1 2025:CGHC:50817-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1554 of 2018 Vinod Kumar Yadav S/o Chandru Yadav Aged About 21 Years R/o Village- Pirda, Chowki- Kadarka, Police Station- Berla, District- Bemetara, Chhattisgarh. ... Appellant versus State of Chhattisgarh Through Arakshi Centre, Berla, District- Bemetara, Chhattisgarh. ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Vivek Sharma, Advocate For Respondent/State : Mr. Ashish Shukla, Additional Advocate General Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Amitendra Kishore Prasad, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 13.10.2025 1. Heard Mr. Vivek Sharma, learned counsel, appearing on behalf of the appellant as well as Mr. Ashish Shukla, learned Additional Advocate General, appearing on behalf of the State/respondent. 2. This appeal is directed against the judgment of conviction and order of sentence dated 28.09.2018 passed by the Special Judge YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.10.14 11:40:44 +0530 2 under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bemetara, District Bemetara (C.G.) in Special Case (Atrocity) No.10/2017 whereby the appellant has been convicted and sentenced as under :- Conviction Sentence Under Section 366 of the Indian Penal Code, 1860 : Rigorous imprisonment for 10 years and fine of Rs.100/-, in default of payment of fine, additional imprisonment for three months. Under Section 376 of the Indian Penal Code, 1860 read with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 5(B) read with Section 5(´)(ii) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 : Life imprisonment with fine of Rs.100/-, in default of payment of fine amount, additional imprisonment for three months. (Both the sentences were directed to run concurrently) 3. The prosecution case, in brief, is that the complainant was a resident of Pirda village belonging to the Satnami caste, has a daughter, the prosecutrix, who was about 17 years old at the time. On 10.11.2016, she left home and was taken away by the accused, who lived nearby. Her father filed an FIR on 11.11.2016 at Kandarka police post, and a case under Section 363 IPC (Case No. 352/16) was registered at Berla police station. 3 4. During investigation, it was found that the prosecutrix was in Pune, Maharashtra, with the accused. She stated that she and the accused had developed a love affair while in school, and without her parents’ consent, she left home with him. The accused married her in Dehur village, and thereafter, while living and working near Talegaon, he repeatedly raped her, resulting in pregnancy. 5. During the course of investigation, First Information Report has been lodged vide Ex.P/1, crime details form has been prepared vide Ex.P/2. Spot map and panchnama were prepared vide Ex.P/3 and Ex.P/4, respectively. Consent for medical examination of the victim has been taken vide Exs.P/16 & P/17. Summons under Section 175 Cr.P.C. has been given to the witnesses vide Ex.P/7 and inquest report has been prepared vide Ex.P/8. High School certificate of the prosecutrix has been seized vide Ex.P/9, a copy of which is annexed as Ex.P/10. Caste certificate of the victim has been seized vide Ex.P/12, a copy of which has been annexed as Ex.P/13. Dead fetus of victim has been seized for DNA testing vide Ex.P/15. Clothes of the victim has been seized vide Ex.P/18, underwear of the appellant has been seized vide Ex.P/19. E.D.T.A. Vial of the victim and appellant has been seized vide Ex.P/20 for DNA analysis. Dakhil-kharij register of Government Primary School, Pirda has been seized vide Ex.P/21 to determine the age of the victim, a copy of which has been annexed as Ex.P/24C. Medical examination of the victim has 4 been conducted by Dr. Anamika Minj (PW-12), who gave its report vide Ex.P/25. Query report regarding white patch on the petticoat of the victim has been prepared vide Ex.P/26. 6. The First Information Report was registered vide Ex.P/29 and unnatural death under Section 174 Cr.P.C. has been registered vide Ex.P/30 of fetus of 15 weeks 4 days pregnant MTP. Merg intimation was lodged vide Ex.P/31 and memo of permission to DNA was prepared vide Ex.P/35 as well as permission to DNA was sought vide Ex.P/36. The seized article (fetus) was sent for its chemical examination to the Forensic Science Laboratory, Raipur, but the FSL report received states that as the samples were preserved in “Formalin”, as such the DNA cannot be obtained because the fetus which was preserved in Formalin disrupt the testing of the sample. Accordingly, DNA sample was returned vide memo dated 27.09.2017. The postmortem report of the fetus has been annexed as Ex.P/42. 7. The prosecution relies on documents including the prosecutrix’s school certificate showing her date of birth as 12.12.1999, her social status certificate, mutation register, medical examination reports, clothes of the accused and prosecutrix, witness statements, and recovery panchnama. 8. Statements under Section 161 of the Cr.P.C. of the witnesses were recorded by the police. After completion of investigation, charge-sheet was filed before the Court of Special Judge under 5 Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bemetara District Bemetara (C.G.) for the commission of offence punishable under Sections 363, 366(A) and 376 of the Indian Penal Code, 1860 (for short, ‘IPC’), Sections 5(B) 5(´)(2), 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and Section 3(1)(c)(2), 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘Atrocity Act’). 