1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 338 of 2021 1 - Yogesh Badge @ Kalu S/o Shri Anil Badge, Aged About 20 Years R/o Village Rajeev Nagar, Ward No. 10, Dongargarh, Police Station Dongargarh, District Rajnandgaon Chhattisgarh. ... Appellant Versus 1 - State of Chhattisgarh Through Station House Officer, Police of Police Station Durg, District Durg Chhattisgarh. ... Respondent(s) For Appellant : Shri Rahil Arun Kochar, Advocate. For Respondent : Shri Malay Jain, Panel Lawyer. For Objector : Shri Praveen Shrivastava, Advocate. Hon’ble Shri Ramesh Sinha, CJ & Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 24.02. 202 5 P er, Ramesh Sinha, CJ. 1. On 04.10.2023 at the time of hearing of the application for suspension of sentence and grant of bail, the victim and her mother appeared before this court in person and did not raise objection in granting bail to the appellant. However, the application for suspension of sentence and grant of bail was not pressed. Today also when the matter is taken up for hearing, learned counsel for the objector/victim have not raised any objection. Therefore, with the consent of the parties, the matter is heard finally. Digitally signed by INDRAJEET SAHU Date: 2025.03.04 13:33:50 +0530 2 2. Challenge in this appeal is the judgment of conviction and order of sentence dated 27.02.2021 passed by learned Additional Sessions Judge, IIIrd Fast Track Special Court (Protection of Children from Sexual Offences Act), Durg, District Durg, in Special Sessions Case No. 79/2019, whereby the appellant has been convicted and sentenced as under:- Conviction Sentence Under Section 363 of IPC R.I. for 3 years with fine of Rs. 100/-, in default of payment of fine, additional R.I. for 10 days. Under Section 366 IPC R.I. for 5 years with fine of Rs. 200/-, in default of payment of fine, additional R.I. for 20 days. Under Section 376(2)(n) IPC R.I. for 10 years with fine of Rs. 300/-, in default of payment of fine, additional R.I. for 30 days. Under Section 376(3) IPC R.I. for 20 years with fine of Rs. 500/-, in default of payment of fine, additional R.I. for 50 days. All the sentences are directed to run concurrently. 3. Brief facts of the case are that, on 21.04.2019, PW-12, the maternal uncle of victim lodged a missing report that her minor niece is missing since 15.04.2019 and her whereabouts could not be traced out despite her search in nearby places and relatives house. The police recorded Rojnamcha Ex. P/16 and FIR Ex. P/15 was registered against the unknown person for the offence of Section 363 IPC. During investigation, the victim was recovered on 03.05.2019 from the possession of appellant and recovery Panchnama Ex.P/29 was prepared in presence of witnesses. The victim was sent for her medical examination to the District Hospital, Durg where PW-14 Dr. Smita examined her and gave report Ex.P/35. While examining the victim, the doctor did not notice any external injuries over her body and opined 3 that no definite opinion can be given about recent intercourse. Two slides of her vaginal swab were prepared, sealed and handed over to the police for chemical examination. The underwear of the victim was seized vide Ex. P/5. With respect to age and date of birth of the victim, the police seized Progress Report Card of Class-II of victim vide seizure memo Ex.P/6. School register was also seized from Sun Shine Higher Secondary School, Durg vide seizure memo Ex.P/12 and after retaining its attested true copy, the original register was returned back to the school. Spot map Ex. P/2 was prepared by the police whereas P/3 by the Patwari. The appellant was arrested on 03.05.2019 and he too was sent for his medical examination to District Hospital, Durg where PW-13 Dr. R.K. Nayak examined him found him capable to perform sexual intercourse. One Pleasure Scooty was seized from appellant vide seizure memo Ex.P/9. His underwear was also seized vide sizure memo Ex.P/10. The vaginal slides of the victim, her underwear as well underwear of appellant were sent for chemical examination to State FSL, Raipur from where report Ex. P/31 was received, according to which semen and sperms were found on the vaginal slide and underwear of victim, however, no semen and sperms were found in the underwear of appellant. The identification Panchnama of victim has been prepared vide Ex.P/32. Recovery Panchnama of appellant was also prepared vide Ex.P/35. 4. Statement of witnesses under Section 161 of Cr.P.C. and statement of the victim under Section 164 of Cr.P.C. have been recorded and after completion of usual investigation, charge-sheet was filed against the appellant for the offence under Sections 363, 366, 376 and 493 of IPC and Section 4 and 6(l) of POCSO Act before the learned Trial Court. 4 5. The learned trial court has framed charge under Sections 363, 366 and 376 IPC and Section 5(l)/6 of POCSO Act on 02.07.2019. After recording evidence of the parties, the charge framed against the appellant was amended on 27.02.2021 and charge of Section 376 was modified in Section 376(3) and 376(2)(n) IPC. The opportunity to examine/cross examine and reexamine/re-crossexamine to the witnesses have been provided to the prosecution as well as appellant with respect to amended charge, but they did not avail their remedy and stated that they did not want to reexamine/re-crossexamine the witnesses. 