1 2025:CGHC:52936-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1054 of 2024 Ritesh Kumar Nishad Alias Golu S/o Janakram Nishad Aged About 24 Years R/o Station Para Temry, Ps Mana Camp Raipur, CG ...Appellant versus State Of Chhattisgarh Through Station O&cer Mana Camp, District- Raipur, Chhattisgarh. ... Respondent(s) (Cause title taken from CIS) For Appellant : Shri C.R. Sahu, Advocate. For Respondent(s) : Shri Nitansh Jaiswal, Panel Lawyer. Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per, Bibhu Datta Guru, Judge 30/10/2025 By order dated 19.07.2024, this Court directed the State counsel to inform the complainant/father of victim (PW2) regarding pendency of the appeal revealing that he can appear on the date 7xed and object the prayer made by the appellant. Today, learned State counsel would submit that the intimation regarding pendency of the appeal has already been given to the complainant. SHOAIB ANWAR Digitally signed by SHOAIB ANWAR Date: 2025.10.31 19:01:45 +0530 2 Despite the above, no representation is made on behalf of the complainant to object the prayer. 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 05.01.2024 passed in Special Criminal Case No. 157/2020 by the learned Additional Sessions Judge First Fast Track Special Court POCSO, Raipur District Raipur (C.G.), whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 363 of the IPC R.I. for 07 years with 7ne of Rs. 500/-, with default stipulation. U/s 366 of the IPC R.I. for 07 years with 7ne of Rs. 500/-, with default stipulation. U/s 5(L)/6 of the POCSO Act R.I. for 20 years with 7ne of Rs. 2000/-, with default stipulation. All the sentences were directed to run concurrently. 2. The prosecution case, in brief, is that on 04.07.2018, the father of the prosecutrix lodged a written report at Police Station Mana Camp, District Raipur, stating that his daughter, aged about 16 years and 7 months, had gone out on 03.07.2018 at around 10:00 PM with Ritesh Nishad, a resident near Railway Station Temri, and did not return home that night. On the following morning, i.e., 04.07.2018 3 at about 09:30 AM, the prosecutrix returned home along with Ritesh and stayed there for about half an hour. Thereafter, at around 10:00 AM, Ritesh again took the prosecutrix away from the house without informing her family. Despite search and enquiry in the nearby areas, the prosecutrix could not be traced. Based on the said report, Crime No. 148/2018 was registered against the accused at Police Station Mana Camp for the oBence punishable under Section 363 of the Indian Penal Code, and investigation was set in motion. During the course of investigation, the Investigating O&cer prepared a site map (spot map) and forwarded a requisition to the Tahsildar, Mana Camp, for preparation of the nazri naksha of the place of occurrence. The Headmaster of the school where the prosecutrix was studying was served with a requisition, and in compliance, he produced the admission and withdrawal register, which was seized in presence of witnesses. 3. Upon the recovery of the prosecutrix, she was produced 4 before witnesses, and a recovery memo (baramadgi panchnama) was prepared. The statements of the prosecutrix were recorded under Sections 161 and 164 of the Code of Criminal Procedure before the Magistrate. The statements of witnesses were recorded as per their versions. Both the prosecutrix and the accused were medically examined. 4. During investigation, it was revealed that the accused had enticed the minor prosecutrix with a promise of marriage and had repeatedly committed sexual intercourse with her, amounting to rape and aggravated penetrative sexual assault. The accused was thereafter arrested, and information of his arrest was duly communicated to his family members. Upon completion of investigation, a charge-sheet was 7led before the competent Court. 5. Subsequently, charges were framed against the accused for oBences punishable under Sections 363, 366, and 376(2)(n) of the Indian Penal Code and Sections 5(l)/6 of the Protection of Children from Sexual OBences Act, 2012 (POCSO Act). The charges were read over and explained to the accused, to which he pleaded not guilty and claimed to 5 be tried. 6. During his examination under Section 313 of the Code of Criminal Procedure, the accused denied all incriminating circumstances appearing against him and stated that he had been falsely implicated. However, the accused did not examine any witness in his defence. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 05.01.2024 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 7. Mr. C.R. Sahu, learned counsel for the appellant would submit that the impugned judgment of conviction and sentence passed by the learned trial court is illegal, perverse, and contrary to law, as the court below has failed to appreciate the evidence in its proper perspective. It is contended that the appellant has been falsely implicated in the case, as clearly explained by him in his statement under Section 313 Cr.P.C., which has not been properly considered. The learned trial court erred in relying upon the inconsistent 6 and contradictory statements of the prosecutrix recorded under Section 161 Cr.P.C. and her deposition before the court, without reconciling the material discrepancies therein. It is further argued that the prosecution has failed to establish the age of the prosecutrix beyond reasonable doubt, as reliance was wrongly placed on a doubtful school admission register of Class 7th, whereas no authentic documentary proof or birth certi7cate was produced, and the evidence of the headmaster itself renders the record unreliable. It is further submitted that the medical evidence and MLC report do not support the allegation of forcible sexual intercourse, and in the absence of an FSL report, the charge of rape under Section 376 IPC and Section 5(l)/6 of the POCSO Act remains unsubstantiated. The learned trial court ignored the contradictions, defence evidence, and the possibility of false implication arising from the enmity or motive of the prosecutrix and her family. Therefore, the conviction recorded against the appellant is unsustainable in law and on facts, and the appellant deserves to be acquitted of all the charges. 