9. The trial Court has framed charges under Sections 366 of the IPC as well as Section 376 of the IPC read with Section 3(2)(v) of the Atrocity Act and Section 5(B) read with Section 5(´)(ii) read with Section 6 of the POCSO Act. 10. During trial, the prosecution has examined as many as 19 witnesses as PW-1 to PW-19 and exhibited 42 documents Ex. P/1 to Ex.P/42. In order to prove the defence, appellant neither examined any witness nor exhibited any document in support of his case. 11. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the second paragraph of this judgment. Hence this appeal. 12. Learned counsel for the appellant submits that the evidence of the prosecutrix (PW-3) clearly establishes that the present case is one of consent. It is contended that the prosecutrix had voluntarily 6 gone along with the appellant of her own free will, and subsequently, she entered into a marriage with the appellant and began living with him as husband and wife. Learned counsel further argues that the evidence regarding the age of the prosecutrix is highly doubtful and cannot be relied upon. He points out that the school record, which forms the primary basis for ascertaining her date of birth, lacks proper authentication and the circumstances under which the date was recorded have not been disclosed. Moreover, the testimony of the prosecutrix’s father and mother is inconsistent with the date mentioned in the school record, creating a clear discrepancy regarding her actual age. Therefore, it is submitted that the prosecution has failed to conclusively prove that the prosecutrix was a minor at the relevant time, and the presumption of consent cannot be disregarded in the facts of this case. 13. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that having regard to the school record, the prosecutrix’s date of birth, though showing minor variances as mentioned by her parents, clearly indicates that she was less than 18 years of age at the relevant time. He contends that, in view of her minority, the question of consent is legally irrelevant, as a person below 18 years cannot legally give valid consent under the provisions of the Indian Penal Code. It is further submitted that even assuming, for the sake of argument, that the prosecutrix 7 voluntarily eloped with the appellant, such elopement does not absolve him of criminal liability. The learned State counsel emphasizes that the conviction has, therefore, been rightly recorded, having regard to the provisions of law protecting minors from sexual exploitation, and the same does not warrant interference. He lastly submits that the learned trial Court has absolutely justified in passing the judgment of conviction and sentence against the appellant, which does not require for any interference. 14. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 15. The first and foremost question arose for the consideration would be whether the prosecutrix was minor and less than 18 years of age on the date of incident or not ? 16. In order to consider the age of the prosecutrix, we have examined the evidence available on record. The prosecution has mainly relied upon the mark-sheet of High School (Ex.P/10) Dakhil-kharij Register (Ex.P/24C), statements of father of the prosecutrix (PW- 1), mother of the prosecutrix (PW-2), prosecutrix herself (PW-3) and Goverdhan Das Sahu (PW-8), Headmaster of Government Primary School, Pirda. According to the mark-sheet of Higher Secondary School (Ex.P/10), the date of birth of the prosecutrix is 12.12.1999 and Dakhil-kharij Register (Ex.P/24C), the date of birth of the prosecutrix is 21.12.1999. 8 17. The father of the prosecutrix (PW-1) has deposed in his evidence that the date of birth of his daughter i.e. victim was 12.12.1999 and he has produced the High School Open Certificate of his daughter vide Ex.P/10, according to which, her date of birth was 12.12.1999. 18. In cross-examination, PW-1, father of the prosecutrix, deposed that the police had confiscated marksheet of his daughter and questioned him about her date of birth. He stated that the date was recorded at the time of her admission, based on the Kotwari register, though her registration number was missing. He denied giving the date himself and did not recall her exact age at admission. The date of birth had been written on a piece of paper for enrollment, which he signed, but he did not show it to the police and was unsure if the teacher also signed. 19. Mother of the prosecutrix (PW-2) has deposed that her daughter i.e. the victim was passed the X standard by Open School and her date of birth is 12.12, but she did not remember the year of her birth. In cross-examination, PW-2, mother of the prosecutrix, has deposed that when the defence suggested that Varsha’s date of birth was 12.12 without specifying the year, she was asked whether the year could be 1997, 1998, 1999, or 2000; she replied that the year of birth was 2099. When informed about the year 2099, she stated that the date then was 3 January 2017, and upon further questioning, she mentioned the year as 2018. When 9 asked again about victim’s year of birth, she deposed that she did not remember it for sure. 20. Prosecutrix herself (PW-3) has deposed that her date of birth is 12.12.1999. In cross-examination, the victim has admitted that she has stated her date of birth as 12.12.1999, based on her studies and the date mentioned in her mark-sheet. She further admitted that she cannot say who wrote her date of birth in the mark-sheet or on what basis it was recorded. 