6. In order to bring home the charge, the prosecution has examined as many as 14 witnesses. The statement under section 313 of CrPC of the appellant was also recorded in which he denied the material appears against him, pleaded innocence and submitted that he has been falsely implicated in the offence. 7. After appreciation of the oral as well as the documentary evidence led by the prosecution, the trial court has convicted and sentenced him as mentioned in the earlier part of this appeal. Hence this appeal. 8. Learned counsel for the appellant would argue that the appellant is innocent and has been falsely implicated in the offence. The prosecution has failed to prove their case beyond reasonable doubt. There is no cogent and legally admissible evidence available on the record to show that the victim was minor and less than 18 years of age on the date of the incident. The school record has not been proved by the prosecution in accordance with law. The basis on which the entries have been made in the school record have not been produced. No other documents like the Kotwari register, birth certificate or ossification 5 test report have been filed by the prosecution to determine her age, and therefore the finding recorded by the trial court that on the date of the incident the victim was minor is erroneous. He would further argue that the victim was having love affair with the appellant and was a consenting party and had not raised any alarm while going with the appellant or stayed with him for a considerable period. While going with him, she has not raised any alarm and did not make any complaint to anyone. She has not protested at the time of alleged offence of making forceful sexual intercourse. No injuries have been found on the body of the victim. When the victim was found to be major and she herself eloped with the appellant and engaged in making physical relation with him without any objection or protect, no offence either of kidnapping or rape, is made out against the appellant and thus he is entitled for acquittal. 9. On the other hand, the learned counsel for the state opposes the arguments advanced by the learned counsel for the appellant and submitted that the victim was minor and below 18 years of age at the time of incident which is proved by the school record. School record is admissible piece of evidence which has been proved by PW-8, Smt. Namrata Nagar, who is the Head mistress of the School and from the school record, the victim was found to be minor on the date in incident and her consent is immaterial. The evidence of victim need not be required for any corroboration and on the sole testimony of the victim, the conviction can be made. Therefore, there is no illegality or infirmity in the findings of the learned trial court. Although no injuries were found on her body, however, that itself is not sufficient to disbelieve the prosecution’s case as in every case there is no necessity that victim 6 must have received injuries. It depends upon facts of each case. Therefore, the impugned judgment of conviction and sentence needs no interference. 10. We have heard the learned counsel for the parties and perused the records carefully. 11. The first and foremost question arises for consideration would be the age of victim as to whether she was minor on the date of incident or not? 12. The prosecution has mainly relied upon the school record Ex.P/11-C which is sought to be proved by P.W-8, who is Head Mistress of the School. PW-8, have stated in her evidence that the police has seized the school register with respect to date of birth of victim and she brought the original register with her, according to which the date of birth of victim is 17.01.2005. Victim got admitted in the school in the year, 2010. In cross examination, she admits that in the said school register Ex.P/11, the admission of the victim in K.G. II was endorsed. The entries made in school register is not in her own handwriting. Without verifying the records, she could not tell as to whether her birth certificate was produced in the school at the time of her admission or not. She could not tell as to whether the parents of victim disclosed her date of birth or not. As per evidence of this witness, she is not the author of school register, nor any document has been produced on the basis of which the date of birth of victim has been recorded in the school register. The said school register is of K.G.II whereas there is no other document annexed in the case by the prosecution of her K.G.I. The progress report card Article-A/1 is also of Class-II. Except these documents there is no other documents produced by the prosecution. 7 The said school record is of private school and its author have not been examined. 13. In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, which is in respect of admissibility of school records of a person, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the victim in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined. 14. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under: "40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 8 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 9 15. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 10 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015." 16. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under : "14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (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. Only in the absence of either (i), (ii) 11 and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year." 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference." 