1 2025:CGHC:5558-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2349 of 2023 1 - Mukesh Bariha @ Dhruv S/o Netram Bariha Aged About 18 Years R/o Village Parsawani P.S. Mahasamund, District - Mahasamund, Chhattisgarh. ... Appellant(s) versus 1 - State of Chhattisgarh Through Police Station - Mahasamund, District - Mahasamund, Chhattisgarh. ... Respondent(s) For Appellant(s) : Mr. Mohit Kumar, Advocate. For Respondent(s) : Mr. Malay Jain, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ravindra Kumar Agrawal, J. 30/01/2025 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 impugned judgment of conviction and sentence dated 30.09.2023 passed by Learned Special Judge (POCSO Act 2012, Mahasamund, C.G.) District- Mahasamund, Chhattisgarh in Special Session Case No. H-15/2023, whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentence 2 U/s 363 IPC RI for 5 years and fine of Rs. 1000/- in default of payment of fine further 1 month additional RI U/s 366 IPC RI for 7 years and fine of Rs. 2000/- in default of payment of fine further 2 months additional RI U/s 6 POCSO Act RI for 20 years and fine of Rs. 10000/- in default of payment of fine further 6 months additional RI All the sentences shall run concurrently. 2. The brief facts of the case are that on 13.01.2023 the father of the victim PW- 2 have lodged a missing report to the police that his minor daughter is missing since 13.01.2023 at 13:30 hours and her whereabouts could not be traced out. He suspected that someone has allured his minor daughter and kidnapped her. The police has registered the FIR Ex.P/3 for the offence under Section 363 of IPC and started investigation. During the investigation the victim was recovered on 19.01.2023 and he was produced by her father before the police station and recovery panchnama Ex.P/1 was prepared in presence of the witnesses. She was sent for her medical examination to District Hospital Mahasamund where she was medically examined by Dr. Heena Kashyap. With respect to age and date of birth of the victim, the police have seized school register from Government Primary School, Ghodari vide seizure memo Ex.P/6 and after retaining attested true copy of the said school registers Ex.P/9-C and Ex.P/10, the original register was return back to the school. The spot map Ex.P/4 was prepared by the police and Ex.P/ 5 was prepared by the Patwari. The appellant was arrested on 20.01.2023 and he too was sent for his medical examination to District Hospital, Mahasamund where he was medically examined by PW-4 Dr. Manprit Singh Gurudutta who gave his report Ex.P/11. After medical examination of the appellant, he was found to be fit to perform sexual intercourse. The appellant was put to test identification parade which was 3 conducted by the Tahsildar, Mahasamund on 21.01.2023 and test identification memo Ex.P/23 was prepared in which the victim has duly identified the appellant. The pubic hair of the victim and semen slides of the appellant and his underwear were set for chemical examination to State FSL, Raipur from where report Ex.P/20 was received and semen and sperms were found on the sent articles. 3. The statement under Section 161 of Cr.P.C. of the witnesses have been recorded and statement of the victim under Section 164 of Cr.P.C. have also been recorded and after completion of usual investigation chare-sheet has been filed before the learned trial Court for the offence under Section 363, 366, 376(2)(n) of IPC and Section 6 of POCSO Act. 4. The learned trial Court has framed charge against the appellant for the offence under Section 363, 366, 376(2)(n) of IPC and Section 6 of POCSO Act. The appellant denied the charge and claimed trial. 5. In order to prove the charge against the appellant the prosecution has examined as many as 10 witnesses. Statement under Section 313 of Cr.P.C. of the appellant has also been recorded in which he denied the circumstance appears against him, plead innocence and have submitted that he has been falsely implicated in the offence. 6. After appreciation of the 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 the judgment. Hence this appeal. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There is material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict the appellant for the alleged offence. There is no cogent and clinching evidence to prove to age of the victim that she was minor on the date of incident. The prosecution has relied upon the school registers which have not been proved in accordance with law. Neither 4 the author of the school register have been examined nor the basis on which the entries have been made in the school register have been produced. No other documentary evidence like Kotwari register, birth certificate or ossification test report have been produced by the prosecution to determine the age to the victim. Oral evidence led by the prosecution regarding her age is also inconsistent, therefore, under the facts and circumstance of the present case the prosecution has failed to prove that the victim was minor on the date of incident. 8. He would further submits that the victim was a major girl having love affair with the appellant and she herself eloped with him on her own free will without raising any objection. She has not made any complaint while going with the appellant and also while staying with him. She has not protested when the appellant allegedly made forceful sexual intercourse with her. He would further submits that the victim was consenting party in making physical relation with the appellant and no offence of either kidnapping or rape has been made out against the appellant and he is entitled for acquittal. 