1 2025:CGHC:1114-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 875 of 2024 1 - Aman Kumar Banjare S/o Late Dayaram Banjare Aged About 18 Years R/o Village Kapsiyakala, Police Station - Kota, District : Bilaspur, Chhattisgarh ... appellant versus 1 - State Of Chhattisgarh Through Police Station - Kota, District : Bilaspur, Chhattisgarh ... Respondent For appellant : Mr. Ashok Kumar Swarnakar, Advocate For Respondent/ State: Mr. Hari Om Rai, P.L. For Objector : Mr. Bharat Lal Sahu, Advocate Division Bench: Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Ravindra Kumar Agrawal, Judge Order On Board Per Ravindra Kumar Agrawal, Judge 08.01.2025. 1. Vide order dated 21/06/2024, the notice issued to the father of the victim (PW/1) has been served upon him and he has been represented through his counsel and raised objection in granting bail to the 2 appellant. With the consent of the parties, the matter has been heard finally at motion stage. 2. The present criminal appeal has been filed under Section 374 (2) of Cr.P.C. against the impugned judgment of conviction and sentence dated 21/03/2024 passed by learned Additional Sessions Judge/ first (FTSC), Bilaspur (C.G.) in Special Sessions Case (POCSO Act) No. 165/2022 whereby the appellant has been convicted for the offence under Section 376 (2)(n) of IPC and Section 5(l)/6 of POCSO Act. Since the sentence under Section 5 (l)/6 of the POCSO Act for R.I. for 20 years with fine of Rs. 500, in default of payment of fine further R.I. for 15 days has been awarded to the appellant. No separate sentence has been awarded for the offence under Section 376 (2)(n) of IPC. 3. Brief facts of the case are that the father of the victim (PW/1) has lodged a written complaint (Ex-P/1) to the Police with the allegation that on 18/09/2022 at about 7.30 pm that his minor daughter had gone to answering the call of nature but had not returned back to his house. On being her search, she was found in the house of the appellant and taken back to his house. When they enquire from her, she disclosed that the appellant is making physical relation with her since three months back on the pretext of marriage and today also on being his call, she had gone to his house. On the basis of written complaint, the FIR (Ex-P/2) was registered against the appellant for the offence under Section 376 of IPC and section 4 and 6 of POCSO Act. The victim was sent for her medical examination to Community Health Centre, Kota where Dr. Kalpana Netam (PW/4) has medically examined and gave her medical report (Ex-P/13). During her medical examination, the 3 doctor has not noticed any external injuries on her body and opined that according to the findings, she had sexually contact. Two slides of her vaginal swab were prepared, sealed and handed over to the Police for FSL examination. The spot map (Ex-P/4) was prepared by the Police and Ex-P/6 was prepared by the Patwari. With respect to the age of the victim, the Police has seized, the school register from government primary school, Kapasiakala vide seizure memo (Ex-P/16) and after retaining the attested true copy of the school register (Ex-P/18c), the original register was returned back to the school. The appellant was arrested on 20/09/2022 and he too was sent for medical examination to Community Health Centre, Kota where (PW-15) Dr. N. K. Gupta has examined him and gave his report (Ex-P/21A). After his examination, the appellant was found to be capable to perform sexual intercourse. The slides of the vaginal swab of the victim were sent for chemical examination to FSL, Bilaspur, from where Report (Ex-P/29) was received and according to the FSL report, the semen and sperms were not found on the vaginal slides of the victim. The progress report card of the victim (Article-A) has also been seized by the Police. The statement under Section 161 of the witnesses have been recorded and Statement under Section 164 of the victim has also been recorded and after completion of the investigation, charge-sheet was filed against the appellant for the offences under Section 376 of IPC and Section 4 & 6 of POCSO Act, before the learned trial Court on 17/11/2022. 4. The learned trial Court has framed charge against the appellant for the offence under Section 376 (2) (n) of the IPC and Section 5(l)/6 of POCSO Act. The appellant denied the charge and claimed trial. 4 5. In order to prove the charge, the prosecution has examined as many as 16 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him and has submitted that he is innocent. 6. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in Para-1 of this judgment. Hence this appeal. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecutions’ witnesses which cannot be made basis for the conviction of the appellant. The prosecution has failed to prove the age of the victim that on the date of incident she was minor and less than 18 years of age. The school register produced by the prosecution has not been proved in accordance with law. The basis on which the entries have been made in the school register has not been proved. There is no Kotwari register or birth certificate or ossification test report to determine the actual age of the victim on the date of incident. The victim is a major girl having love affair with the appellant and she herself had gone to the house of the appellant on her own will without raising any objection or raising any alarm. She being a consenting party in making physical relation with the appellant, no offence of either kidnapping or rape is made out against him and therefore, the appellant is entitled for acquittal. 