21. Goverdhan Das Sahu (PW-8), Headmaster of Government Primary School, Pirda, has deposed that as per Serial No.12 of the Dakhil-kharij Register, the date of birth of the prosecutrix is 21.12.1999. In cross-examination, he admitted that the admission register does not contain any details regarding the basis on which the date of birth of the victim, recorded as 21.12.1999, was entered. He further admitted that he cannot explain on what basis such date of birth was recorded in the register. 22. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the prosecutrix so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school Dakhil-kharij register, it would not be safe to hold that the prosecutrix was minor on the date of incident. The statements of father of prosecutrix (PW-1), 10 mother of the prosecutrix (PW-2), prosecutrix herself (PW-3), as also the statement of Goverdhan Das Sahu (PW-8), Headmaster of Government Primary School, Pirda are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the prosecutrix is 12.12.1999 or 21.12.1999. 23. Very recently, the Hon’ble Supreme Court in the matter of Birka Shiva v. State of Telangana, 2025 SCC OnLine SC 1454 has observed as under: "8. The evidentiary value of such an entry made in public or official registers may be admissible in evidence under Section 35 of the Indian Evidence Act, 1872. However, admissibility is distinct from probative value. While such documents may be admitted into evidence, their evidentiary weight depends on proof of their authenticity and the source of the underlying information. Mere production and marking of a document as exhibited by the Court does not amount to proof of its contents. Its execution has to be proved by leading substantive evidence, that is, by the ‘evidence of those persons who can vouchsafe for Hereinafter referred to as the ‘Evidence Act’ the truth of the facts in issue’. [See: Narbada Devi Gupta v. Birendra Kumar Jaiswal] We may refer to a few judicial pronouncements of this Court in this regard: 8.1. This Court, in Birad Mal Singhvi v. Anand Purohit, held that the entries contained in the school register are relevant and admissible but have no probative value unless the person who made the entry or provided the date of birth is examined. It was observed: “14. … If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. … 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. The entry contained in the 11 admission form or the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value, but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. … 15. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to the date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. … The courts have consistently held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined…" (Emphasis Supplied) This decision has been consistently followed by this Court in Pratap Singh v. State of Jharkhand; Babloo Pasi v. State of Jharkhand; Murugan v. State of T.N.; State of M.P. v. Munna; C. Doddanarayana Reddy v. C. Jayarama Reddy; and Manak Chand v. State of Haryana. 8.2. A coordinate Bench of this Court in State of Chhattisgarh v. Lekhram, through S.B. Sinha, J., clarified that though entries in school registers are 12 admissible under Section 35 of the Evidence Act, their evidentiary value improves only when corroborated by oral testimony of persons who are aware of its content, such as parents or the person who made the entry at the time of admission. It held as under: “12. A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. PW 5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth. The father of the prosecutrix also deposed to the said effect. 13. …The materials on record as regards the age of the prosecutrix were, therefore, required to be considered in the aforementioned backdrop. It may be true that an entry in the school register is not conclusive, but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix." 8.3. Similarly, this Court in Satpal Singh v. State of Haryana, stated that though a document may be admissible, but to determine whether the entry contained therein has any probative value, may still be required to be examined in the facts and circumstances of a particular case. It held as follows: “26. In Vishnu v. State of Maharashtra [(2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] while dealing with a similar issue, this Court observed that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. For determining the age of the child, the best evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the municipal corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded. 13 x x x 28. Thus, the law on the issue can be summarised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend as to on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case.” 8.4. In Madan Mohan Singh v. Rajni Kant, this Court held that the entries made in the official record may be admissible under Section 35 of the Evidence Act, but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded. It was held as follows : “20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases. 21. … For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded. …” 8.5. This Court, in Alamelu v. State, while dealing with a similar factual matrix, held that the 14 prosecution had failed to prove that the girl was a minor at the relevant date since the transfer certificate of a Government School showing age was not duly proved by witnesses. It observed as under: “40. Undoubtedly, the transfer certificate, Ext. P- 16 indicates that the girl's date of birth was 15-6- 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. 