8. On the other hand, Mr. Nitansh Jaiswal, learned Panel 7 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 oBence and the trial Court has rightly convicted and sentenced the appellant, as such, the criminal appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 10. The 7rst question for consideration would be, whether the trial Court is justi7ed in convicting the appellant for oBence under Section 363 of the IPC ? 11. The appellant has been convicted for oBence under Section 363 of the IPC, which is punishable for kidnapping. Kidnapping has been de7ned 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 de7nes kidnapping from lawful guardianship which states as under:- 8 “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 9 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. 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:- “It would, however, be su&cient 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 1 AIR 1965 SC 942 10 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 ful*llment 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”. 14. Reverting to the facts of the present case in light of ingredients of oBence 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), upon a careful consideration of the evidence, particularly the testimony of the prosecutrix, this Court is of the view that the oBence under Section 363 IPC is not made out. From the testimony of the prosecutrix, particularly her cross-examination in paragraphs 8 to 11, it clearly emerges that she had voluntarily accompanied the appellant. She admitted that she and the accused had gone to Purkhouti Muktangan without informing her family, and when her father scolded her for it, she became angry, left the house on her own, and 11 called the accused, who later came to meet her. She further admitted that on 04.07.2018 she went with the accused at the instance of her maternal grandparents and that at Rajnandgaon they stayed at the house of the accused’s uncle and slept separately. These admissions collectively indicate that the prosecutrix was not taken away by force or deceit but had gone with the appellant of her own volition, thereby negating the allegation of kidnapping or abduction. 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 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 unjusti7ed in convicting the appellant for oBence under Section 363 of the IPC. 15. The next question for consideration would be, whether the trial Court is justi7ed in convicting the appellant for oBence 12 under Section 366 of the IPC ? 16. Bare perusal of the evidence of the victim girl, it appears that victim girl voluntarily accompanied the accused without being enticed or inLuenced. Mere accompanying a person without being induced does not constitute an oBence 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 oBence 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 prosecution has failed to prove the ingredients of oBence under Section 366 of the IPC. 17. Now the question arises before this Court whether the victim was minor on the date of incident or not? 18. The Victim (PW1) in her deposition has stated that her date 13 of birth is 24.11.2001 (PW-2) father of the prosecutrix has stated that prosecutrix is his daughter, whose date of birth is 24.11.2001. 19. (PW-4), The Headmistress stated that she had been serving as the In-charge Headmistress of the school since the year 2015. She deposed that she had produced the original Dakhil-Kharij Register of the school, which contained entries. In the said register, at entry number 6091, the name of the victim student along with names of her parents, caste, date of birth recorded as 24.11.2001, date of admission as 20.06.2013, and the class of admission as Class VII were entered. She admitted that the entries in Exhibit P-11 were not in her handwriting and that the register did not mention the basis or the documents upon which the date of birth of the victim was recorded. 20. 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. 21. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 14 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: "40.Undoubtedly, the transfer certi7cate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certi7cate, 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 certi7cate 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 certi7cate 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 15 proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot 16 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 certi7cate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certi7cate can not be relied upon to de7nitely 7x 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 7led on the ground that the plaintiB being a minor he was not appropriately represented therein 17 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 diBerent standard can be applied in case of an accused as in a case of abduction or rape, or similar oBence 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." 22. 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 7led 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 7nding stating the age of the person as nearly as may be. 18 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 su&cient 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 diBerent 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 19 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 bene7t of the JJ Act, 2015 is made applicable to the juvenile in conLict 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 oBences. 