5 8. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. But for some minor omission and contradictions, the evidence of the prosecution witnesses are fully reliable and the conviction of the appellant can be based on it. From the school register as well as from the evidence of PW/8 who is the Asst. Teacher of the school, it has been proved that the victim was minor on the date of incident. She was subjected to sexual intercourse by the appellant which does amounts to offence of rape. Even if, no injuries have been found on the body of the victim that itself does not dilute the offence of rape because in every case it is not necessary that the victim must have receive injuries and it depends upon the facts of each case. The minor victim was found in the house of the appellant and she raised allegation of rape and therefore, the offence of kidnapping and rape has been proved by the evidence produced by the prosecution and his conviction and sentence is absolutely justified which is not required to be interfered with. 9. We have heard learned counsel for the parties and perused the record. 10. The first and foremost question arose for consideration in the case would be the age of of the victim that on the date of incident she was minor or not. 11.The prosecution has mainly relied upon the School register (Ex-P/18c) which is sought to be proved by the Asst. Teacher of the School (PW/8). He stated in his evidence that he is posted as Asst. Teacher at Govt. Primary School, Kapasiakala, since 2007 and presently working 6 as in-charge Head Master of the school. The Police has seized the school register with respect to the date of birth of the victim vide seizure memo (Ex-P/16). The school register is Ex-P/18 and its attested true copy is Ex-P/18c. As per the entries made in the school register, the date of birth of the victim is 06/08/2006. After retaining the attested true copy of the school register, the original register is returned back to the school. In cross-examination, he admitted that the entries in the school register with respect to the date of birth of the victim has not been made by him. He also admitted that the basis on which her date of birth is recorded in the school register, he did not know. He also admitted that who has got admitted her in the school and what documents were produced regarding her date of birth, he did not know. 12.The admissibility and evidentiary value of the school register has been considered by the Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, which is 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 7 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, 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 8 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." 13. 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 XXX 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 9 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. 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." 10 14. 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 thedescription 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) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. 11 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 fromthe 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." 15.Reverting to the facts of the present case since, it appears that PW/8 is neither the author of the school register nor the basis from which the entries have been made in the school register is produced. Without there being any sufficient evidence with respect to the authenticity of the date of birth of the victim merely on the basis of entries made in the school register, it will not be safe to determine the age of the victim. There is no other evidence like Kotwari register, birth certificate or ossification test report produced by the prosecution. 12 16.PW/2, the victim has stated in her evidence that she could not remember her date of birth. When she was asked the leading question, she stated that in the school record, her date of birth is recorded as 06/08/2006. In cross-examination, she stated that she is having two sisters and one brother. She did not know the date of birth of her sister and brother. She admitted that she disclosed her date of birth on assumption. 17.PW/1, the father of the victim, has stated in his evidence that the date of birth of the victim is 06/08/2006. She left her studies after class 10th. In cross-examination, he stated that he did not know the date of birth of his other children, he also admitted that his two other daughters are married. He further admitted that as per the school register, the victim was about 16 years of age on the date of incident. 18.PW/3 who is the mother of the victim has stated in her evidence that she did not know the date of birth of her daughter but she is less then 18 years of age. When the leading question was asked from her, she stated that she did not know as to whether the date of birth of her daughter is 06/08/2006 or not. In cross-examination, she stated that she did not know the date of birth of her children. Her father had gone to school for her admission. 