17. Reverting to the facts of the present case, the victim PW-2 have stated that her date of birth is 17.01.2006. She also stated in her chief examination that she studied in the said school up to Class-IVth and her progress report card is Article-A in which her date of birth is recorded as 17.01.2005. When the leading question was asked by the prosecution, she admits that at the time of incident she was minor. In cross examination, she states that she has not submitted her birth certificate to the police. She further admits that her date of birth was informed to her by her maternal grandmother which is 17.01.2005 and due to mistake she disclosed her date of birth as 17.01.2006. She states that she did not know date of birth of her step brother and 12 sisters. She did not know as to whether her date of birth was recorded in school by reducing her actual age. 18. PW-1 is the maternal grandmother of victim. She has stated in her evidence that the age of victim was 14 years at the time of incident. She was residing with her. The police has seized the higher secondary school mark sheet of the victim as Article-A/1. She admits that father of victim died 12-13 years back and her mother got remarried after death of her husband. She admits that real mother of victim is having two sons from her subsequent husband. She did not know the date of birth of all her children. 19. PW-11, is the mother of victim. She states that date of birth of victim is 17.02.2005. In cross examination, she states that victim is her daughter from her first Husband. 20. PW-12 is the maternal uncle of the victim. He has not stated anything about the age of victim. 21. From all these evidences, the prosecution could not establish the exact date of birth of the victim by leading cogent and clinching evidence. The victim have initially stated that her date of birth is 17.01.2006 but in cross examination she states that her date of birth is 17.01.2005 which was disclosed to her by her maternal grandmother. Her maternal grandmother PW-1 did not disclose her date of birth. The mother of victim have disclosed the date of birth of victim to be 17.02.2005. Her maternal uncle did not disclose either her date of birth or age. There is difference in the statement of all the witnesses. Therefore, in such a situation where the basis on which the date of birth of victim was recorded in school register have not been produced; the author of the school register have not been examined; the parents of victim were 13 unable to disclose the actual date of birth of victim, it cannot be said that victim was minor and less than 18 years of age on the date of incident. 22. So far as the allegation of kidnapping and rape is concerned, P.W.-2 the victim, have stated in her evidence that after death of her father, her mother performed second marriage and she is residing at Dongargarh. One neighbor of her mother is her friend as she used to visit Dongargarh. Her mother gave appellant’s mobile number to her. The appellant gifted her a mobile phone through which they regularly made conversation with each other. On 29.12.2018 the appellant called her to Dongargarh on his birthday and thereafter she along with appellant had gone to Dongargarh Temple. In the month of April, 2019 at the time of Navratra, when she was in the shop of her mother, she called the appellant near the place of feast (Bhandara) and when the appellant came there, both of them made a plan that they will not reside at Dongargarh and planned to go somewhere else. On 13.04.2019 there was quarrel between her and her brother and then her mother left her to her maternal aunt’s house. On 15.04.2019 she came to Railway Station Durg by Auto where she met with appellant and thereafter they went to Bhilai by Scooty of the appellant. They took a house on rent and started residing there. She stayed with the appellant for about 19 days in a rented house at Bhilai. The appellant performed marriage with her by applying vermilion on her head and thereafter they made physical relation with each other. During her stay, the appellant made physical relation with her for 8-10 times and she has not objected for the same. When she thought about her maternal grandmother, she made a telephonic call to her and informed her not to 14 worry about her and she will come back. By that time, her maternal grandmother had already lodged missing report and thereby they left the rented house of Bhilai and went to the house of appellant at Dongargarh from where the police recovered them. In cross examination, she admits that after applying vermilion on her head, the appellant has made physical relation with her and she has not raised any objection. She further admits that her friendship with the appellant was in knowledge of her family members and both the families were having goods relations. She did not know as to 5-7 days before the date of incident her mother had gone to the house of appellant for negotiation of their marriage. She admits that appellant has not made any pressure upon her to left her house and to come with him and also to make physical relation with him. 23. From the evidence of this witness, it is quite clear that the victim was in love affair with the appellant. She on her own will left her house, came to Durg and thereafter accompanied the appellant and went to Bhilai where she resided in a rented house along with appellant for about 19 days and made consensual physical relation and subsequently came back to Dongargarh from where she was recovered by the police. There is no evidence of the victim that at any point of time she resisted or protested to go with the appellant or refused from making physical relation with him. Rather, she herself on her own will eloped with him and engaged in making consensual physical relation with appellant without any protest which clearly shows her willingness and consent in eloping with the appellant and making physical relation consensually. 