31-7-1993. 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 Evidence Act, 1872. 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. 41. We may notice here that PW 1 was examined in the Court on 9-8-1999. In his evidence, he made no reference to the transfer certificate (Ext. P-16). He did not mention the girl's age or date of birth. PW 2 was also examined on 9-8-1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 CrPC seeking permission to produce the transfer certificate and to recall PW 2. This petition was allowed. … In her cross- examination, she had merely stated that she had signed on the transfer certificate, Ext. P-16 issued by the school and accordingly her date of birth was noticed as 15-6- 1977. She also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate.” (Emphasis supplied) 9. In the attending facts, we find that the evidentiary value of Ex.P11 is significantly undermined in the absence of corroborating material. We say so for the following reasons: 15 (i) PW-13, who is the Headmaster of Zilla Parishad High School, Chandanapur, Peddapalli District (erstwhile Karimnagar District), stated that the victim studied in his school from 2007 to 2013, i.e., 6th Class to 10th Class and that the Admission Register records her date of birth as 3rd November 1996. However, in his cross-examination, he admitted that he had no personal knowledge as to the source or basis on which the date of birth was recorded therein or if the recorded date of birth was correct or not. The relevant part of his testimony is extracted hereunder: “…In our school there is not clerk to maintain records. I did not produce any certificate pertaining to earlier school I, In which P.W.3 studies up to 5th Class. There must be basis for entering date of birth of a student in our school such as her earlier school record. I do not have personal knowledge as to what record was produced by parents of P.W. 3 as basis to enter her date of birth in our school as I was not Head Master in 2007. I cannot say in which school P.W.3 studied up to 5th Class. In the nominal roll register of our school, the signature of P.W.3 was obtained. I do not have personal knowledge whether the said date of birth of P.W.3 was correct or not and I am giving evidence only on the basis of record.” (Emphasis Supplied) (ii) The prosecution has failed to examine the person who had made the entry in the Admission Register to ascertain on what basis such an entry was made. More so, the entry in respect of the date of birth of the victim in the primary school register, i.e., 1st Class to 5th Class, has not been produced and proved before the Courts below to verify the age as per its records. It is also not possible to ascertain from the records as to whether the date of birth was provided by the parents or simply entered at the behest of another party, without verification, at the time of admission to Zilla Parishad High School. (iii) The testimonies of PW-1, PW-2 and PW-3 are also telling that none of them mentioned the victim's age with specificity. There is no reference to Ex.P11, and no attempt was made by the prosecution to adduce corroborative testimony regarding the victim's date of birth from her family members. 16 Thus, while examining the issue at hand, on the anvil of the principles elucidated above, it is essential to notice that the prosecution has failed to toe the line of legal requisites. There is nothing on record to corroborate the date of birth of the victim as recorded in the birth certificate (Ex.P11) issued by the school. Therefore, it cannot be relied upon to definitely determine the age of the victim and held with certainty that the victim was below sixteen/eighteen years of age. 11. Furthermore, none of the victim's family members, i.e., her mother and brothers have said anything about the age of the victim in their depositions made in the Court. Even the victim is effectively silent on this aspect, only stating that she and her siblings were born approximately two years apart and thereby making an estimation of their ages as well as her own. Throughout her deposition, the victim has remained silent with regard to her particular date of birth. 