1 2025:CGHC:42784 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 305 of 2022 Kishore Das Manikpuri S/o Madhudas Manikpuri Aged About 24 Years Resident Of Trimurti Nagar, Manjhi Para, Police Station-Devendra Nagar, Raipur, District-Raipur Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh Through The Station House Officer, Police Station-Civil Lime, Raipur, District-Raipur Chhattisgarh. ... Respondent(s) For Appellant(s) : Mr. Pradeep Rathore, Advocate For Respondent(s) : Ms. Smriti Shrivastava, Panel Lawyer Hon'ble Mr. Ramesh Sinha, Chief Justice Judgment on Board 22.08.2025 1. The appellant appeared before this Court and his presence is marked today, who was granted bail by a Co-ordinate Bench of this Court on 30.11.2022. Learned counsel for the appellant identified him and with the consent of both the parties, the matter is heard finally. KUNAL DEWANGAN Digitally signed by KUNAL DEWANGAN 2 2. This criminal appeal under Section 374(2) of the CrPC is directed against the judgment dated 30.12.2021 passed by the Additional Sessions Judge (Fast Track Special Court), Raipur, District- Raipur (C.G.) in Special Criminal Case No. 192/2018, whereby the learned trial Court has convicted the appellant as under:- Conviction under Section Sentence (Rigorous imprisonment) Fine In default of payment of fine add. R.I. Section 363 of the IPC 3 years Rs. 500/- 01 month Section 366 of the IPC 3 years Rs.500/- 01 month Section 376(1) of the IPC 10 years Rs. 5,000/- 03 months All sentences have been directed to run concurrently. 3. Case of the prosecution, in brief, is that the complainant/victim's mother lodged a report in Civil Line police station stating that her minor daughter aged about 17 years 11 months 14 days left on 12-09-2018 at around 06:00 pm saying that she is going to her maternal uncle's house and did not return. On contacting the complainant’s brother/victim's maternal uncle, he told that the victim did not go there. Even after inquiring among the acquaintances and relatives of the victim, no information was found. On the report of the victim's mother (complainant), a missing person case number 87/18 was registered in the Police 3 Station Civil Line regarding the missing of the victim and FIR No. 600/2018 was registered under Section 363 IPC and the case was taken into investigation. After the recovery and the statement of the victim and other investigation, Section 366 (A) and Section 376 of IPC and Section 04 of Protection of Children from Sexual Offences Act 2012 were added in the case. After investigation, when evidence of crime was found against the accused, he was arrested and after completion of investigation in the case, charge- sheet was prepared in the above crime and presented before the concerned Court. 4. Thereafter, the concerned trial Court framed and read out charges against the accused under Sections 363, 366, 376 (2) (d) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The accused denied the charges and claimed trial. To prove the charges against the accused, the prosecution recorded the statements of a total of 6 prosecution witnesses and a total of 31 documents have been marked as exhibits. 5. When the statement of the accused was taken under Section 313 of the Cr.P.C., he expressed his desire to give evidence in his defence, declaring himself innocent. But no defence evidence was presented on behalf of the accused. 4 6. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 7. Mr. Pradeep Rathore, learned counsel for the appellant would submit that the impugned judgment dated 30.12.2021 is perverse, erroneous, contrary to law, facts and circumstances of the case, therefore it is liable to be set-aside. Further, the learned trial Court has failed to appreciate that the victim has specifically stated that she acquainted with the appellant since last 4 years and she has love affair with the appellant. She has further stated that she eloped with the appellant and both went to Village Urkura in the house of grandmother of the applicant and while staying there, she has told her age as 18 years. Also, the learned trial Court has failed to appreciate that there are material contradiction and omission in the statement of prosecution witnesses regarding actual age of victim and looking to the material collected by the prosecution and the conduct of victim, it is evident that she has consenting and willing party, therefore no alleged offences are made out against the appellant. The learned trial Court has failed to appreciate that the prosecution has not adduced any reliable evidence to prove the guilt against the appellant, therefore the impugned conviction of the appellant being baseless, deserves to be quashed and has also failed to appreciate that the medical report has not supported the case of prosecution and according to medical report, there was no external or internal injury found over 5 the body of victim. Also, the FIR was lodged with inordinate and unexplained delay and the findings recorded by the learned trial Court is baseless, perverse, erroneous and contrary to the material evidence available on record, therefore liable to be set- aside/quashed. Also, there are material contradiction and omission in the case diary statement and court deposition of prosecution witnesses, which cannot be relied upon and the same cannot be made basis for conviction of appellant. 8. On the other hand, learned Panel Lawyer appearing for the respondent/State support the impugned judgment and submit that the prosecution has proved its case beyond reasonable doubt that the victim was minor on the date of commission of offence and the trial Court has rightly convicted and sentenced the appellant for offences punishable under Sections 363, 366, 376(A) of the IPC. As such, the criminal appeal deserves to be dismissed. 9. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 10. In order to consider the age of the victim, I have examined the evidence available on record produced by the prosecution. 11. In this regard, the Principal (PW-05) of the Government Primary School in Raipur where the victim was studying, has stated in paragraph 2 of his examination that she had given a written complaint (Ex.P-14) regarding production of the mutation register 6 by the police. In paragraph 1, the witness has stated that the original mutation register is Ex.P-13 and the attested copy of the original mutation register attached in the case is Ex.P-13C and in entry number 1216 of the original mutation register, the name of the student/victim, the name of the victim's father, her mother's name, caste, date of birth- 29-09-2000, date of school admission 29-09-2006 and the class in which she was admitted is the first entry. In paragraph 3 of the cross-examination, the witness has stated that the school of the victim was the first entry. She was not posted in that school at the time of admission. Therefore she cannot tell on what basis the victim's date of birth was recorded, but in her own statement she has stated that at that time it was done on the basis of the birth certificate. 