9. On the other hand, learned counsel for the State opposes and have submitted that but for the minor omission or contradiction, the evidence of prosecution witnesses are fully reliable which are sufficient to hold conviction of the appellant. The victim was found to be minor which is proved by the school records which are supported by the evidence of PW-3 who is the Headmistress of the school. The appellant have duly identified by the victim when he was put to test identification parade and thus there is no scope of interference in the present appeal and the appeal filed by the appellant 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 the victim was minor on the date of incident or not ? 5 12. The prosecution has relied upon the school register Ex.P/9-C and Ex.P/10 which are sought to be proved by PW-3 Headmistress of the school. She stated in her evidence that she is posted as Headmistress at Government Primary School, Ghodari since 2008. The police has seized the school register and affidavits register vide seizure memo Ex.P/6 and after retaining its attested true copy Ex.P/9-C and Ex.P/10-C, the original register Ex.P/9 and Ex.P/10-C have been return back to them. She brought the original school register with her. According to the school register the date of birth of the victim is recorded as 02.07.2007. In cross-examination she admitted that the victim has taken admission in her school in Class-II. She further admitted that in absence of any documentary proof of the date of birth of the students, the date of birth are recorded in the school register on assumption or on the basis of date of birth disclosed by their parents. She further admitted that with respect to the date of birth of the victim, there is no mention of any document in the school register. She further admitted that the entries made in the school register Ex.P/9 and Ex.P/10 are not in her handwriting. 13. The admissibility and evidentiary value of the school register have been considered by the Hon'ble Supreme Court 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. 6 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 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:- 7 "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." 14. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under : “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be 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. 8 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.” 15. 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. 9 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 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.” 16. Now referring to the facts of the present case, the victim has stated in her evidence that she is aged about 15 years and her date of birth is 02.07.2007. In cross-examination she stated that she is the eldest in her brother and sisters, she did not know as to in which year she passed the Class-8th. She further admitted that she could not know the date of birth of her brother and sister. She further admitted that she did not see her own birth certificate. 17. PW-2, the father of the victim have also stated that victim is aged about 15 years and her date of birth 02.07.2007. In cross-examination he stated that he has got registered the birth of the victim in Kotwari register of the village. 10 He further admitted that he has not given the birth certificate and Kotwari panzi to the police with respect to the date of birth of his daughter. He denied the suggestion that he has not got admitted his daughter in the school. When he has taken his daughter to school for her admission, he has taken note of date of birth of the victim from Kotwari register. When he was confronted from the school register that his name is not mentioned in the school register then he admitted that the name of his wife is mentioned in the school register. 18. From these evidences, it is quite vivid that the PW-3 is not the author of the school register and the basis on which the entries have been made in the school register have not been produced by the prosecution. The school register Ex.P/9-C is with respect to the admission of the victim in Class-II. The prosecution has silent in producing any document with respect to the admission of the victim in Class-I. When the victim was admitted that in the Class-II in the school, there should be any transfer certificate or progress report card of Class-I from any other school but nothing has been stated by the prosecution witnesses. Further from the oral evidence of victim as well as her father it cannot be said to hold that her date of birth is correctly recorded in the school register. Though her birth was recorded in the Kotwari register as stated by the father of the victim but same has not been produced by the prosecution. Further in absence of any clinching evidence the prosecution should have refer to the victim for her ossification test report but prosecution has also failed to do so. Therefore, it cannot be hold that there is cogent and clinching evidence to prove the age of the victim that she was minor on the date of incident yet the learned trial Court has held her minor. 