19.PW/6, who is the elder mother of the victim has stated in her evidence that the victim is her niece who is aged about 14 years but she did not know her date of birth. 20.From the aforesaid evidence, it cannot be said that the prosecution has brought the sufficient evidence on record with respect to the age and date of birth of the victim. Except the school register, no progress report card of middle school and no documentary evidence have been 13 produced by the prosecution. The oral evidence led by the prosecution with respect to her date of birth is not sufficient to determine her age as there are material discrepancies in their evidence and the same are not the cogent and clinching in nature. In absence of any sufficient evidence with respect to the age or date of birth of the victim it would be difficult for this Court to hold that the victim was minor and less than 18 years of age on the date of incident. 21.So far as, the offence of rape is concerned, this Court again examined the evidence of the prosecution. 22.(PW/2) the victim has stated in her evidence that she knew the appellant since three months back. About three months back when she had gone to her field, the appellant dragged her towards his house and had made physical relation with her. She did the same act thrice and also made physical relation near her tube well. He again made a telephonic call and called her and when she had gone to the appellant, she again taken by the appellant, to his house and made physical relation with her. At that time, her parents came there but the appellant was not ready to left her by repeated saying that he will marry with her and thereafter she came back along with her parents. She stated in her evidence that the appellant repeatedly proposed her that he will marry with her. In cross examination, she stated that she did not disclose her parents that she used to meet the appellant in his field. She admitted that in the appellant’s house, his brother and sister in law are residing. She further admitted that when the appellant took her to his house, his family members were there. She denied the suggestion given by the appellant that she has not raised any alarm in the house of the appellant. In the facts that their frequent physical relation was going on 14 since last three months and on the day when the appellant took the victim to his house and in presence of his family members, the victim raised her alarm and then it is very suspicious that her alarm would not have been heard by any of her family members of the appellant or any other neighbours. The time of alleged offence is of the night time and had the victim been shouted, it would definitely been heard by the family members of the appellant or other neighbours who are residing in the adjoining house as reflected from the spot map (Ex-P/6). The victim herself had proceeded from her house up to the house of the appellant on being called by him. She has not raised any objection or produce or have not tried to come out from the clutches of the appellant when she was allegedly subjected to sexual intercourse by the appellant. No injuries have been found on the body of the victim while she was medically examined by the doctor. In the facts and circumstances of the case, the evidence of the victim (PW/2) cannot be considered to be sterling quality which is required for conviction of the appellant. 23.The Hon'ble Supreme Court in the case of Santosh Prasad alias Santosh Kumar v. State of Bihar reported in 2020 (3) SCC 443 has held in para 5.4.2. as under: 5.4.2. In Rai Sandeep", this Court had an occasion to consider who can be said to be a "sterling witness". In para 22, it is observed and held as under (SCC p. 29) "22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right 15 from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged" 24.PW/1, the father of the victim has stated in his evidence that on the date of incident when his daughter has not returned for considerable time after answering the call of nature, they started searching her. At that time his neighbour had informed that the appellant was dragging the victim towards his house and she was raising alarm to save her. When he along with his family member had gone to the house of the appellant and asked about the victim, then the door of the room of the appellant was got opened and found the victim inside the room. They took the victim along with them and at that time also the appellant tried to stop them by saying that he will marry with the victim. When the victim was being taken to his house, she informed about the incident which is continued since last three months and then they lodged the report. Although, she denied the suggestion that the victim was having 16 love affair with the appellant and he does not like their affair for that reason he lodged the report against the appellant but the entire conduct of the victim as reflected from the evidence of victim herself as well as her father that when they have got opened the door of the room of the appellant the victim was also there. It is not stated by her father that when they opened the door of the room the victim was in the position that she was trying to save herself or raising any alarm. In such a situation, it cannot be said that she was not a consenting party in view of the fact that there was frequent physical relation between them since last three months, without making any complaint to anyone. 