-1- 2025:CGHC:8752 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 118 of 2016 1 - Ajay S/o Rajaram Panika, Aged About 32 Years, R/o Village Parasgadi, Police Station Manendragadh, District Koria, Civil and Rev. District Koria, Chhattisgarh., Chhattisgarh 2 - Sanjay S/o Mansai, Aged About 30 Years, Caste Panika, R/o Ward No. 9, Mahalpara Cher, Police Station Baikunthpur, District Koria, Chhattisgarh., District : Koriya (Baikunthpur), Chhattisgarh ... Appellants versus 1 - The State of Chhattisgarh Through Police Station Manendragadh, District Koria, Chhattisgarh., Chhattisgarh ---- Respondent (Cause-title taken from Case Information System) ____ For Appellants : Mr. Divyanand Patel, Advocate. For State/Respondent : Mr. R.C.S. Dev, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal Order on Board 18-02-2025 1. The present appeal has been filed under Section 374(2) of the Cr.P.C. against the impugned judgment of conviction and sentence dated 30-07- 2015 passed by learned Additional Session Judge (Fast Track) Baikunthpur, District Koriya (C.G.) in Session Case No. 84/2013 whereby the appellants have been convicted and sentenced in the following manner with a direction to run all the jail sentences concurrently:- For Appellant No.1 Ajay:- S.No. Conviction Sentence 1. U/s 363/34 of the IPC R.I. for 4 years and fine of Rs. 5,000/- in default of fine additional S.I. for 6 months Digitally signed by MOHAMMAD AADIL KHAN -2- 2. U/s 366/34 of IPC R.I. for 4 years and fine of Rs. 5,000/- in default of fine additional S.I. for 6 months For Appellant No.2 Sanjay :- S.No. Conviction Sentence 1. U/s 363 of the IPC R.I. for 4 years and fine of Rs. 5,000/- in default of fine additional S.I. for 6 months 2. U/s 366 of IPC R.I. for 4 years and fine of Rs. 5,000/- in default of fine additional S.I. for 6 months 3. U/s 8 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) R.I. for 3 years and fine of Rs. 5,000/- in default of fine additional S.I. for 6 months 2. Brief facts of the case are that on 25-02-2013 at about 10:00 p.m., the appellants kidnapped the minor victim from her house and took her to village Parasgarhi. On the next day the appellant No.2 Sanjay took her to Jashpur by his motorcycle and kept there in a rented house for about two months and on the pretext of marriage committed rape upon her. Thereafter, he left her to village Salaka, Baikunthpur and went back to his own house. On 30-04-2013 the victim came back to her house and informed the incident to her parents. On the report made by the victim FIR Ex.-P/6 was registered at Police Station Manendragarh, District Koriya for the offence under Section 363, 366, 376, 34 of the IPC against the appellants. The victim was sent for her medical examination to Govt. Hospital Manendragarh where she was medically examined by PW-6 Doctor Archan Kumhare who gave her report Ex.-P/4. While medically examining the victim the doctor has not found any external injuries on her body and opined that sign of sexual intercourse found (habitual). Two slides of vaginal smear were prepared, sealed and handed over to the appellant for its chemical examination. The victim was referred for her X- ray examination to determine her age. Spot map Ex.-P/7 was prepared by the police and Ex.-P/8 was prepared by the Patwari. Earlier when the -3- victim was missing from her house in the intervening night of 25 and 26- 02-2013 her mother PW-3 lodged a missing report Ex.-P/13 and her recovery panchnama Ex.-P/14 was prepared on 02-05-2013 in presence of witnesses and thereafter, on her report the FIR Ex.-P/6 was lodged. With respect to age and date of birth of the victim primary school mark sheet has been seized vide seizure memo Ex.-P/16 and her primary school mark sheet is Ex.-P/16A. The school register Article A has also been seized from AJAK Govt. Primary School Barkela. Appellant Ajay was arrested on 03-05-2013. The statement under Section 161 of the Cr.P.C. of the witnesses have been recorded and statement of the victim under Section 164 of the Cr.P.C. has also been recorded and after completion of the investigation, charge-sheet was filed against appellant Ajay for the offence under Sections 363, 366, 376, 34 of IPC and under Section 4 of POCSO Act before the learned Judicial Magistrate First Class Manendragarh showing appellant Sanjay absconding. The case was committed to the Court of learned Sessions Judge, Koriya, Baikunthpur from where the same was transferred to the learned trial Court for its trial. 3. The learned trial Court has framed the charges under Sections 363/34, 366/34 of IPC against appellant Ajay vide order dated 04-01-2014. On 08- 05-2014 in pursuance of the the permanent warrant of arrest issued against co-accused/appellant Sanjay he has been arrested and produced on 08-05-2014 before the learned Judicial Magistrate First Class Manendragarh and his case has also been committed to the learned trial Court for its trial and then vide order dated 26-06-2014 the case of appellant Sanjay was consolidated with the case of appellant Ajay and the charge against appellant Sanjay was framed for the offence under Section 363, 366, 376(2)(n) of the IPC and Section 5(l)/6 of POCSO Act. He denied the charge and claimed for trial and thereafter, the trial of the case against both the accused/appellants were proceed together. -4- 4. In order to proved the charge against the accused persons/appellants, the prosecution has examined as many as 13 witnesses. Statement of the accused persons under Section 313 of Cr.P.C. have also been recorded in which they denied the circumstances appearing against them, pleaded innocence and submitted that they have been falsely implicated in the offence. 5. After appreciation of oral as well as documentary evidence led by the prosecution the learned trial Court has acquitted appellant Sanjay from offence under Section 376(2)(n) read with Section 6 of POCSO Act. However, he has been convicted for the offence under section 363, 366 of the IPC and Section 8 of POCSO Act. Appellant Ajay has been convicted for the offence under Section 363/34, 366/34 of the IPC and the appellants have been sentenced as mentioned in the earlier part of this judgment. Hence this appeal. 