1 CRA No. 2081 of 2024 2025:CGHC:45817-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2081 of 2024 Firoj Vaishnav S/o Late Lilak Das Vaishnav, Aged About 25 Years R/o Village- Bori, Police Station-Mandir Hasod, District-Raipur (Chhattisgarh) ... Appellant(s) versus State Of Chhattisgarh Through-Police Station-Abhanpur, District-Raipur (C.G.) ... Respondent(s) (Cause-title taken from the Case Information System) For Appellant(s) : Ms. Anjali Pradhan, Advocate For Respondent(s) : Mr. Sakib Ahmad, Panel Lawyer Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Bibhu Datta Guru, J 09/09/2025 1. This criminal appeal preferred under Section 415(2) of the B.N.S.S. is against the impugned judgment of conviction and order of sentence SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.09.12 10:45:00 +0530 2 CRA No. 2081 of 2024 dated 19.07.2024 passed in Special Trial No. 226/2021 by the learned Additional Sessions Judge Second (POCSO) Fast Track Special Court, Raipur, C.G., whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 363 of the IPC Rigorous imprisonment for 02 years and fine of Rs. 1,000/- with default stipulation. U/s 366 of the IPC Rigorous imprisonment for 05 years and fine of Rs. 2,000/- with default stipulation. U/s 4(2) & 6 of the POCSO Act Rigorous imprisonment for 20-20 years and fine of Rs. 2,000/- (each) with default stipulation. All the sentences were directed to run concurrently. 2. Case of the prosecution, in brief, is that on 21.07.2021, the mother of the victim lodged a report at the Abhanpur police station to the effect that on 20.07.2021, at around 09:00 am, she had gone to work at C.M. House Nava Raipur. At that time, her husband and two daughters were at home. On returning home at around 05:30 pm, her younger daughter told that Didi/victim had left the house at around 10:00 am saying that she was going to visit the neighbour's house, but she did not return. On searching for whereabouts of the victim among the nearby relatives, no trace of the victim was found. On the basis of this information, FIR under Section 363 IPC was registered at the Aabhanpur police station. During the investigation, on 23.09.2021, the victim was recovered and upon questioning, she told that the accused lured her and took her with 3 CRA No. 2081 of 2024 him and forcibly had physical relations with her continuously. 3. During investigation, Spot Map (Ex.P/03) was prepared. With regard to date of birth of the Victim, Dakhil Kharij register (Ex.P/18) and Progress report of Class-8th of the victim (Exhibited as Article A) were seized. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court. 4. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. 5. In order to bring home the offence, the prosecution has examined 10 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. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 19.07.2024 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 7. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that the conviction against the appellant is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. He would submit that while passing the impugned judgment, the trial Court failed 4 CRA No. 2081 of 2024 to appreciate the fact that there are material contradictions and omissions in the statements of the prosecution witnesses. Learned counsel would submit that the prosecution has failed to prove the fact that the prosecutrix/Victim was below 18 years of age at the time of incident. Hence, without there being any cogent evidence with regard to the age of the Victim, the conviction of the appellant is bad in the eyes of law. 8. Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. 9. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the learned trial Court with utmost circumspection and carefully as well. 10. The first question for consideration would be, whether the trial Court is justified in convicting the appellant for the offences under Sections 363 & 366 of the IPC. 11. The appellant has been convicted for offence of kidnapping. 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:- 5 CRA No. 2081 of 2024 “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.” 12. 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. (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. 13. 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 6 CRA No. 2081 of 2024 363 of the IPC, it is evident from the statement of the victim (PW/1) recorded before the trial Court wherein she categorically stated that she knows the accused. The accused is from her maternal grandfather's village, so she knows him. At the time of the incident, she had gone to her maternal grandfather's village where she stayed for three months, during this time, she got acquainted with the accused and then started talking to him. On the date of incident, the accused called her to meet him near the Rajya Utsav Sthal railway line, hence she went there to meet him. In her cross-examination, she also admitted the fact that she and the accused used to talk on mobile phone. She herself stated that the accused did not pressurize her, she went on her own will and did not disclose the above fact to anyone. 14. As such, there is no evidence on record that at any point of time, the appellant solicited or lured or induced or enticed the victim to go with him. 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. 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 the offences punishable under Sections 363 & 366 of the IPC. 15. The second question arises before this Court whether the victim was 7 CRA No. 2081 of 2024 minor on the date of incident or not. 16. From the statements of the witnesses, it appears that there is no conclusive documentary evidence to establish the exact date of birth of the victim. The Head Master (PW-5) posted at Saraswati Shishu Mandir, Tuta, District Raipur, where the victim was studying, has admitted that the date of birth recorded in the school admission register was based solely on the information provided orally by the parents and there is no supporting documents were submitted at the time of admission. Furthermore, PW-5 acknowledged that he cannot substantiate whether the recorded date of birth is accurate or not. The mother (PW-2) and father (PW-3) of the victim stated that they did not remember the exact date of birth of her daughter and further stated that the victim was approximately 17 years old at the time incident. 17. 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. Also considering the above facts and the absence of reliable documentary evidence regarding the victim's age, it appears that the victim may not have been a minor at the time of the alleged incident. 18. 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: 8 CRA No. 2081 of 2024 "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 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 9 CRA No. 2081 of 2024 Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will 10 CRA No. 2081 of 2024 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." 19. 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), 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 11 CRA No. 2081 of 2024 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. 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 12 CRA No. 2081 of 2024 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." 20. 