1 2025:CGHC:19780 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 88 of 2025 1 - Rahul Singh S/o Late Rajendra Singh Aged About 30 Years R/o Premnagar Podi P.S. Podi District - Koriya (Now M.C.B. ) Chhattisgarh ... Appellant versus 1 - State Of Chhattisgarh Through S.H.O. Police Station - Chirmiri District - M.C.B. (Chhattisgarh) ... Respondent(s) For Appellant : Mr. Pushkar Sinha, Advocate For Respondent(s) : Mr. Karan Kumar Bahrani, P.L. Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Order on board 30.04.2025. 1. The present appeal has been filed under Section 415 (2) of Bhartiya Nagrik Suraksha Sanhita, 2023 (in short “BNSS”) against the impugned judgment of conviction and sentence dated 24.07.2024 passed by learned Special Judge (Protection of Children from Sexual Offence Act) Chirmiri, Dist- Korea in Special Criminal Case No. 07/2023 whereby the appellant has been convicted and sentenced in the following manner:- S.No. Conviction sentence 1. U/s 363 of IPC. R.I. for three years and fine of Rs. 500/-, in SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.06.09 15:14:37 +0530 2 default of payment of fine, additional R.I. for 07 days. 2. U/s 366 of IPC. R.I. for 05 years and fine of Rs. 1000/-, in default of payment of fine, additional R.I. for 01 month. 3. U/s 4 of POCSO Act. R.I. for 10 years and fine of Rs. 2000/-, in default of payment of fine, additional R.I. for 02 months. 2. Brief facts of the case are that the father of the victim lodged a missing report on 21/03/2022 against the unknown person with the allegation that his minor daughter is missing since 20.03.2022 from his house and her whereabouts could not be traced out. He raised suspicion upon the appellant as he used to work with him and frequently visited to his house and when he had gone to his house, he too have not been found and his house was found locked. On the report made by the father of the victim (PW/3), the FIR (Ex-P/8) is registered for the offence under Section 363 of IPC against the unknown persons. During the investigation, the victim was recovered on 22.03.2022 from the Railway Station of Nagpur (Maharastra) from the possession of the appellant and recovery panchanama (Ex-P/1) was prepared in presence of the witnesses. The victim was sent for her medical examination to Community Health Centre, Chirmiri, Dist- Korea, where she was medically examined by PW-05 Dr. Vidyashree Tiwari, who after examining the victim, gave her medical report (Ex-P/10). While examining the victim, the doctor has not noticed any external injury over her body, her hymen was old raptured and opined that sexual intercourse has been taken place. Two slides of her vaginal swabs were prepared, sealed and handed over to the Police for its chemical examination. The spot map (Ex-P/02) was prepared by the Police and (Ex-P/09) was prepared by the Patwari. With respect to the age and date of birth of the victim, the Police has seized the high school certificate vide seizure memo (Ex-P/4). The appellant was arrested on 3 23.03.2022 and he too was sent for his medical examination to Govt. Hospital, Kudgawa, District Korea, where (PW-7) Dr. Manish Pratap Singh, who has examined him and gave report (Ex-P/21). After his examination, the doctor opined that the appellant is capable to perform sexual intercourse. The slides of the vaginal swab of the victim, underwear of the victim and semen slides and underwear of the appellant were sent for chemical examination to Regional FSL, Ambikapur, from where Report (Ex-P/20) was received and according to the FSL report, the semen and sperms were found on the send articles. The statement under Section 161 of the prosecution witnesses and statement under Section 164 of Cr.P.C. of the victim have also been recorded and after completion of usual investigation, charge-sheet was filed against the appellant for the offences under Section 363, 366, 376(2)(n) of IPC and Section of 4 & 6 of POCSO Act. 3. The learned trial Court has framed charge against the appellant for the offence under Section 363, 366, 376 (2)(n) and 376 (3) of IPC and Section 6 of POCSO Act. The appellant abjured his guilt and claimed trial. 4. In order to prove the charge, the prosecution has examined as many as 09 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him, plead innocence and has submitted that he has 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 convicted the appellant and sentenced him as mentioned in Para-1 of this judgment. Hence this appeal. 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses, which cannot be made basis to convict him for the alleged offences. There is no 4 legally admissible evidence produced by the prosecution with respect to the age and date of birth of the victim so as to hold that on the date of the incident she was minor and below 18 years of age. The prosecution has mainly relied upon the High School, which has not been proved in accordance with law and the basis on which the date of birth has been recorded in the school record have not been produced by the prosecution. He would further submit that the victim herself has admitted that her date of birth has recorded in the school record after reducing from the actual age and her parents have also not able to prove the age of the victim. There is no other records like birth certificate or Kotwari register or ossification text report of the victim to determine her age that on the date of incident, she was minor. He would further submit that the victim was a major girl, having love affair with the appellant and she herself eloped with him without raising any objection and without any protest. She had gone with the appellant up to Nagpur (Maharastra) and engaged in making consensual physical relation with the appellant. There is no injury found on the body of the victim and therefore, there is lack of cogent and clinching evidence against the appellant to convict him for the alleged offence of kidnapping and rape upon the victim and he is entitled for acquittal. 7. