1 2025:CGHC:43958 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1057 of 2016 Rakesh Sona S/o Abhimanyu Sona, Aged About 18 Years R/o Village- Charbhatha, Dipapara, Police Station- Saraipali, District- Mahasamund, Chhattisgarh, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station House Basna, District- Mahasamund, Chhattisgarh, Chhattisgarh ... Respondent (Cause title taken from CIS) For Appellant : Shri Gajendra Sahu, Advocate. For Respondent : Shri Shailendra Sharma, Panel Lawyer. Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board 29/08/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 20/06/2016 passed in Special Case No. H- SHOAIB ANWAR Digitally signed by SHOAIB ANWAR Date: 2025.09.02 17:33:02 +0530 2 58/2015 by the learned Additional Sessions Judge Fast Track Court Mahasamund District Mahasamund (C.G.), whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 363 of the IPC R.I. for 04 years with fine of Rs. 500/-, with default stipulation. U/s 366 A of the IPC R.I. for 04 years with fine of Rs. 500/-, with default stipulation. U/s 6 of the POCSO Act R.I. for 10 years with fine of Rs. 1000/-, with default stipulation. All the sentences were directed to run concurrently. 2. The prosecution story, in brief, is that the complainant, lodged a report at Police Station Basna stating that on 10.09.2015, when he woke up in the morning, he found that his daughter, the prosecutrix, aged about 16 years, was missing from her room and could not be traced despite search. He suspected that one Rakesh Ghasia/appellant of village Charbhatha, who frequently visited their village, had enticed and taken away his minor daughter from their lawful custody. 3. On the basis of the said report, a First Information Report 3 bearing Crime No. 265/2015 was registered on 11.09.2015 under Section 363 of the IPC. During the course of investigation, the prosecutrix was recovered from the custody of the accused. With the consent of the prosecutrix and her father, and upon obtaining permission from the Sub-Divisional Magistrate, Saraipali, her medical examination was conducted. One sealed packet containing the knickers of the prosecutrix and the corresponding slides was seized, as well as slides of the genital examination of the accused. 4. For determination of age, the dakhil kharij register relating to the prosecutrix was seized. Statements of the witnesses were recorded, and the accused was arrested. The statement of the prosecutrix was also recorded under Section 164 Cr.P.C. before the Magistrate. The seized articles were sent to the Forensic Science Laboratory for chemical examination. Upon completion of investigation, charge- sheet was filed against the accused before the concerned Court. After framing the charges, the same was read over to the appellant, which he denied and claimed to be tried. 4 In order to bring home the offence, the prosecution has examined 15 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 20/06/2016 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 5. Mr. Gajendra Sahu, learned counsel for the appellant would submit that the FIR was lodged with delay and the conviction recorded by the trial Court is erroneous on facts and law. He further contended that the age of the prosecutrix has not been proved beyond doubt, as the school Principal himself admitted that he had neither filled the date of birth entry in the register nor knew the basis on which it was recorded. The prosecutrix admitted her affair with the appellant and also that she refused to accompany her father when he came with villagers to take her back, showing her voluntary conduct. She further stated in cross- 5 examination that one Rakesh Gada had molested her, yet he was not made an accused. Even at the time of recovery, the appellant was not present in the house, thereby falsifying the allegation that she was in his custody. 6. On the other hand, Mr. Shailendra Sharma, learned Panel Lawyer appearing for the respondent/State would support the impugned judgment and submits that the prosecution has proved its case beyond reasonable doubt that the victim was minor on the date of commission of offence and the trial Court has rightly convicted and sentenced the appellant, as such, the criminal appeal deserves to be dismissed. 7. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 8. The first question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 363 of the IPC ? 9. The appellant has been convicted for offence under Section 363 of the IPC, which is punishable for kidnapping. 6 Kidnapping has been defined under Section 359 of the IPC. According to Section 359 of the IPC, kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states as under:- “361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.” 10. The object of Section 359 of the IPC is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients:- (1) Taking or enticing away a minor or a person of unsound mind. (2) Such minor must be under sixteen years of age, if a male, or under eighteen years or age, if a female. 7 (3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind. (4) Such taking or enticing must be without the consent of such guardian. So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18 years of age; (ii) such minor was in the keeping of a lawful guardian, and (iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian. 11. The Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras1, took the view that if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so and held that if evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian and held as under:- 1 AIR 1965 SC 942 8 “It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”. 12. Reverting to the facts of the present case in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra). 