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 13 CRA No. 2081 of 2024 these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the 14 CRA No. 2081 of 2024 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 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. 15 CRA No. 2081 of 2024 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." 21. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment. Hence, in absence of cogent 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 3/4 of the POCSO Act is not made out. 22. 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 others1, 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, 1 AIR 1982 SC 1297 16 CRA No. 2081 of 2024 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 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.” 23. 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 he 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 CRA No. 2081 of 2024 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: “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- 18 CRA No. 2081 of 2024 Registrar's office and got the agreement of marriage registered there (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 attaining majority and was capable of knowing what was good and what was bad for her…….” 19 CRA No. 2081 of 2024 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.” 24. Thus, applying the well settled principles of law laid down by the Hon’ble Supreme Court in the matter of Tilku Alias Tilak Singh (supra), it is held reliable that the victim was major aged about between 16-18 years at the time of incident according to the principles of the Supreme Court. Further it is also stated in the above judgment 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. 25. The next question for consideration would be whether the appellant has committed rape upon her or not and commit the said heinous offence punishable under Section 4(2) & 6 of the POCSO Act. 26. Perusal of the statement of the victim (PW-1) reveals inconsistencies and conduct which raise serious doubts about the prosecution’s claim of forcible sexual intercourse. The victim herself admits to having a prior acquaintance and communication with the accused on mobile phone without the knowledge of her family and further admitted in her evidence that she willingly went to meet the accused when called by 20 CRA No. 2081 of 2024 him. Although she alleges threats and force, she did not inform anyone - neighbours or family, even when she had multiple opportunities, e.g. at a crowded tea stall or during her extended stay at the accused’s residence. Moreover, she stayed alone at Fundhar without contacting her parents despite having the means and reason to do so. These factors, combined with her own admission that she did not disclose the alleged coercion promptly, indicate a lack of evidence to establish the essential element of lack of consent required for the offence of rape. Therefore, on the basis of her statement, no case is made out against the appellant for the offence of commission of rape. 27. Further, the testimony of the medical witness PW-4 does not support the prosecution’s case. The doctor examined the victim on 24.09.2021 and found her to be fully conscious with normal vital signs and fully developed secondary sexual characteristics. Importantly, the medical examination revealed no external or internal injuries on the victim’s body or genital area. The hymen was absent, and the vagina was healthy with no redness or signs of trauma. Although the doctor opined that there were signs of previous sexual intercourse, there were no indications of recent or forcible sexual assault. Additionally, the FSL report (Ex.P-33) found no presence of sperm in the victim’s undergarments or vaginal slide. These medical findings clearly indicate the absence of any physical evidence of rape or sexual violence at the time of examination, thereby weakening the prosecution’s claim of forcible sexual intercourse. 28. Perusal of the above statements and particularly looking to the fact 21 CRA No. 2081 of 2024 narrated and the evidence adduced by the doctor and as also there is no mark was found on any part of the body of the victim. Hence the prosecution would not prove its case firmly that the victim has been assaulted by penetrative and aggravated penetrative sexual assault punishable under Section 4(2) & 6 of the POCSO Act. 29. Upon perusal of the overall evidence and testimonies on record, it emerges that the victim appears to have been a consenting party to the act in question. The prosecution's case suffers from serious inconsistencies and lack of corroborative evidence to establish force or coercion. The mother and father of the victim also stated that they had no knowledge of the alleged incident, they came to know after the victim told them. Furthermore, the medical evidence reveals no signs of physical injury, no injuries on the genitals, which strongly suggests the absence of any forced or non-consensual act. The doctor explicitly stated no signs of force were found on the victim’s body. Even the forensic evidence, including the examination of vaginal slides and stained underwear, did not conclusively establish rape. In absence of medical or ocular evidence indicating the use of force or resistance by the victim, and considering the age, mental capacity, and conduct of the prosecutrix as seen through the sequence of events, it becomes evident that the prosecution case losing its credibility. Taken together, these factors lead to the inference that the act, if it occurred at all, may have taken place with the consent of the prosecutrix, and the prosecution has failed to prove beyond reasonable doubt that the physical relationship was non- 22 CRA No. 2081 of 2024 consensual or forced. 30. Applying the well settled principle of law laid down by the Supreme Court to the facts of the present case and considering the overall evidence available on record, 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. 31. Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that the appellant has committed any offence of rape with the victim, rather it reflects from the evidence that the victim herself had made consensual sexual intercourse with the appellant. Thus, it cannot be said that the appellant committed the offence. 32. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 33. For the foregoing reasons, the prosecution has not proved that the appellant had forcefully taken away the Victim and commit penetrative 23 CRA No. 2081 of 2024 and aggravated penetrative sexual assault with her and from the evidence of the victim, the same creates doubt and also the fact that since, it has also not proved that at the time of incident the Victim was minor, therefore, we are of the considered view that the appellant is entitled to be acquitted. 34. The accused is acquitted of the charges for which he was tried. The impugned judgment of conviction and sentence is set aside. The appellant is in jail. He be released forthwith if not required in any other case, on furnishing a personal bond for a sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the trial Court. The bail bond shall remain in operation for a period of six months as required under the provisions of Section 481 of the BNSS. The appellant shall appear before the higher Court as and when directed. Accordingly, the Criminal Appeal is allowed. 35. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice S. Bhilwar