
during this period, she came across only unknown persons.
(39) To examine what happened to the victim during these six days,
the Victim (P.W.-1) herself is the material witness. VM (P.W.-
2) would fall within the category of a hearsay witness , as she
has stated only what the Victim (P.W.-1) had told her. The
Investigating Officer, K.R. Sinha (P.W.-9) , has also proceeded
with the investigation only after recording the victim’s statement
in the case diary.
(40) On perusal of the record, it emerges that after the recovery of the
victim, as reflected in Ex.P-1 , the Investigating Officer, K.R.
Sinha (P.W.-9), himself made inquiries from her and thereafter
produced her before the “Child Welfare Committee” , where
her statement, Ex.P-3 , was recorded on 02-08-2015 . On 07-08-
2015, the Magistrate recorded her statement, Ex.P-4 , under
Section 164 of the Cr.P.C. Thereafter, the course of investigation
proceeded on the basis of the information furnished by the victim
(41) On 02-08-2015, the Investigating Officer, K.R. Sinha (P.W.-9),
recorded the memorandum statement Ex.P-10 of Asheesh
Suchdev (accused No. 1) , wherein he stated that he, along
with his friend Gulshan Wadhwani (accused No. 2) , had
taken the victim from Pandri, Raipur, to Hotel “Ranjit”, kept her
in a room, and both of them committed rape upon her one after
another. Thereafter, they left her with Shahina Begum
(accused No. 3) , a woman engaged in prostitution.
Page No.24 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
(42) It is further stated that the memorandum statement Ex.P-11 of
Shahina Begum (accused No. 3) was also recorded vide,
wherein she disclosed that she, along with her husband
Md.Raheem Raza (accused No. 5) and another person,
Ravindar Vishwas (accused No. 6) , was also involved in
prostitution-related activities and that all three of them had left
the victim with Santosh Kesarwani (accused No. 4) at
Sarangarh .
(43) The Investigating Officer, K.R. Sinha (P.W.-9) , also stated that
he recorded the memorandum statement Ex.P-35 of
Kesarwani (accused No. 4), wherein he disclosed that
Shahina Begum (accused No. 3) , her husband and another
person had left the victim at his place. He further stated that he
had kept the victim in his “Prince” Hotel and sent three-four
customers to her, who had physical relations with her.
(44) The independent witness to the proceedings of recording the
memorandum of statements, namely Sameer (P.W.-4), has not
supported the prosecution version regarding the recording of
memorandum Ex.P.-10 and Ex.P.-11 . Further, the independent
witness to Ex.P.-35 has not been examined by the prosecution.
(45) Even otherwise, the statements attributed to the accused persons
in the aforesaid memorandum contain clear confessional
assertions regarding the commission of the offence, namely, that
“both of them took the victim along with them and
Page No.25 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
committed rape upon her” ; that “they were engaged in
the business of prostitution” ; and that “he had sent 3-4
customers, to the victim for establishing physical
relations” .
(46) Such confessional statements, being made to the police, are
inadmissible in evidence in view of Sections 25 and 26 of the
Indian Evidence Act, 1872 . Only that part of the information
which distinctly relates to the fact discovered pursuant thereto
can be admitted under Section 27 of the Act.
(47) Therefore, the aforesaid confessional portions of the
memorandum cannot be read in evidence against the accused
persons or relied upon to establish their guilt.
(48) As regards the recovery or discovery of any fact pursuant to the
aforesaid memorandum, it is evident from the record that, in
respect of Hotel “Ranjit”, Investigating Officer K.R. Sinha
(P.W.-9) got the map Ex.P.-33 prepared through the Patwari
and himself prepared Ex.P.-34 . Similarly, the map Ex.P.-27 ,
and the panchnama Ex.P.-28 of Hotel “Prince” situated at
Sarangarh, were prepared by Patwari Dhanurjai (P.W.-6) ,
whereas Ex.P.-30 was prepared by ASI Mannulal Yadav
(P.W.-8) .
(49) Since the location and existence of the aforesaid hotels have not
been disputed and none of these site plans was prepared at the
instance or on the identification of the victim, these documents do
Page No.26 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
not advance the prosecution case with regard to the commission
of the alleged offence, except to establish the location of the said
hotels at Raipur and Sarangarh, respectively.
(50) Pursuant to the memorandum Ex.P.-10 of accused Asheesh
Suchdev (Accused No. 1) , the Investigating Officer, K.R.