12. Well, suffice it to say that Courts of law cannot make a determination of guilt in thin air, based on estimations. In the present facts and circumstances, the proof submitted by the prosecution in the form of Ex.P11 (birth certificate issued by the school) was not sufficient to arrive at a finding that the prosecutrix was less than sixteen/eighteen years of age, especially when such a document was not sufficiently corroborated. Therefore, it was neither safe nor fair to convict the appellant based on it, particularly in the context where the age of the victim was such a pivotal factor. " 24. Reverting to the facts of the present case in the light of abovementioned judgment, the father of the prosecutrix (PW-1), mother of the prosecutrix (PW-2) and prosecutrix herself (PW-3) though have stated that the date of birth of the victim was 12.12.1999, but according to the statement of Goverdhan Das Sahu (PW-8) Headmaster of Government Primary School, Pirda though has admitted that in the Dakhil-kharij Register (Ex.P/24C), date of birth of the prosecutrix has been mentioned as 17 21.12.1999, but in cross-examination, he has stated that he did not know that on what basis the date of birth of prosecutrix has been mentioned in the documents. 25. Except for these evidences, no other evidence like Kotwari register or birth certificate have been produced by the prosecution to determine her age that on the date of incident, she was minor or less than 18 years of age. The oral evidence of the witnesses i.e. father of the prosecutrix (PW-1), mother of the prosecutrix (PW-2), prosecutrix herself (PW-3) and Goverdhan Das Sahu (PW-8) as also Dakhil-kharij Register (Ex.P/24C) are not sufficient to hold that the prosecutrix was minor on the date of incident because of the reason that no documents has been shown to ascertain the fact that on what basis the date of birth of the prosecutrix was recorded. The entry with regard to age of the prosecutrix has been mentioned in the Dakhil-kharij Register (Ex.P/24C) is not sufficient to hold actual date of birth of the prosecutrix. There is every possibility that the date of birth of the prosecutrix is recorded on assumption otherwise, the prosecution must have produced the relevant record on the basis of which her date of birth recorded in the said register. The evidence produced by the prosecution with respect to the age of the prosecutrix are not of that sterling quality which is sufficient to determine the age of the prosecutrix. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor. 18 26. The next question for consideration would be whether the appellant has committed rape upon her or not ? 27. Very recently, in the matter of Tilku Alias Tilak Singh v. The State Of Uttarakhand, 2025 INSC 226, the Supreme Court while dealing with the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, has held as under :- “16. Even if the finding of the learned Single Judge of the High Court that the prosecutrix was between 16 to 18 years of age is to be accepted, in our view, the offence under Sections 363 and 366 IPC would still not be made out. 17. This Court in the case of S. Vardarajan v. State of Madras had an occasion to consider almost similar facts that arise for consideration in the present case. This Court has observed thus: “7. …..It will thus be seen that taking or enticiting away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to “taking” out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law “taking”. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got 19 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 office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her…….” 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 20 very much in the age of understanding as to what was right and wrong for her.” 28. PW-3, the victim, deposed that she was a resident of village Pirda and resides there with her parents and two younger brothers. Her date of birth was 12.12.1999. She stated that she knew the accused Vinod, who also belongs to the same village and is of the Yadav caste, while she belongs to the Satnami caste. She stated that she came to know the accused when she was studying in 9th standard and the accused was in 10th standard at Bhimbhori school. They used to talk frequently, which displeased her father, and therefore she was sent to Bhilai. During the Diwali festival, she returned to her village, Pirda, and thereafter met the accused. She further stated that she went to Pune with the accused Vinod of her own free will and lived with him in the labour quarters. The accused used to go to work, and sometimes she also accompanied him. They got married at a temple in Dehun village, Pune, by exchanging garlands. She stated that the accused used to say he would keep her as his wife, and hence she went with him. 29. PW-3 stated that in Pune, she and the accused lived as husband and wife and had physical relations with her consent, due to which she became pregnant. She was about 17 years old at that time and the accused was unaware of her age. She stated that her parents were not aware of her having gone with the accused, and the accused also did not inform them. She remained with the 21 accused in Pune for about six months. She further stated that the police found her with the accused in Pune and brought both of them to the Kandarka outpost, where some paperwork was done and she was handed over to her parents. She admitted her signature on the said document (Ex.P/4). She also identified her signatures on the medical examination consent form (Ex.P/17) and stated that during the medical examination, she was informed that she was two months pregnant, and subsequently, abortion was carried out with court permission. She also identified her signature on the seizure memo (Ex.P/18) relating to her petticoat seized during