19. So far as the allegation of knapping and rape is concerned, we again examined the evidence of victim PW-2. She stated in her evidence that she knew the appellant because he was used to come in front of her house who is working as a labourer. On the date of incident the appellant called her near 11 over bridge at National Highway and took her to Chandi Mandir, Birkoni, from where they had gone to village Ghunchapali in the house of maternal grandmother of the appellant. They had gone there by walking through the forest. While going with the appellant, on the way the appellant had made physical relation with her many times, he kept her with him for about 06 days. Thereafter, he left her near Mala Chowk at village Birkoni and then she came back to her house by walking and informed the incident to her parents and, thereafter, they took to her police station where recovery panchnama Ex.P/1 was prepared. In cross-examination she admitted that she could not remember the date on which the appellant took her with him. She was well acquainted with the appellant since last 2 years and she was in love affair with him. During that affair she used to meet with him at Bagbahara Jungle, she used to go by walking and the appellant came there by his motorcycle. She had gone Bagbahara Jungle by walking in which 3 - 4 hours was being taken. She too have also in love affair with the appellant and wanted to marry with him. When she left her house on being call made by the appellant, she did not inform her parents. She met various persons on the way to Ghunchapali but she has not made any complaint to anyone that the appellant is kidnapping her. She also did not disclosed the police that they have stayed in the jungle for about 04 days without having any meals. She also admitted that the appellant has made physical relation with her on earlier occasion also which have not been disclosed by her to her parents or any other member of the family. She has not disclosed about the incident to the maternal grandmother of the appellant when she was residing in his house. She further stated that at village Bokdamunda, she was being kept by the appellant, 8 - 10 persons were also residing but she has not made any complaint to them also about any incident. 20. PW-2, who is the father of the victim have stated in his evidence that his daughter was missing since 13.01.2023 and when her whereabouts could 12 not be traced out. She lodged the missing report Ex.P/3. After about 5 days, on 18.01.2023 his daughter came back to her house she disclosed the incident to her mother who subsequently informed him about the incident that the appellant kidnapped her and took her with him on the pretext of marriage and committed rape upon her. He took her to police station where recovery panchnama Ex.P/1 was prepared. 21. In cross-examination he admitted that the victim has not informed him about any incident to her mother as informed him about the incident. He know the appellant since last 1 year, on the date of incident his nephew has informed that the appellant has kidnapped his minor daughter. Thereafter, he lodged the report to the police. He lodged the report against the appellant but he admitted that the Ex.P/3 is lodged against the unknown person. This witness have stated on the basis of the information disclosed by the mother of the victim. It would not be sufficient to corroborate the evidence of the victim or to hold the conviction of the appellant. 22. PW-9, Premlal Sahu is the Tahsildar who conducted the test identification parade and prepared memo Ex.P/23. He stated in his evidence that he conducted the test identification parade on 21.01.2023 at Tahsil Office, Mahasamund in presence of the witnesses and victim has duly identified the appellant. The evidence of this witness as also the test identification parade is not have any much relevance because it comes in the evidence of victim as well as her father that they knew the appellant since last 1 - 2 years. The victim was having love affair with the appellant since last 2 years, therefore, there is no question of the identification of the appellant. 23. In the present case the MLC report of the victim has not been proved by the prosecution it reflects from the order sheet dated 13.09.2023 that though the arrest warrant was issued against the witness Dr. Heena Kashyap but the learned trial Court considering the fact that Dr. Heena Kashyap was at Delhi, therefore, the learned trial Court has closed the right of the prosecution to 13 lead evidence and proceed in the trial, therefore, there is non-examination and non-proving of the medical report of the victim or any injuries on her body which also goes against the prosecution. 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 prosecutrix 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 prosecutrix evidence, then it will not be safe to rely on the said version of the prosecutrix. There is contradiction and omission in the statement of the prosecutrix 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 prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be 14 corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to being home the charges levelled against the appellants beyond reasonable doubt, which the prosecution has failed to do in the instant case. 26. In view of the aforesaid consideration, we do not find any sufficient ground to uphold the conviction of the appellant and sentence awarded to him, therefore, the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence is hereby set aside. The appellant is acquitted from all the offences. The appellant is reported to be in jail since 20.01.2023, he be released forthwith if not required in any other case. 27. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Mukesh Bariha @ Dhruv 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. 28. 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: 2025.02.21 10:53:19 +0530