6. Learned counsel for the appellants would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict the appellants for the offence in question. There is no legally admissible evidence with respect to the age of the victim that she was minor on the date of the incident. The school register Article A as well as primary school mark sheet is not sufficient to prove the age of the victim that she was minor. The said school register and primary school mark sheet has not been proved by the prosecution in accordance with law. Further, the victim had gone with appellant Sanjay without any protest or objection and resided with him for a considerable period and therefore, there is no offence of kidnapping or procuring minor girl is proved by the prosecution, yet the learned trial Court has convicted and sentenced the appellants for offence under Section 363 and 366 of the IPC and appellant Sanjay has also been convicted for the offence -5- under Section 8 of POCSO Act. From the evidence of the victim PW-2, it is quite vivid that she on her own will had gone with the appellants. There is no allegation of any sexual assault with her by appellant Sanjay, yet the appellant Sanjay has been convicted for offence under Section 8 of POCSO Act which is erroneous and the appellants are entitled for acquittal. 7. On the other hand, learned State counsel opposes the submission advanced by the learned counsel for the appellants and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions the evidence of prosecution witnesses are fully reliable and their evidence are sufficient to convict the appellants for offence in question. The age of the victim has been proved by the prosecution from the school record and she was found to be minor on the date of incident. She was subjected to kidnapping by the appellants and kept away from her lawful guardianship. Therefore, the appellants are rightly convicted by the learned trial Court which needs no interference. 8. I have heard learned counsel for the parties and perused the record of the trial Court. 9. The first and foremost question arises in the case would be as to whether the victim was minor on the date of incident or not. 10. The learned trial Court after relying upon the school register Article A as well as her primary school mark sheet Ex.-P/16A found the age of the victim proved that she was minor and less than 18 years of age on the date of incident. The said school register is sought to be proved by PW-4 who is Assistant Teacher Panchayat. He stated in his evidence that he is Assistant Teacher Panchayat in the school since 2009 and presently working as In-charge Head Master. He brought the original register with him with respect to the date of birth of the victim which is Article A. As per the school register the date of birth of the victim is 03-04-1998. In cross- -6- examination he admitted that at the time when the victim was admitted in the school he was not there. He also admitted that he is not the author of the school register. He further stated that he does not know as to who had come to the school for her admission and what document was produced at the time of her admission. 11. The admissibility and evidentiary value of school register has 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. 12. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, (supra) the Hon’ble 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 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 -7- otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in 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 transfercertificate 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 have to apply the same standard. No different standard can be applied in case of an -8- accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 13. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under : “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXX 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 -9- per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person -10- 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.” 14. In case of P. Yuvaprakash Vs. State represented by Inspector of Police, reported in 2023 (SCC Online) SC 846, Hon’ble Supreme Court has held in para 14 to 17 as under : “14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. 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: -11- “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. -12- 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.” 15. The victim PW-2 has not stated any date of her birth and in para 2 of her examination-in-chief she stated that she does not know her date of birth and at the time of her admission in the school what date of her birth is recorded she does not know. 16. PW-3 mother of the victim has stated in her evidence that she does not know the year of birth of her daughter. The victim is presently aged about 16 years. In cross-examination she stated that the date of birth of her daughter is recorded in the school on assumption. From her evidence also the age of the victim has not been proved that she was minor or less than 18 years of age on the date of incident. Further, PW-1 who is father of the victim has also not stated any date of birth of the victim, but he has stated that she was aged about 15 years. No other evidence with respect to the age of the victim has been proved by the prosecution to prove her age and from evidence of these witnesses it is difficult to hold that the victim was minor or less than 18 years of age, yet the learned trial Court has held her minor. 17. So far as offence of kidnapping and sexual assault are concerned, I again examine the evidence of the victim PW-2. 