13. Upon a careful consideration of the evidence, particularly the testimony of the prosecutrix, this Court is of the view 9 that the offence under Section 363 IPC is not made out. The prosecutrix herself admitted that she was in a love relationship with the appellant and that, on the date of the incident, she voluntarily went with him at about 10–11 p.m. without informing her family and stayed with the accused for 2-3 days. She further stated that when her father and some villagers came to the appellant’s house the following day, she refused to accompany them and even threatened to commit suicide if forced to return. She also admitted that at the time of her father’s first visit the appellant was not present in the house, and that during her stay the family members of the appellant were also residing there. These facts clearly demonstrate that the prosecutrix was neither taken nor enticed away by the appellant; rather, she went with him of her own free will. On the other hand, it is clearly established that the victim herself accompanied the appellant and there is no inducement to the victim by the appellant to leave the lawful guardianship. Therefore, in the considered opinion of this Court, the act/omission of the appellant, if any, would not tantamount to “taking” within the meaning of Section 361 of the IPC in light of judgment of 10 the Supreme Court in S.Varadarajan (supra). Similarly, there is no evidence of enticing the minor victim by the appellant. As such, the trial Court is absolutely unjustified in convicting the appellant for offence under Section 363 of the IPC. 14. The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 366 of the IPC ? 15. Bare perusal of the evidence of the victim girl, it appears that victim girl voluntarily accompanied the accused without being enticed or influenced. Mere accompanying a person without being induced does not constitute an offence under Section 366 of the IPC. Though, the learned State counsel vehemently contended that age of the victim girl has proved by the prosecution that she is minor as on the date of incident, nevertheless, in order to convict the accused for the offence under Section 366 of the IPC, other two essential ingredients i.e. the victim girl must be induced by the accused and she must be induced by the accused person to go from a place or to do any act with an intent that such girl may be knowing that it is likely that she will be forced or seduced to illicit intercourse by another person. As such, the 11 prosecution has failed to prove the ingredients of offence under Section 366 of the IPC. 16. Now the question arises before this Court whether the victim was minor on the date of incident or not? 17. The Victim (PW1) in her deposition has stated that her age is 16 years and she do not remember her date of birth. (PW-2) father of the prosecutrix has stated that prosecutrix is his daughter, whose age would be about 15–16 years, though he did not remember her actual date of birth. He further stated that, as he is illiterate, he was unable to disclose the exact date of birth of his daughter and that he had mentioned her age only by approximation. He deposed that his own age would be more than 50 years and that his marriage had taken place when he was about 18–19 years old. He also stated that prosecutrix was born about five years after his marriage. He added that prosecutrix studied up to Class VII and thereafter discontinued. 18. Arjun Bhoi (PW-7), Assistant Teacher (Panchayat) of the Primary School has stated in his deposition that he had produced the Dakhal Kharij register related to the age of 12 victim before the police. He has stated that according to the Dakhil Kharij register (Article A1-C), the date of birth of the prosecutrix was recorded as 20.02.1999. In the cross- examination this witness admitted that the entry of the date of birth of prosecutrix in Article A-1, Serial No. 867, was not made by him. He further stated that, in the same register at Serial No. 867, he had made an entry only in the column relating to the date of leaving school in respect of prosecutrix. He also stated that he could not say on what basis the date of birth of prosecutrix had been recorded in Article A-1. 19. Perusal of the aforesaid statements of the witnesses would show that though there is entry regarding date of birth of the victim in the Dakhil Kharij register, but on what basis, the entry was made, is not mentioned in the register, whatsoever mentioned in the register is ordeal in nature. 20. 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, the Supreme Court has observed as under: 13 "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, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date 14 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 15 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 16 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." 21. 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. 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), 17 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 scrutinized 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. 18 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 19 factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015." 22. 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. 20 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) 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." 21 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." 22 23. Even if we consider the age of victim as 16 years, as has been pleaded by the prosecution, the Supreme Court in the matter of Jaya Mala v. Home Secretary, Govt. of Jammu & Kashmir and others2, has held that a judicial notice can be taken that the margin of error in age ascertained by Radiological examination is two years on either side. Relevant para of the said judgment states as under:- “9. Detenu was arrested and detained on Oct. 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention. Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert, in Oct., 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheavel in the educational institutions. This young school going boy may be enthusiastic about the students’ rights and 2 AIR 1982 SC 1297 23 on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed.” 24. Very recently in the matter of Tilku Alias Tilak Singh V. The State Of Uttarakhand, reported in 2025 INSC 226, the Supreme Court has held that the victim, who is between 16 to 18 years of age is very much in the age of understanding as to what was right and wrong for her. Relevant para of the said judgment states as under:- “16. Even if the finding of the learned Single Judge of the High Court that the prosecutrix was between 16 to 18 years of age is to be accepted, in our view, the offence under Sections 363 and 366 IPC would still not be made out. 17. This Court in the case of S. Vardarajan v. State of Madras, reported in 1964 SCC OnLine SC 36 had an occasion to consider almost similar facts that arise for consideration in the present case. This Court has observed thus: 24 “7. …..It will thus be seen that taking or enticiting away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to “taking” out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law “taking”. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there 25 (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of 26 attaining majority and was capable of knowing what was good and what was bad for her…….” 18. It is thus clear that the prosecutrix, who according to the learned Single Judge of the High Court, was between 16 to 18 years of age was very much in the age of understanding as to what was right and wrong for her. 19. From the evidence of the prosecutrix itself, it will be clear that she had voluntarily gone along with the appellant herein, travelled to various places and also resided as husband and wife at Dehradun.” 25. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of compliance of the proposition laid down by the Supreme Court in the above judgment. Hence, in absence of proof regarding the date of birth of the victim, the finding of the learned trial Court that the victim was a minor on the date of incident cannot be acceptable. Therefore, the conviction and sentence imposed upon the appellant under Section 6 of the POCSO Act is not made out. 26. Now reverting back to the case of prosecution, it is evident that the Victim (PW1) has deposed that the incident is about 2–3 months old. The accused is a resident of village Charbhatha and his brother’s in-laws reside in village 27 Thakurpali. The accused used to frequently visit his brother’s in-laws, where he happened to see her and called her to meet him. She admitted that she went once to meet him, when the accused told her that he could not live without her and asked her to accompany him. Thereafter, according to her, the accused forcibly took her at night to Charbhatha. She did not inform her family about the said fact. She further stated that she remained at Charbhatha with the accused for 2–3 days, during which the accused committed sexual intercourse with her three times against her will. In cross-examination, she admitted that she and the accused were in love with each other and that her father was aware of the relationship and used to scold her for the same. She also admitted that on the relevant night she herself went with the accused at about 10–11 p.m. She further admitted that on the next day, when her father and 1–2 other villagers came to the accused’s house at Charbhatha, she and the accused were present there. She stated that when her father and villagers asked her to return home, she refused and threatened to commit suicide if she was compelled, since the accused had instructed her to say so. She admitted that 28 at the time when her father first came, the accused was not present in the house. She admitted that when her father first came, she did not go with him, and only on the next day, when her father came with the police, she returned home. she had stated that one Rakesh had threatened her and established physical relations, but she did not mention the same in her police statement (Ex.D-1). 27. Father of the victim (PW-2) has stated that when he first went to the house of the accused at village Charbhatha to bring the prosecutrix back, she voluntarily refused to accompany him. He further stated that he does not know about the love affair between the prosecutrix and the accused/appellant. 28. On scrutiny of the evidence, it emerges that the prosecutrix (PW-1) and the appellant were admittedly in a love affair. The prosecutrix herself admitted in cross-examination that she had voluntarily gone with the appellant at about 10–11 p.m., and when her father (PW-2) first reached the appellant’s house, she refused to return with him and threatened to commit suicide if compelled. PW-2 has also corroborated that his daughter voluntarily declined to accompany him. 29 These admissions clearly demonstrate that the prosecutrix had gone with the appellant of her own free will and not under any inducement or compulsion. 29. From perusal of the FSL report (which has not been exhibited), it is clear that out of the seized articles – Exhibit A (underwear of accused), Exhibit B (vaginal slide of accused), Exhibit C (underwear of victim) and Exhibit D (slide of victim) – only Exhibit B was found to contain human sperm. No semen stains or sperm were detected on the other exhibits i.e., the underwear of the accused, the underwear of the victim, or the slide of the victim. 30. The presence of human sperm on Exhibit B alone, without any corresponding detection on the victim’s underwear or slide, fails to establish any direct nexus between the alleged act and the accused. The prosecution has not produced any further scientific or corroborative evidence to connect the accused with the alleged offence. 31. Thus, the evidence on record creates serious doubt regarding the prosecution case. It is a settled principle of criminal jurisprudence that if two views are possible, the one 30 favourable to the accused must be adopted. 32. Applying the principle of law laid down by the Supreme Court to the facts of the present case and considering the evidence, it is manifest that the case of the prosecution does not conclusively connect the appellant with the alleged offence and creates doubt regarding the prosecution version, entitling the appellant to the benefit of doubt. 33. As a fallout and consequence of the aforesaid legal analysis, the impugned judgment dated 20/06/2016 is hereby set aside. The accused / appellant is acquitted of the said charges levelled against him. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal Appeal is allowed. 34. 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/- (Bibhu Datta Guru) Judge Shoaib