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omission or contradictions, the evidence of the prosecution witnesses are fully reliable and sufficient to hold the appellant guilty in the offence in question. The age of the victim has been proved by her High School Certificate which is admissible piece of evidence and as per the school record, the victim was minor on the date of incident. She was being allured and kidnapped by the appellant, who took her to Nagpur (Maharastra) and kept her away from her lawful guardianship and has committed rape upon 5 her. Making physical relation with the minor girl, does amount to offence of rape. The victim was recovered from the possession of the appellant from Nagpur and in the vaginal slides of the victim, semen and sperms were found which further supported the allegation made by the victim that she was subjected to rape by the appellant. There is sufficient evidence to convict the appellant for the alleged offence and the learned trial Court has rightly appreciated the evidence available on record and has convicted and sentenced the appellant which needs no interference and his appeal is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the record of the trial Court. 9. The first and foremost question arose for consideration in the case would be the age of of the victim, as to whether, on the date of incident she was minor or not. 10.The prosecution has mainly relied upon the High School Mark-Sheet of the victim (Article-A) which has been seized vide seizure memo (Ex-P/4). In which the date of birth of the victim is recorded as 09/07/2005. There is no school record has been produced by the prosecution and no any teacher of the school has been examined. 11.PW/2, the victim has stated in her evidence that her date of birth is 09.07.2005 and in cross-examination, she admitted in Para-3 that at the time of her admission in the school, her parents have got recorded her date of birth after reducing her age. She also admitted that she could not take admission in the Central School, therefore, she has got admitted in the Govt. School. 12.(PW/1), The mother of the victim has stated that the date of birth of the victim is 09/07/2005 and she is 17 years of age. The High School mark-sheet of the victim has been seized vide Seizure Memo (Ex-P/4) in which she is the witnessed. In cross-examination, she admitted that since 19 years back, she 6 has got married and after one year of her marriage the victim born. The victim has born at Chirmiri. She voluntarily stated that she has got prepared the birth certificate of all her children. She also admitted that she had not given the birth certificate of the victim to the Police. Her father in law had got prepared the birth certificate of the victim. The victim has got admitted in the school by her father in law. 13.PW/3, the father of the victim has stated that the date of birth of the victim is 09/07/2005 and his father has got her admitted in the school. In cross- examination, he denied that at the time of admission of the victim in the school, her birth certificate was not prepared. The birth certificate of the victim was not given to Police. He admitted that he did not know as to on what basis his father has disclosed the date of birth of the victim. The victim is his eldest daughter. He could not remember the date of birth of his other children. 14.The admissibility and evidentiary value of the school record and also the high school certificate has been considered by the Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, and 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:- 7 "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 Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his 8 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 victim 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." 15. 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 9 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 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." 10 16. 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 thedescription of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. 11 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 fromthe 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." 17.Reverting to the facts of the present case, except from the high school mark- sheet, no other evidence led by the prosecution to prove the age of the victim. The victim (PW/2) herself has stated that her parents have got recorded her date of birth in the school by reducing her age and the father of the victim (PW/3) has stated in his evidence that on what basis his father has got recorded the date of birth of the victim, he did not know. He further stated in para-6 of his cross-examination that he disclosed the date of birth on the basis of mark-sheet. From the evidence of (PW/1, 2 and 3), it reflects that the birth certificate of the victim was available with them but the same 12 has not been produced before the Police and therefore, in view of the evidence led by the prosecution, the oral evidence are not sufficient to hold that the victim was minor on the date of incident. The date of birth recorded in the mark-sheet of the victim has not been supported by any other school records. Particularly, when the correctness of the date of birth of the mark- sheet, itself is denied by the victim herself, therefore, this Court find that the prosecution could not be able to produce the cogent and clinching evidence with respect to the age of the victim to hold that she was minor on the date of incident. Yet the learned trial Court has held her minor. 18.So far as, the offence of kidnapping and rape are concerned, this Court again re-examined the evidence led by the prosecution. 19.(PW/2), the victim has stated in her evidence that she knew the appellant because he used to visit her house. The appellant proposed her that he will marry with her. In the moth of March, he took her to Baikunthpur on his motor cycle and from where they had gone to Annuppur by train and ultimately, they had gone to Nagpur (Maharastra). They stayed in hotel at Nagpur, there the appellant committed rape upon her. The appellant has committed rape upon her previously also on 1-2 occasion. The Police has recovered her from the possession of the appellant. In cross-examination, she admitted that she knew the appellant since 2-3 years. Her father has not raised any objection on visiting the appellant in his house. A month before the date of incident, the appellant proposed the victim that he would marry with her. She admitted that she has not disclosed the proposal made by the appellant to her parents. At the time when the appellant made physical relation with her in her house, her parents were not there in the house. Whenever her parents had gone outside of the house, she informed it to the appellant and after coming into knowledge that she is alone in the house, he used to come and made physical relation with