24. PW-1, the maternal grandmother of victim, have stated in her evidence that on 15.04.2019 the victim was missing and when her whereabouts 15 could not be traced out, she lodged a missing report. The mother of victim also inquired from the appellant’s house, but no information was obtained as they were not in knowledge of their whereabouts. After about 19 days the victim was recovered from the house of appellant. She admits in her cross examination that they are having cordial relationship with the parents of appellant. 25. PW-5, Mangal Singh, is the friend of appellant, who have stated that whenever he visits Dongargarh, he used to stay in the Ashram of the appellant. On 15.04.2019 the appellant called him at Supela Chowk and asked to help him in search of a rented house and thereafter he took them to the landlord and taken a house on rent. The appellant also asked to help him to engage him in any job. The victim made a telephonic call to her maternal grandmother and then her maternal grandmother asked her to to to her matrimonial house and thereafter they had gone to Dongargarh at appellant’s house. When he met with the victim for the first time, he saw vermilion on her head and she was wearing Mangalsutra. 26. PW-6, Rekha Umar Bais, is the landlord in whose house the appellant and victim resided at Bhilai for about 19 days. She have stated in her evidence that when the appellant came to her house, he disclosed that he is already married. 27. PW-11, the mother of the victim, have stated in her evidence that when the victim was missing, her maternal uncle lodged missing report. When she came to know that victim was missing, she raised suspicion upon the appellant because earlier also on 08.02.2019 he kidnapped her daughter and took her to Gondia (M.H.). On suspension she asked from the parents of the appellant about her whereabouts, but they were 16 also unable to trace their location. On 03.05.2019 the victim was recovered from the house of appellant at Dongargarh. In cross examination, she admits that she herself has not lodged any report even when she came to know about the incident. She further admits that she was well aware about love affair between appellant and victim. 28. PW-12 is the maternal uncle of the victim who lodged the missing report. Except the evidence of missing report, he has not disclosed anything about the incident. 29. All these evidences would clearly demonstrate that prosecution could not able to prove its case beyond reasonable doubt against the appellant. Further, the act of the victim dragged us to draw the conclusion that the victim was consenting party in eloping and making physical relation with appellant. The victim herself eloped with the appellant and stayed in a rented house at Bhilai for 19 days and after applying vermilion on the head of victim, they made physical relation in which the victim never objected. From the evidence of mother of the victim it appears that earlier also the appellant had taken the victim with him and both of them had gone to Gondia (M.H.). She was within knowledge that both of them were having love affair. Thus, it cannot be said that victim was kidnapped and subjected to rape by the appellant. 30. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon’ble Supreme Court has held that: - “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 circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 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 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 17 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 doubt, the part played by the accused could be regarded as facilitating the fulfilment 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”.” 31. Recently, the Hon’ble Supreme Court in case of Tilku @ Tilak Singh Vs. State of Uttarakhand has also relied upon the aforesaid judgment of S. Varadarajan (Supra) in its judgment dated 06.02.2025 passed in Criminal Appeal No.183 of 2014. 32. 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 levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 33. Considering the entire evidence available on record, the evidence with regard to age and conduct of the victim, we are of the opinion that the prosecution has failed to prove that victim was less than 18 years of age at the time of the incident. Further, she was a consenting party with the appellant in making physical relation with him. Therefore, in the 18 above facts and circumstances of the case, no any offence as alleged is made out against the appellant. 34. For the foregoing reasons, the appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 04.05.2019. He be released forthwith if not required in any other case. 35. Keeping in view the provisions of Section 481 of B.N.S.S. 2023, the appellant is directed to forthwith furnish a personal bond of the sum of Rs. 25,000/- with one reliable 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. 36. The trial court records along with a copy of this judgment be sent back to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice inder