investigation. She further stated that during investigation, she gave her statement to the police wherein she had stated that the accused had taken her away on the pretext of marriage and had sexual intercourse with her without her consent. She admitted that the accused had promised to marry her and to keep her as his wife and that she would not have gone with him if he had not made such a promise. She admitted that she was studying in 9th class and the accused was in 10th class and that she had told him that she was underage and belonged to the Satnami caste, while he belonged to the Yadav caste, and her parents would not agree to the marriage, but even then he persuaded her to go with him. 30. PW-3 further admitted that she never complained against the accused to her family members or friends and that she wanted to continue her studies after 10th standard. She also admitted that 22 she left her house secretly without informing anyone and did not complain to anyone on the way or in Pune about the accused. She admitted that she stated her date of birth as 12.12.1999 as mentioned in her school records but could not tell who had written it or on what basis. She further admitted that she never told the accused that she was a minor and that she herself was not aware of being a minor. She denied the suggestion that the accused did not ask her to accompany him and stated voluntarily that the accused had said so and that she herself had also asked him to come. She further stated that the accused had physical relations with her but she did not complain to anyone about the same. She also admitted that she went with the accused of her own free will. She further stated that the police read over her statement to her. 31. Dr. Anamika Minj (PW-12) has deposed in her statement that she had examined the said victim and identified her by a mole present on the right side of her nose, above the eye. According to the victim, her last menstrual period was on 16.04.2017, and she had stated that she was 16 years old when she had her first menstruation. The witness stated that upon examination, the number of teeth in the upper jaw of the victim was found to be 7+7, and in the lower jaw, 7+7. During physical examination, no external injuries or marks of violence were observed on the victim’s body. The secondary sexual characters were found to be well developed. 23 32. The witness further stated that she did not conduct an internal vaginal examination of the victim as the victim was found to be 10 to 12 weeks pregnant, and therefore, such examination was not possible. She opined that on the basis of her examination, a definite opinion regarding the commission of rape upon the victim could not be given. She proved the medical examination report prepared by her, which is marked as Ex.P/25, and identified her signature thereon at portion ‘A’. 33. Further, articles were not sent for its chemical examination for the reasons best known to the prosecution. 34. According to the learned State counsel, though the sample of fetus as also the E.D.T.A. Vial of the victim as also the appellant were sent for DNA test, but the report is not available. The said submission has been controverted by the learned counsel for the appellant stating that no samples were drawn from the appellant so as to examine the paternity. 35. DNA test report could have been the best piece of evidence so as to arrive at a finding as to whether the appellant was the biological father of the child and it could have been conclusively proved that it was the appellant alone who had committed the offence in question, which is totally missing in the present case. 36. In the matter of Chotkau v. State of Uttar Pradesh, (2023) 6 SCC 742, Hon'ble Apex Court, in para-80 has observed as under: 24 “80. After saying that Section 53A is not mandatory, this Court found in paragraph 54 of the said decision that the failure of the prosecution to produce DNA evidence, warranted an adverse inference to be drawn. Paragraph 54 reads as follows: (Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 SCC p.485) "54. For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53A and Section 164A CrPC. We are not going to the extent of suggesting that if there is no DNA profiling, the prosecution case cannot be proved but we are certainly of the view that where DNA profiling has not been done or it is held back from the trial court, an adverse consequence would follow for the prosecution." 37. In the case of Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130, the Hon'ble Apex Court in para-44 has held as under: “44. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr.P.C. the prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make it a fool proof case, but they did not do so, thus they must face the consequences.” 