Sinha (P.W.-9) , through Yogendra Bhoi (P.W.-5) , Manager
of Hotel “Ranjit”, seized the guest register vide seizure memo
Ex.P.-12 and subsequently returned the same to him on
supurdnama vide Ex.P.-24 . According to the statement of
Yogendra Bhoi (P.W.-5) , during the relevant period of the
alleged incident, Room No. 109 of the hotel was booked from
8:00 a.m. on 27-07-2015 to 7:45 a.m. on 28-07-2015. Two boys
had arrived at the hotel at night along with a girl, they had their
meals together, and thereafter the boys left. The girl ordered
breakfast the following morning, had it and then left the hotel.
(51) As per the statement of Yogendra Bhoi (P.W.-5) and the
document seized from him, the room was booked in the name of
the victim's mother . It is quite natural that the victim herself
might have carried the said document to the hotel and furnished
it at the time of booking. Although the Investigating Officer, K.R.
Sinha (P.W.-9) , has shown in seizure memo Ex.P.-15 that the
document bearing the name of the victim's mother was seized
from Asheesh Suchdev (Accused No. 1) , the difference in the
ink used in the document itself indicates that the said document
appears to have been inserted subsequently. Consequently, the
Page No.27 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
alleged seizure becomes doubtful.
(52) Although the victim and the two boys who had accompanied her
were not put to identification before hotel Manager Yogendra
Bhoi (P.W.-5), nevertheless, for the sake of argument, it may be
assumed that the victim had visited the hotel along with two boys,
who could possibly be Accused No. 1 and 2 , and had stayed
there by furnishing the identity document of her mother. After
having their meals, both the boys left the hotel. According to this
witness, the girl did not make any complaint either to him or to
any waiter regarding the alleged incident that had taken place
there, whereas, on the following morning, she ordered breakfast
and consumed it (paragraph 15 of his cross-examination).
(53) Thereafter, on the basis of the remaining facts disclosed in the
memorandum of statement Ex.P-11 of Shahina Begum
(Accused No. 3) , recorded by Investigating Officer K.R. Sinha
(P.W.-9) , the seizure of mobile phones has been shown as having
been effected from Shahina Begum (Accused No. 3) vide
seizure memo Ex.P.-14 ; from Ravindra Vishwas (Accused
No. 6) vide Ex.P.-16 ; from Gulshan Wadhwa (Accused No.
2) vide Ex.P.-17 ; from Santosh Kesarwani (Accused No. 4)
vide Ex.P.-13 ; and from Asheesh Suchdev (Accused No. 1)
vide Ex.P.-15 . Even if these seizures are accepted, in the absence
of any SDR or CDR, no such inference can reasonably be drawn
that these persons were in contact with one another for carrying
on any illegal activity.
Page No.28 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
(54) The entire prosecution case rests upon the testimony of the
Victim (P.W.-1). It is pertinent to note that the victim had herself
left her house carrying her mother's identity document. It further
emerges from Para-23 of her cross-examination that she had also
booked the hotel room herself. Her age has not been established
to be below 18 years. As per the prosecution case, she was taken
from one place to another through public places, yet she neither
raised any alarm nor offered any resistance at any of these places,
nor did she make any complaint to anyone. Further, the medical
report also does not support the alleged sequence of events in its
entirety. In these circumstances, a careful and close scrutiny of
the testimony of the victim becomes necessary before placing
reliance upon it.
(55) Although, in the present case, the Victim has not been proved to
be below 18 years of age, nevertheless, since the case was
registered under the POCSO Act, it is necessary to examine the
applicability of the statutory presumption under Section 29 of the
Act. In this regard, the legal position is clear. In Deepak in JC v.
State Govt. of NCT of Delhi, 2026 SCC OnLine SC 1914 ,
the Hon’ble Supreme Court has held that the presumptions under
Sections 29 and 30 of the POCSO Act are rebuttable and cannot
be applied mechanically. The prosecution must first establish the
foundational facts necessary to attract such presumptions, and
the accused can rebut them on the standard of preponderance of
probabilities. The statutory presumption does not dispense with
Page No.29 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
the requirement of proper appreciation of the entire evidence or
the obligation to establish guilt beyond reasonable doubt.
However, the Trial Court, while appreciating the evidence,
appears to have overlooked these settled principles and recorded
the conviction merely on the basis of the examination-in-chief of
the victim and the facts stated in the charge-sheet, without
undertaking a proper evaluation of the entire evidence on record.
