1 2025:CGHC:4434-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1547 of 2023 1 - Anil Kumar Chakradhar S/o Ramkumar Chakradhari @ Gariba Aged About 21 Years R/o Datrengi, Police Station Gidhpuri, District Balodabazar-Bhatapara (C.G.) ... Appellant(s) versus 1 - State of Chhattisgarh Through Police Station Gidhpuri, Balodabazar-Bhatapara (C.G.) ... Respondent(s) For Appellant(s) : Mr. Ashok Kumar Verma, Advocate. For Respondent(s) : Mr. Hari Om Rai, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ravindra Kumar Agrawal, J 24/01/2025 1. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure 1973, (for short the, Cr.P.C.) against the judgment of conviction and sentence dated 04.03.2023 passed by Learned Additional Sessions Judge (FTC) (POCSO Act), Balodabazar (C.G.) in Special Criminal Case (POCSO) No. 51/2020, whereby the appellant has been convicted and sentenced in the following manner: 2 Conviction Sentences U/s 363 of I.P.C. R.I. for 5 years and fine of Rs. 500/-. in default of payment of Additional RI for 6 months. U/s 366-A of I.P.C. R.I. for 5 years and fine of Rs. 500/- in default of payment of fine Additional RI for 6 months. U/s 4 POCSO Act of IPC R.I. for 20 years and fine of Rs. 1,000/- in default of payment of fine Additional RI for 1 year. All the sentences shall run concurrently. 2. Brief facts of the case are that on 23.07.2020 the father of the victim PW-3 lodged a missing report to the police that his minor daughter is missing since the intervening night of 21 and 22.07.2020 and her whereabouts could not be traced out despite her search in nearby places and relative's house. The police has registered the FIR Ex.-P/6 for the offence under Section 363 of IPC against the unknown persons and started investigation. During the investigation the victim was recovered on 24.07.2020 from the possession of the appellant and recovery panchnama Ex.-P/4 was prepared in presence of the witnesses. The victim was sent for her medical examination to Community Health Centre, Parari where she was medically examined by Dr. Anita Verma PW-10 who gave her report Ex.-P/22-A. While medically examined the victim no external injuries have been seen on her body and her hymen was old ruptured. She opined that the victim had might gone the act of intercourse but there is no sign of recent intercourse. 3. The spot map Ex.-P/7 was prepared by the police and Ex.-P/10 was prepared by the Patwari. With respect to the age and date of birth of the victim the school register has been seized from Government Primary School, Datringi vide seizure memo Ex.-P/11 and the affidavit register has been seized vide seizure memo Ex.-P/12. After retaining its attested true copy Ex.- P/13-C and Ex.-P/14-C respectively, both the school registers were return to the school. The appellant was arrested on 25.07.2020 and he too was sent 3 for his medical examination to Community Health Centre, Palari where PW-3 Dr. Yogendra Verma has medically examined him and gave his report Ex.-P/18-A. After medically examined the appellant, the doctor has opined that the appellant is capable to perform sexual intercourse. The underwear of the victim underwear of the appellant were sent for chemical examination to FSL, Raipur from where report Ex.-P/32 was received and no semen and sperms were found on the sent articles. 4. Statement of the 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 Section 363, 366-A, 376(2)(n) of I.P.C. and Section 17, 18 & 4 of POCSO Act before the learned trial Court. 5. The learned trial Court has framed charge against the appellant for the offence under Section 363, 366-A, 376 of I.P.C. and Section 4 of POCSO Act, The appellant denied the charge and claimed trial. 6. In order to prove the charge against the appellant, the prosecution has examined as many as 14 witnesses. Statement under Section 313 of Cr.P.C. have also been recorded in which he denied the circumstances against him, plead innocence and have submitted that he has been falsely implicated in the case. 7. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence this appeal. 8. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis for conviction of the appellant for the alleged offence. There is no cogent and clinching evidence with respect to the age and date 4 of birth of the victim to prove that she was minor on the date of incident. The school record produced by the prosecution has not been proved in accordance with law and the author of the school record has not been examined even the basis on which the date of birth of the victim is recorded in the said school register have also not been produced. No birth certificate, Kotwari register or ossification test report has been produced by the prosecution to prove that the victim was minor on the date of incident. He would further submits that the victim being the major girl, having love affair with the appellant and she herself eloped with him on her own will and engaged in making consensual physical relation with the appellant, which does not amounts to offence of rape. The victim herself gone with the appellant without raising any objection and she has not made any complaint to anyone on the way or even while residing with the appellant, therefore, no offence of kidnapping/procuring the minor girl for illicit intercourse are made out. He would also submits that the victim has not tried to protest the act of the appellant, there is no sign of any struggle found on her body. There is no allegation that while making forceful sexual intercourse by the appellant with her, she tried to save herself by giving nail scratch mark or teeth bite on the body of the appellant, therefore, the entire evidence produced by the prosecution reflects that the victim was consenting party and she herself had gone with the appellant and engaged in making consensual physical relation, therefore, no offence of either kidnapping or procuring a minor girl for illicit intercourse or for the offence of rape are made out and the appellant is entitled for acquittal. 