25 38. In the light of the above cited judgments, the most critical piece of evidence, a DNA test could not be conducted by the prosecution as the samples were wrongly preserved in ‘Formalin’, which has badly disrupted the test, hence the prosecution has failed to establish a link between the accused persons and the pregnancy of the victim. This omission is significant, especially in a rape case where pregnancy is involved. The prosecution did not provide any plausible explanation for failing to conduct DNA testing, either on the victim or on the fetus, to determine paternity and confirm the involvement of the appellant therefore, it could not be established that it was of the appellant, as such it goes against the prosecution. The age of the victim is also doubtful, as she herself stated before the doctor, during her medical examination (Ex.P/26), that she was about 18 years of age. 39. Further, in the query report (Ex.P/26), the doctor has stated that no definite opinion could be given regarding the presence of any white patch on the petticoat worn by the victim. The report does not indicate any conclusive finding as to the nature or origin of the said patch, nor does it establish the presence of any semen or other indicative substance upon chemical or microscopic examination. Hence, the query report does not support the prosecution version with respect to the alleged sexual act. 40. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. 26 However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do so in the instant case. 41. The conduct of the victim, as revealed from the evidence on record, also appears to be unnatural and inconsistent with the normal behavior expected of a person subjected to such an incident. Her own admissions during deposition show that she had accompanied the accused voluntarily, lived with him for several months as husband and wife, and never made any complaint to her parents, relatives, or any other person either during her stay with the accused or thereafter. Such conduct casts serious doubt on the veracity of her allegations and weakens the prosecution case substantially. 42. In view of these circumstances, her version cannot be relied upon to conclusively hold that the appellant was the perpetrator of the alleged offence. The prosecution has also failed to produce any cogent, credible, and clinching evidence to establish beyond reasonable doubt that the appellant is the author of the crime in question. The medical and documentary evidence on record do not corroborate the essential ingredients of the alleged offences. 27 43. Having carefully examined the entire evidence on record, this Court finds that the prosecution has failed to establish the charge against the appellant beyond reasonable doubt. The version of the prosecutrix, when read as a whole, does not inspire confidence. Her own admissions clearly indicate that she had voluntarily accompanied the appellant to Pune, lived with him as husband and wife for several months, and never raised any protest or complaint to any authority or person during that period. Such conduct is inconsistent with that of a victim of sexual assault and raises a serious doubt regarding the truthfulness of the prosecution story. 44. The medical evidence also does not support the case of the prosecution. The medical officer Dr. Anamika Minj (PW-12) categorically stated that no external or internal injuries were found on the person of the victim, her secondary sexual characters were well developed, and due to pregnancy, no internal examination could be conducted. The query report (Ex.P/26) also fails to establish the presence of semen or any other indicative substance on the petticoat allegedly worn by the victim. Furthermore, the age of the victim itself remains doubtful, as she had stated before the doctor that she was about 18 years of age at the time of medical examination. 45. The most vital scientific evidence, i.e., the DNA test report, which could have conclusively established whether the appellant was 28 the biological father of the fetus, is conspicuously missing from the record. Despite having access to such scientific means, the prosecution failed to produce the DNA report or to satisfactorily explain its non-production. 46. In light of the decisions of the Hon’ble Supreme Court in Chotkau (supra) and Krishan Kumar Malik (supra), such omission assumes great significance and invites an adverse inference against the prosecution. 47. Recently, after applying the principles of Tilku alias Tilak Singh (supra), in the facts of the present case, it is evident that the prosecutrix, being around 17–18 years of age at the relevant time, was mature enough to comprehend the nature and consequences of her actions. Her consistent admission that she went with the appellant of her own free will, lived with him as his wife, and never lodged any complaint, clearly indicates that the relationship was consensual in nature. 48. In view of the foregoing discussion, this Court is of the considered opinion that the prosecution has not been able to prove its case beyond reasonable doubt. The evidence brought on record is insufficient, unreliable, and inconsistent to sustain the conviction. The benefit of doubt must, therefore, enure to the appellant. 49. Consequently, the criminal appeal is allowed. The impugned judgment of conviction and order of sentence dated 28.09.2018 is hereby set aside. The appellant is acquitted from all the charges 29 leveled against him. The appellant is stated to be on bail. He is not required to surrender. His bail bonds are cancelled and sureties stands discharged. 50. Keeping in view the provisions of Section 437-A Cr.P.C. (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 51. The trial Court record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Amitendra Kishore Prasad) (Ramesh Sinha) Judge Chief Justice Yogesh