25.PW/3, the mother of the victim has stated in her evidence that on the date of incident, when the victim was not returned to her house after answering the call of nature, they started searching her and then the neighbour had informed that the appellant was dragging the victim towards his house and she was protesting. When they had gone to the house and opened the door of the appellant’s room, they were found inside the room, they were sitting together and then they took the victim back to their house. The victim informed the entire incident and then they lodged the report. She admitted in her cross-examination that the house of the appellant is situated in the dense locality. She denied from the love affair between the appellant of the victim but she admitted that the victim has found on the lane. She further admitted that she disclosed about the incident on the basis of information disclosed by the victim. 26.PW/5 who is the villager who accompanied the parents of the victim at the time when they had gone to the house of the appellant to brought back the victim from his house. He stated in his evidence that when 17 they had gone to the house of the appellant, he persistent that he will marry with the victim. 27.PW/6 is the elder mother of the victim has stated in her evidence that on the date of incident when she came out from her house to close the door, she saw that the appellant was dragging the victim and she was objecting. After some time her parents had come to her house and asked about the victim then she disclosed them that the appellant has taken the victim towards his house. When they had gone to the house of the appellant, his mother has informed that she is inside the house and when they have got opened the door of the room of the appellant, she found that the victim was sitting inside the room. On being asked from her, she disclosed that the appellant took her there. On being asked to come back to her parents’ house, she was ready to come with them but the appellant tried to stop her by saying that he will marry with her. Thereafter, they took the victim back with them. Then the victim disclosed that they were having relation since three months. Thereafter, they have lodged the report against the appellant. In cross- examination, she admitted that when she saw the appellant and victim together going towards the house of the appellant, she has not tried to stop them and has not raised any alarm even she has not informed to any of the family members. She also admitted that in house of the appellant her mother, three brothers and two sisters in law are residing and his house is situated in the dense locality. From the aforesaid evidence, it is amply clear that the victim was not raising any alarm when she was being taken by the appellant towards his house and also at the time when her parents have got opened the door of the room of the appellant and found the victim sitting inside the room, there is no 18 evidence that in the room of the appellant was opened, the victim was struggling to save herself or trying to come out from the clutches of the appellant. From the nature of evidence and conduct of the victim, it can safely be hold that the victim was the consenting party in making consensual physical relation with the appellant as relationship was continued since last three months and she has not made any complaint to anyone. It has not been proved by the prosecution that victim was minor on the date of incident, therefore, considering that the victim was major on the date of incident, can engage in consensual physical relation with the appellant and therefore, no offence of either kidnapping or rape are made out against the appellant. 28.The version of the prosecutrix commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the prosecutrix's evidence, then it will not be safe to rely on the said version of the prosecutrix. There is contradiction and omissions in the statement of the prosecutrix and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony the prosecutrix must inspire confidence. Even though the testimony of prosecutrix is not required to be corroborated, if her statement is not believable then the accused cannot be convicted. The prosecution has to bring home charges levelled against the appellant beyond any reasonable doubt, which prosecution has failed to do in the instant case. 19 29.From the aforesaid discussion, we are of the view that no offence against the appellant under the IPC or the POCSO act has been made and he is entitled for benefit of doubt. 30.Consequently, the appeal is Allowed. The impugned judgment of conviction and sentences passed against the appellant is set aside. The appellant is acquitted from all the alleged offences. The appellant is reported to be in Jail since 21.09.2022. He be released forthwith, if not required in any other case. 31.Keeping in view the provisions of Section 481 of B.N.S.S. 2023, the appellant is directed to furnish a personal bond of 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. 32.The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice sagrika