9. On the other hand, learned counsel for the State opposes and have submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradiction, the evidence of prosecution witnesses are fully reliable which can be made basis for conviction of the appellant. From the school records the age of the victim has been proved 5 and she was found to be minor on the date of incident. The evidence of the victim itself is sufficient and no corroboration is required to prove the offence as the victim remained firm in her allegation that the appellant has committed rape upon her. The minor omissions and contradiction came in the evidence of the witnesses does not affect the credibility of the witnesses, therefore, there are sufficient evidence produced by the prosecution and the appellant is not entitled for acquittal and his appeal is liable to be dismissed. 10. We have heard learned counsel for the parties and perused the record of the case. 11. The first and foremost question arise for consideration would be the age of the victim as to whether on the date of incident she was minor or not. The prosecution has mainly relied upon the school registers Ex.-P/13-C and Ex.- P/14-C which are sought to be proved by PW-4 who is the Headmaster of the school. He stated in his evidence that he is posted as incharge Headmaster at Primary school, Datringi. The police has seized school register and affidavit register with respect to the date of birth of the victim vide seizure memo Ex.-P/11 and Ex.-P/12. In the school register the date of birth of the victim is recorded as 15.09.2004 and he issued its attested true copy Ex.-P/13-C and Ex.-P/14-C. He brought the original register with him. In cross-examination he admitted that in the school register Ex.-P/13-C and Ex.-P/14-C the entries have not been made by him. he further admitted that in the school register Ex.-P/13-C there is overwriting in the date of birth of the victim recorded in it. He further admitted that at the time of recording of the date of birth of the student in the school register, the same was to be recorded on the basis of birth certificate or any other relevant documents but in the school register Ex.-P/13 there is no such entries. He further admitted that in the affidavit register, there is no affidavit of the parents of the victim is annexed. He voluntarily stated that sister of the victim has submitted the affidavit. He further admitted that on what basis the date of birth of the victim 6 is recorded in the school register he did not know. 12. In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, 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 prosecutrix 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. 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 Purohit, 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, 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 7 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 Jaiswal, 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 cannot 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. 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." 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 8 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. 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 9 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.” 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 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. Stateof 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. 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 10 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.” 15. PW-2 victim have not disclosed her date of birth in her chief examination. Even when the leading question was being asked from her she has not disclosed her date of birth in cross-examination. She stated that presently she is aged about 16 years and 5 months. She denied that she admitted in Class-I at the age of 7 years. She voluntarily stated that she admitted in the school at the age of 6 years. 16. PW-1, who is the mother of the victim have also not disclosed her date of birth but have stated that the victim is aged about 15 years and 10 months at the time of incident. In cross-examination she stated that her eldest daughter is born on 20.10.1998. He further voluntarily stated that his son is born on 19.11.1996 she denied the suggestion given by the defence that her daughter is presently aged about 18 - 19 years. But she has not disclosed her date of birth as she disclosed the date of birth of her other children. 17. PW-3, is the father of the victim has also not disclosed any date of birth of the victim but have stated that on the date of incident the victim was aged about 15 years and 10 months. 