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 o&cial document maintained in the discharge of o&cial duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certi7cate, 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. Ossi7cation Test cannot be the sole criterion for age determination and a mechanical view 20 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." 23. 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 certi7cate from the school or matriculation or equivalent certi7cate by the concerned examination board has to be 7rstly preferred in the absence of which the birth certi7cate 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 ossi7cation 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 certi7cate and not the date of birth certi7cate or matriculation or equivalent certi7cate was considered. Ex. C1, i.e., the school transfer certi7cate showed the date of birth of the victim as 11.07.1997. Signi7cantly, the transfer certi7cate 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 21 it had never relied upon. Furthermore, DW-3, the concerned Revenue O&cial (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 certi7cate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the oBence. 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 conLict 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 certi7cates, if available and in the absence whereof; (ii) the date of birth certi7cate from the school (other than a play school) 7rst attended; and in the absence whereof; (iii) the birth certi7cate 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 22 also provided that while determination was being made, bene7t 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 certi7cate from the school and the matriculation or equivalent certi7cate 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 certi7cate 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 signi7cant 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 certi7cate was given precedence and it was only in the event of the certi7cate not being available that the date of birth certi7cate from the school 7rst attended, could be obtained. In Section 94(2)(i) both the date of birth certi7cate from the school as well as the matriculation or equivalent certi7cate 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 23 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." 24. 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 proof regarding the date of birth of the victim, the 7nding 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 5(L)/ 6 of the POCSO Act is not made out. 25. 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, 2 AIR 1982 SC 1297 24 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 on two di9erent 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.” 26. Very recently in the matter of Tilku Alias Tilak Singh V. The State Of Uttarakhand, reported in 2025 INSC 226, the 25 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 *nding 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 o9ence 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: “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 o9ence of kidnapping. Here, we are not concerned with enticement but what we have to *nd 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 26 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 *nding 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 o&ce and got the agreement of marriage registered there (thinking that this was su&cient 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 di9erent places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and 27 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 *nd 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…….” 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.” 27. Now reverting back to the case of prosecution, it is evident 28 from the deposition of the Victim (PW1) that during the months of June and July, 2018, the accused expressed his aBection towards her, stating that he loved her and would keep her with him. He took her to Rajnandgaon and kept her at his uncle’s house for about two months. During that period, the accused subjected her to forcible sexual intercourse on one or two occasions. She further stated that thereafter, the accused took her to Mahasamund, where they resided in a rented house. Subsequently, he brought her to Raipur, stating that he would work there as a driver and both would stay together. While living at Raipur, the accused frequently threatened her to bring money, saying that if she failed to do so, he would abandon her. The prosecutrix deposed that, to maintain herself, she started performing in cultural programmes, during which she came in contact with another person, whom she later married. In cross-examination, the prosecutrix admitted that she and the accused had gone to Purkhouti Muktangan without informing her parents. Upon returning, her father had scolded her for leaving home without permission. Being annoyed by her father’s reprimand, she had left home in 29 anger and had called the accused, who came later. She admitted that on 04.07.2018, she had gone with the accused at the instance of her maternal grandparents (nana-nani). She also admitted that, at Rajnandgaon, she and the accused slept separately at the accused’s uncle’s house. She admitted that the accused worked as a painter and used to go out for work during the day and stated that though she remained alone at home during his absence, she had not complained to any neighbour about his conduct. She admitted that while they resided at Raipur, the accused worked as a driver and used to return home after intervals of two to four days. She