(56) It is particularly noteworthy in the present case that, although the
Victim supported the prosecution version in her examination-in-
chief before the Court, as well as in her statements before the
CWC and the Magistrate, she gave an entirely contrary version in
her cross-examination. She stated that she had indeed visited the
hotel, however, from the time she entered into the hotel room till
the third day, no one visited her in the said hotel room (Para-26
of her cross-examination). In Para-32 of her cross-examination,
she categorically stated that police personnel had tutored her, her
mother and her aunt by telling them a story and they were
instructed to narrate the said story in the same manner wherever
required. Further, in Para-33 & 34 of her cross-examination, she
reiterated that in accordance with what had been instructed to her
by the police personnel she had made statements before the CWC
and the Court.
(57) Thus, the victim has made inconsistent and mutually
contradictory statements at different stages, making it difficult to
ascertain as to when she was speaking the truth. In view of the
Page No.30 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
facts elicited in her cross-examination, the prosecution case
stands substantially demolished, and the victim does not satisfy
the test of a sterling witness.
(58) The Hon’ble Supreme Court, in Rai Sandeep alias Deepu v.
State (NCT of Delhi), (2012) 8 SCC 21 , has explained the test
of a “sterling witness” and held that such a witness must be of
high quality and calibre, whose testimony is unassailable,
consistent from the initial statement till the deposition before the
Court, free from material contradictions and capable of
withstanding rigorous cross-examination. The testimony must
also be consistent with the other supporting oral, documentary,
medical and scientific evidence. These principles have also been
reiterated in Santosh Prasad alias Santosh Kumar v. State
of Bihar, (2020) 3 SCC 443 .
(59) Applying the aforesaid principles to the facts of the present case,
upon a cumulative assessment of the testimony of the victim, it is
difficult to hold that the essential ingredients of the alleged
offences have been established solely on the basis of her
testimony, particularly that she was below 16 years of age, was
taken away from the lawful guardianship of her parents without
their consent, was wrongfully confined or subjected to sexual
exploitation or abuse, or that she was a child within the meaning
of the POCSO Act. Her materially contradictory statements at
different stages, particularly in cross-examination, coupled with
the absence of requisite corroboration from the other evidence on
Page No.31 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
record, render her testimony unreliable and do not satisfy the test
of a sterling witness laid down in Rai Sandeep alias Deepu
(supra), as followed in Santosh Prasad (supra). The Trial Court
has, therefore, committed an error in placing reliance upon such
testimony without properly appreciating its inherent
inconsistencies, and it would be unsafe to sustain the conviction
of the accused persons on that basis.
-:Final Conclusion :-
(60) In view of the aforesaid discussion and analysis, the impugned
judgment of conviction and order of sentence dated 23.07.2016,
passed by the learned trial Court, whereby: accused/appellants,
namely, Asheesh Sachdev (A-1), Gulshan Wadhwani (A-
2), have been convicted and sentenced for offences under
Sections 363/34, 342/34, 506 (Part-II)/34, 376D [wrongly
mentioned as 376(d)] of IPC as also under Section 06 of the
POCSO Act, 2012 ; accused/appellants, namely, Shahina
Begum (A-3), Mohd. Raheem Raja @ Faheem Khan (A-5)
and Ravindra Vishwas @ Sushil (A-6) have been convicted
and sentenced for offences under Sections 342/34,
370A(1)/34 [wrongly mentioned as 370(a)(1)/34] , 372/34 of
IPC as also under Section 6/17 of the POCSO Act, 2012 and
accused/appellant, namely, Santosh Kesarwani (A-4) has
been convicted and sentenced for the offences under Section
342/34, 370A(1)/34 [wrongly mentioned as 370(a)(1)/34] ,
373 of IPC as also under Section 6/17 of the POCSO Act,
Page No.32 of 32
IN
CRA-1132, CRA-1148-2016, CRA-1373-2016, CRA-285-2017 & CRA-1196-2016
2012 , are liable to be and are hereby set aside. All the
accused/appellants herein stands acquitted of the aforesaid
charges on the basis of benefit of doubt.
(61) Consequently, all 05 criminal appeals are allowed.
(62) Let a certified copy of this judgment along with the original
record be transmitted to the concerned Trial Court for
information and necessary action. If the appellants/accused are in
custody, the concerned Jail Superintendent shall be informed
accordingly for their release forthwith, if not required in any other
case and, if, the accused/appellants are on bail, their bail bonds
shall stand cancelled and the sureties be discharged.
Sd/- sd/-
(Parth Prateem Sahu) (Sushma Sawant)
Judge Judge
s@if