18. In cross-examination he stated that he did not know as to whether he has got registered the birth of his children with the Kotwari Panzi or not. He denied the suggestion that he has not gone to the school for admission of the victim in the school. He voluntarily stated that his elder daughter had gone to school for her admission and at that time his elder daughter was aged about 10 - 12 11 years. He admitted that on what basis his elder daughter have got admitted her in the school and recorded her date of birth he did not know. 19. PW-5, is the Kotwar of the village have stated in his evidence that the police has asked to submit the Kotwari register of the year 2004 with respect to the date of birth of the victim and he shows his inability to produce it as the same was not with him. In cross-examination he admitted that the Kotwari Panzi was lying with the police station. He is Kotwar of the village since 2005 he has not got the Kotwari register of 2004 in his charge. Except from these evidences no other evidence is produced by the prosecution to prove the date of birth and age of the victim. The victim herself and her parents have not disclosed any date of birth of the victim and they stated on assumption that the victim was less than 18 years of age. When the PW-1 mother of the victim have stated the date of birth of the other children, she could have disclosed the date of birth of the victim also but she did not disclose her date of birth. Her father too have not disclosed her date of birth, the victim was being taken by her elder sister and at that time her elder sister herself was 10 - 12 years of age and one cannot accept that in such age one can take her younger sister for admission in the school. Particularly when her parents are available, therefore, in the facts and circumstances of the case it can be said that the prosecution could not be able to prove the age of the victim by leading and cogent and clinching evidence. yet the learned trial Court has held her minor. 20. So far as the allegation of kidnapping, procuring a minor girl for illicit intercourse and the rape are concerned, We again examine the evidence available on record. 21. PW-2, victim have stated in her evidence that on the date of incident her brother has scolded her on the issue of her study and then at about 10:00 - 10:30 in the night she left her house without informing to any of her family members. When he reached Hathipark, appellant came in four wheeler 12 vehicle and asked to accompany with him. Since she was anger state of her mind from her family members, she went along with the appellant. The appellant took her to Bhilai to her parents and in the night the appellant had taken her in the terrace and after allurement of marriage he made physical relation with her. Since she was all alone in his house she could not raise her alarm. 22. In the next morning the appellant left her to another place and she could not know the place where he left her. On the 3rd day the police came there along with her parents and taken her back. The recovery panchnama Ex.-P/4 was prepared and her 164 Cr.P.C. statement Ex.-P/5 was also recorded. In cross- examination she denied the suggestion given by the defence that both of them were having love affair with each other and she voluntarily stated that the appellant is the friend of her brother and used to come to her house. She further admitted that her brother have raised suspicion that she used to talk to the boys and not interested in her study. When her brother have scolded her she left her house at 09:30 in the night. She admitted that she came upto Raipur main road it was at the distance 3 - 4 km where the appellant met with her and took her to Bhilai. 23. She admitted that since it was night time, she stayed in the house of the appellant She was being taken to Sakhi Centre, Baloda bazaar. She on her own will had gone to Bhilai along with the parents of the appellant and she reached there along with them. She did not know as to for what reason the parents of the appellant sent her in another house. The house where she was residing, her parents were not there but the appellant used to visit there. She denied by giving statement that she is living with the appellant and wanted to marry with her. When she was confronted with her 164 Cr.P.C. statement. She denied the statement made in her 164 Cr.P.C. She further admitted that she has not made any complaint to any police authorities that the appellant has given threatening to her. From perusal of 164 Cr.P.C. 13 statement of this witness which is marked as Ex.-P/5 which reflects that in her 164 Cr.P.C. statement she stated that she knew the appellant and since last 6 months she is living with her. She wanted to marry with her and on 21.07.2020 she came with the appellant on her own will and stayed in his house at Bhilai. They made physical relation with each other at Bhilai and thereafter she was residing in a rented house along with the appellant. The appellant was working in a company at Durg and she was residing alone at that time. She stayed with the appellant at Durg for about 2 days and on the 3rd day her parents came there. In her Court deposition she completely denied that she was having love affair with the appellant. From the entire evidence either in 164 Cr.P.C. or in the Court deposition she has not stated anything that at any point of time she raised any alarm or protested when the appellant was making physical relation with her. It is not the case of the victim that she protested at the time of making physical relation by the appellant with her and further there is no sign of any struggle on her body even she has not stated that she has given any nail scratch mark or teeth bite on the body of the appellant. From her evidence as well as her 164 Cr.P.C statement, the fact came out that she was having love affair with appellant and herself had gone with him and engaged in making consensual physical relation. It is not the case that she left her house on the instance of the appellant but she on her own will left her house, came upto National Highway from where the appellant took her to his house. When the victim is not found to be minor and she was in love affair with the appellant, she herself left her house on her own will along with the appellant and resided with him in a rented house, engaged in making physical relation with him without raising any objection and without any complaint and even when she was having liberty to flee from the place of her rented house she did not do so, clearly suggested that she was consenting party in making physical relation with the appellant and she herself on her own will had gone with the 14 appellant as she was in love affair with him. 24. In the matter of S. Varadarajan Vs. State of Madras, reported in AIR 1965 SC 942, the Hon'ble Supreme Court has considered distinction between 'taking' and allowing a minor to accompany a person and held in para 9 and 10 of the judgment as follows:- “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 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”.” 