admitted that through her participation in cultural programmes, she came in contact with her present husband, and they later got married. She admitted that her father had lodged a missing report at Police Station Mana Camp, and at that time, she was already married to her present husband and was pregnant with him. 28. Father of the victim (PW-2) has stated that on 04.07.2018, the accused, Ritesh Kumar, had enticed away his minor daughter and kept her with him for about two months. At that time, his daughter was below 18 years of age. 30 Thereafter, the accused abandoned her. The prosecutrix informed him later that the accused had molested her and subjected her to physical and mental cruelty. In cross-examination, he deposed that when his daughter appeared at the police station after about two years, she narrated the entire incident to him and also informed him that she had married another man. He added that by that time, she had already attained majority. He further stated that after appearing at the police station, his daughter did not return home, but went directly to her husband’s house. He stated that he was not aware that his parents-in-law had advised his daughter to go with the accused. He admitted that his daughter had gone to the accused’s house at night on that day and that she had returned the next morning with the accused on a motorcycle. He also admitted that his parents-in-law had advised her to go back with the accused, and she accordingly left. He con7rmed that he met his daughter at the police station about two years later. 29. From the overall appreciation of the evidence on record, it clearly emerges that the prosecutrix had voluntarily 31 accompanied the appellant. Her own testimony reveals that she was not taken by force but had left home in anger after being scolded by her father and subsequently called the appellant to meet her. She admitted that, during her stay with the appellant at Rajnandgaon and Mahasamund, she did not raise any alarm, make any complaint, or attempt to seek help from neighbours or the public, though she remained alone for long hours when the appellant went out for work. The evidence further shows that she and the appellant slept separately at the house of the appellant’s uncle, indicating absence of coercion or con7nement. Even while residing at Raipur, she continued to live freely and later started performing in cultural programmes of her own accord, through which she met another person whom she subsequently married and get pregnant. 30. The conduct of the prosecutrix, her prolonged voluntary companionship with the appellant without any resistance, and her subsequent marriage with another person as also pregnancy, collectively demonstrate that her association with the appellant was consensual and not the result of inducement, threat, or force. 32 31. The testimony of PW-2, father of the prosecutrix, also corroborates that the prosecutrix had returned home on the next morning with the appellant and again left with him on the advice of her grandparents, thereby negating the allegation of abduction. His statement further shows that the prosecutrix had attained majority and married another person by the time she reappeared before the police. 32. Accordingly, the prosecution evidence fails to establish beyond reasonable doubt that the appellant had kidnapped or sexually assaulted the prosecutrix against her will. The cumulative circumstances rather support the defence version that the prosecutrix had voluntarily accompanied and stayed with the appellant of her own free will. 33. Dr. (PW-3) has stated that on external examination, no injury, scratch, or mark of violence was found over the chest, breasts, or abdomen. The breasts and secondary sexual characters were well developed. The genital examination revealed healthy labia and vagina admitting two 7ngers easily. The doctor noted that the prosecutrix was pregnant at the time of examination, and accordingly, no vaginal slide could be prepared. The pregnancy test was found positive, 33 and the pregnancy test kit was sealed and handed over to the police. In her opinion, the prosecutrix was habituated to sexual intercourse, and since she was pregnant at the time of examination, no de7nite opinion regarding recent sexual assault could be given. 34. From the testimony of the prosecutrix and her father, it clearly appears that the prosecutrix had voluntarily accompanied the accused and stayed with him at diBerent places without any protest or complaint. Her own admission that she subsequently married another person and was pregnant from her husband at the time when her father lodged the missing report, completely demolishes the prosecution story of forcible sexual intercourse or kidnapping. The medical evidence (Ex. P-8) also reveals absence of any injury or sign of force and con7rms that the prosecutrix was pregnant and habituated to sexual intercourse, with no de7nite opinion possible regarding rape. 35. These circumstances, taken together, lead to the conclusion that the prosecutrix was a consenting party and was not subjected to any sexual act against her will. Her subsequent 34 conduct in marrying another man and leading a normal life further rules out any element of coercion. 36. Accordingly, the prosecution has failed to prove the charge of kidnapping or rape beyond reasonable doubt. The bene7t of doubt must therefore go to the accused, who is entitled to be acquitted of all charges. 37. As a fallout and consequence of the aforesaid legal analysis, the impugned judgment dated 05.01.2024 is hereby set aside. The accused / appellant is acquitted of the said charges levelled against him. 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. 38. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for 35 compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Shoaib