18. She stated in her evidence that on the date of incident at about 10:00 p.m. when she was in her house appellant Sanjay came there, called her from outside of her house and then she was abducted by the appellants. Appellant Ajay was driving the motorcycle and appellant Sanjay sat her on the middle and behind her appellant Sanjay sat in the motorcycle. Both of them took her to village Parasgarhi, from where Ajay returned back to his house. Appellant Sanjay took her to Jashpur. In the night they stayed in a -13- house, but she could not aware whose house was that and in the next morning they had gone to Jashpur. She stayed at Jashpur with appellant Sanjay, but she could not know as to whose house was that and who was the owner of that house. She further stated that the house where she stayed with the appellant Sanjay both of them were sleeping separately, she was sleeping in a room and appellant Sanjay was sleeping in another room. She stayed there about a month and thereafter she came to Manendragarh to her brother, but as her brother was not present there, she returned back to village Barkela to her parents and informed the incident that she was kidnapped by the appellants. She specifically stated that the appellant did not do anything with her. In cross-examination also she specifically denied any sexual assault made by appellant Sanjay with her. She further stated that appellant Sanjay is her real brother-in-law. While going with him she had stayed on various places and taken food at various places. In the police station she also disclosed that she had gone with appellant Sanjay to visit places and appellant Sanjay had never committed any wrong with her nor committed any forceful act with her. Appellant Ajay is also her brother in relation and she often used to stay in the house of appellant Ajay also as his parents are her uncle and aunt. 19. PW-1 father of the victim has turned hostile and not supported the prosecution case. He stated in evidence that when his daughter came back to his house she has not disclosed anything to him. 20. PW-3 is mother of the victim, has stated in her evidence that when the victim was missing she lodged missing report to police. She too has stated that she has not disclosed to the police about rape upon her daughter. She further stated that she disclosed to the police that appellant Sanjay had committed rape upon her daughter for about 1 and 1 ½ month. She has been declared hostile. In cross-examination she stated that her daughter has not informed as to with whom she had gone on that day and -14- when she returned back to her house her daughter had disclosed that she stayed with appellant Sanjay. 21. PW-6 Doctor Archan Kumhare who medically examined the victim has not found any external injury on her body and no sign of any recent sexual intercourse was found, though the victim was found habitual to sexual intercourse. 22. PW-8 is sister-in-law of the victim, she stated in her evidence that appellant Sanjay had kidnapped her sister-in-law who was there with him for about 2-3 months and when she returned back to her house she disclosed that appellant Sanjay took her with him and committed rape with her. In cross-examination she admitted that the victim has not disclosed about the incident to her. In her cross-examination she denied her police statement. She further stated that appellant Ajay is her brother-in-law in relation. 23. From all these evidence, it is quite vivid that the victim on her own will had gone to with appellants Sanjay and Ajay without raising any objection or without making any protest. She stayed with appellant Sanjay and has not made any complaint to anyone even she has not made any complaint and has not made any statement that she was subjected to sexuaul assault by appellant Sanjay, but she specifically stated that appellant Sanjay did nothing with her. The prosecution could not establish the fact that she was minor and less than 18 years of age on the date of incident. 24. In the matter of S. Varadarajan Vs. State of Madras, reported in AIR 1965 SC 942, the Hon'ble Supreme Court has 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 -15- 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 -16- out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.” 25. When the victim was not found to be minor, she herself had gone with appellant Sanajy and Ajay who are her relatives as she stated in her evidence that appellant Sanajy is her real brother-in-law and appellant Ajay is her cousin brother, it cannot be said that the appellants abducted/kidnapped her and kept her away from her lawful guardianship. Therefore, it is very difficult to hold conviction of the appellants for the offence under Section 363 and 366 of the IPC. 26. So far as conviction of appellant Sanjay under Section 8 of POCSO Act is concerned, Section 8 of POCSO Act provides punishment for sexual assault to a minor victim. The sexual assault has been defined in Section 7 of POCSO Act. In the present case the victim has not been found to be minor and further, there is no allegation that she was sexually assaulted by appellant Sanjay, therefore, in absence of any ingredient as provided under Section 7 of POCSO Act conviction of appellant under Section 8 of POCSO Act also cannot be sustained. 27. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. 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 levelled against the appellants beyond any -17- reasonable doubt, which the prosecution has failed to do in the instant case. 28. Considering the entire facts and circumstances of the case and the evidence produced by the prosecution the guilt of the appellants has not been proved beyond reasonable doubt against the appellants. Accordingly, their conviction and sentence are liable to be set aside. Therefore, the appeal filed by the appellants is Allowed. The judgment of conviction and sentence passed against the appellants are hereby set aside. The appellants are acquitted from the alleged offences. The appellants are reported to be on bail. Their bail bonds shall continue for a further period of six months as provided under Section 481 of BNSS, 2023. 29. The record of the trial Court along with copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Aadil