25. The version of the victim commands great respect and acceptability, but if there are some circumstances which cost some doubt in the mind of the Court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omission in the statement of the victim and other witnesses. The law is well-settled that in a 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 15 to being home the charges levelled against the appellants beyond reasonable doubt, which the prosecution has failed to do in the instant case. 26. PW-1, is the mother of the victim have stated that when the victim was missing from her house they lodged her missing report. When the appellant was also not found in his house from the same time they were having suspicion upon the appellant. The police persons have taken them to the house of the appellant and when the police persons inquired from the appellant he disclosed her whereabouts and thereafter she was recovered. She stated in her evidence that when her daughter met him she has not disclosed about any incident except that the appellant has kept her in his relatives house. When the leading question was being asked from this witness, she stated about the incident that the victim has disclosed the same. In cross-examination she admitted that the victim has left her house without informing anyone of his family member. She further admitted that the elder brother of the victim have scolded her on the issue of her studies and for that reason she left her house. She did not know as to with whom she had gone. She further admitted that the victim was not found at Bhilai but the appellant has taken them to another house where she was found, she was not having any conversation with her daughter when she was found. She admitted that in the police station the victim has stated that she did not want to live with her parents. 27. PW-3, is the father of the victim have stated in her evidence that when the victim could not be found in the house he lodged the missing report. The appellant was also missing from his house, therefore, they raised suspicion upon him and when he along with the police persons had gone to village Aklordi, the appellant was found there and on being inquiry he took them to the place where the victim was residing. Thereafter, the police has prepared the recovery memo Ex.P/8. In cross-examination he admitted that the victim was found at village Aklordi. The distance between Aklordi and Ramnagar is 16 about 30 km. The victim was found at village Ramnagar. He did not state as to whether the victim have disclosed any incident to him or not. In his further cross-examination he admitted that the appellant is friend of his son. 28. PW-10, Dr. Anita Verma who medically examined the victim has not found any external injuries on her body. She found her hymen was old ruptured and the blood was coming out from her private part due to her mensus. She could not found any symptoms of recent intercourse. 29. PW-12, who is the lady Head Constable at police station Baloda bazaar have stated in her evidence that she recorded the statement of the victim under the instruction of her Higher Officer. She admitted that while recording the statement of the victim Ex.-P/6, she disclosed that she knew the appellant since last one year, both of them were loving each other and wanted to marry. They used to met with each other in her own house. This witness have proved the fact that the victim has disclosed in her statement that she was having love affair with the appellant and regularly met with each other. 30. The close scrutiny of the evidence goes to show that the victim was having love affair with the appellant, she herself left her house and went along with the appellant resided with him and made physical relation with him without raising any objection or protest. Despite having an opportunity to flee from the place she did not do so. The evidence clearly suggests that she being a major girl having engaged in consensual physical relation with the appellant on her own will without any objection which does not amounts to either the kidnapping, procuring minor girl for illicit intercourse or the offence of rape. The evidence produced by the prosecution is not sufficient to uphold the conviction of the appellant for the alleged offences and the appellant is entitled for benefit of doubt. 31. In the result the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellant is acquitted from the alleged offences. The appellant is reported to be in jail 17 since 04.03.2023. he be released forthwith if not required in any other case. 32. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Anil Kumar Chakradhar is directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 33. The trial Court record 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 Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.02.25 10:46:57 +0530