her. In her 164 of Cr.P.C. statement she has not disclosed the earlier physical relation with the appellant. She further admitted 13 in her evidence that her house is adjoining to the other houses. She voluntarily stated that 2-3 days before the date of incident She had a telephonic call through the mobile phone of her father and they settled to left the house. She admitted that she has not informed anyone of her family members about leaving of her house. She on her own had left the house. She admitted that they had gone to Maharastra by train and they changed the train in 3-4 places. Whenever, the appellant had gone to take railway tickets, she was alone in the railway station but she has not tried to flew from the place. She also stated that the railway station is the very busy place, she has not made complaint to anyone, even in the Auto in which they came to hotel from the railway station, she has not made any complaint to anyone. Even in the hotel where they stayed, she has not disclosed about any incident with her. When the Police took them from Nagpur, she disclosed the incident to her parents. She also admitted that she has not received any injuries on her body. She admitted that her parents were no liking the appellant. She left her house on her own and if her family member would woke-up, she would not be able to came out from her house. From the evidence of the victim, it is quite vivid that she on her own will left her house and had gone with the appellant to Nagpur by train and on the way from her village to Nagpur, she has not made any complaint to anyone and has not raised any objection. Even while making physical relation by the appellant with her, she has not protested or had not flew from the clutches of the appellant. There is no sign of any protest in her body and there is no allegation that she raised any alarm or informed any person about the incident or even the incident of kidnapping by the appellant. 20.In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon'ble Supreme Court has considered the taking and allowing a minor to accompany a person and has held in Para 9 and Para 10 of its judgment that:- 14 “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 circumstance can the two be regarded as meaning the same thing for the purposes of 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 fulfillment 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". 21.PW/1, the mother of the victim has stated in her evidence that when the victim was missing from her house, they started searching her and had gone to the house of the appellant but the appellant was also not found in his house. They lodged missing report to the Police and thereafter, her daughter was found in the hotel at Nagpur (Maharastra) along with the appellant. When she was being taken back, she disclosed about the incident. In cross- examination she admitted that the appellant used to come to her house and her daughter was also used to talk with him. They have not seen them in any objectionable condition nor the victim disclosed about any incident with her. She admitted that her husband and the appellant were working together from which he used to come to her house. She also admitted that the appellant has not proposed before them that he wanted to marry with the victim. On 15 the date of incident, they were sleeping in their house, after closing the door from inside. The appellant did not come inside of her house on the alleged date of incident and her daughter herself had gone outside of the house. She further admitted that in the hotel at Nagpur her daughter has not informed about the incident of rape and she disclosed about the incident of rape after coming back to her village. She admitted that she was not liking the appellant. 22.PW/3, the father of the victim is also the witness of the same nature as the mother of the victim. He too has stated in his evidence that he lodged the missing report (Ex-P/8) and his daughter was recovered from Nagpur from the possession of the appellant. When his daughter was brought back from Nagpur, she disclosed the incident to her mother. In cross-examination, he stated that he did not know as to whether his daughter was in love affair with the appellant or not. He admitted that his daughter was regularly talked with the appellant and the appellant and his mother are used to reside in his house as the family members. He admitted that his daughter has not informed him about any incident with her. 23.PW/5, Dr. Vijayshree Tiwari who medically examined the victim has not found any external injuries on her body and opined that there is no sign of any protest. 24.From all these evidences and the conduct of the victim clearly demonstrated that the victim was in love affair with the appellant and she was on her own will eloped with him, both of them had gone to Nagpur by train and she engaged in making physical relation with the appellant without any protest or objection. When the victim was not found to be minor on the date of incident, no offence of rape is appears to be made out against the appellant as the victim was engaged in making consensual physical relation with the appellant. 16 25.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 appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 26.From the close scrutiny makes it clear that the prosecution could not able to prove the alleged offence against the appellant that the victim was kidnapped/ abducted by the appellant and he committed penetrative sexual assault/ rape upon the victim, whereas it is found that the victim herself had gone with the appellant on her own will and engaged in making consensual physical relation with him. Although, the FSL report (Ex-P/20), the semen and sperms were found in the vaginal slides of the victim but in view of the fact that the victim was engaged in making consensual physical relation with the appellant, the FSL report would not have any merit in the case. Therefore, no offence of either kidnapping/ abduction or rape/ penetrative sexual assault is not proved against the appellant and he in entitled for benefit of doubt. 27.In the result the appeal is Allowed. The impugned judgment of conviction and sentences passed against the appellant are set aside. The appellant is acquitted from all the charges. The appellant is reported to be in jail since 24/07/2024. He be released forthwith if not required in any other case. 17 28.The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge sagrika