12. Oral evidence of the victim and her father has also been presented by the prosecution to prove the age of the victim. The victim (PW-01) has stated in paragraph 01 of her main examination that her date of birth is 29.09.2000 and that she was 17 years old on the date of the incident. 13. The father of the victim (PW-02) has stated in paragraph 01 of the trial-in-chief that the date of birth of the victim is 29-12-2001. Also, the witness has stated that at the time of the incident, her daughter, the victim, was 17 years and a few months old. 14. In the present case, the victim (PW-01) and the victim’s father (PW-02), are the best witness regarding the victim’s date of birth, 7 however, during cross-examination (para 10), the father of the victim (PW-02) stated that his elder daughter was about 24-25 years old and that both his children were born at an interval of two years, he did not mention the exact date of birth of his elder daughter, nor did he state the year of his own marriage. 15. To prove the age of the victim, the prosecution, apart from oral evidence, produced and proved the victim’s progress report (Articles A-1/A-1C) and the admission-withdrawal register (Exhibit P-13/13C). The date of birth of the victim, as recorded in these documents, is 29-09-2000, which is further corroborated by the victim’s oral testimony. Hence, based on these documentary evidences, it is concluded that the date of birth mentioned therein is correct. But, so far the statement of the father of the victim (PW- 2) is concerned, his statements does not inspire confidence. 16. Further, the Principal (PW-05) of the Government Primary School in Raipur where the victim was studying has stated in its cross- examination, that she was not posted in that school at the time of admission and therefore, she cannot tell on what basis the victim's date of birth was recorded. In such a way, her statement also does not inspire confidence. 17. In the matter of Ravinder Singh Gorkhi Vs. State of UP, (2006) 5 SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon’ble Supreme Court has held as under : 8 “26. 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 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." 18. In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. It was 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 9 the age of the girl in the absence of the material on the basis of which the age was recorded. 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 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." 19. In the matter 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: 10 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 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. 11 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.” 20. Recently, in the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, the 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. 12 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: “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.” 13 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.” 21. In the matter of Tilku Alias Tilak Singh V. The State Of Uttarakhand, reported in 2025 INSC 226, the Supreme Court has 14 held that he victim, who is between 16 to 18 years of age is very much in the age of understanding as to what was right and wrong for her. Relevant para of the said judgment states as under:- “16. Even if the 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, reported in 1964 SCC OnLine SC 36 had an occasion to consider almost similar facts that arise for consideration in the present case. This Court has observed thus: “7. …..It will thus be seen that taking or enticiting away a minor out of the keeping of a lawful guardian is an essential ingredient of the 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 15 to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's 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 16 law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her…….” 18. It is thus clear that the prosecutrix, who according to the learned Single Judge of the High Court, was between 16 to 18 years of age was very much in the age of understanding as to what was right and wrong for her. 19. From the evidence of the prosecutrix itself, it will be clear that she had voluntarily gone along with the appellant herein, travelled to various places and also resided as husband and wife at Dehradun.” 22. The evidence of the victim recorded by the trial Court goes to show that she has stated on 12-09-2018, she spoke to Kishordas over the phone and told him that her family wanted to get her married, but she did not want to marry yet, so he should take her with him to Jabalpur. Kishor agreed to go to Jabalpur. She told him that they would meet at City Center Mall that night (12-09- 2018) and then leave for Jabalpur. Around 6:30 p.m., she left home without informing her family and went to City Center Mall with Rs.3,000/-. Kishor met her at the mall. At 10:00 p.m., they both boarded a bus to Jabalpur. On the morning of 13-09-2018 at 11:00 a.m., they reached Jabalpur and stayed there until 16-09- 2018. They roamed around the city during the day and slept at the bus stand at night. On 16-09-2018, they returned by bus to Raipur 17 and reached there on 17-09-2018. From 17-09-2018 to 20-09- 2018, they stayed at the house of Kishor’s so-called grandfather behind the railway station at Urkura. On 20-09-2018, the police caught both of them at the railway station. On 17-09-2018 at Urkura, Kishor had sexual intercourse with her. In Jabalpur, Kishor did not do anything wrong with her. 23. So far as medical evidence is concerned, medical witness Dr. S.K. Bhandari (PW-04) stated that on 22-09-2018 at 11:40 p.m., Kishor Das Manikpuri / appellant herein was brought for examination, and he gave his report (Exhibit P-11) opining that nothing was found in the examination to indicate that the person was incapable of sexual intercourse. He further stated that a sealed packet was brought for examination, which, upon opening, was found to contain a blue-colored readymade underwear. On the inner front portion of the underwear, there was a stain, which had been encircled with red ink. He advised a chemical examination of the stain and resealed the underwear, handing it back to the constable. 24. Dr. (Mrs.) Rajni Chourasia (PW-03) testified that on 22-09-2018 at 2:30 p.m., the victim was brought before her for physical examination. After obtaining written consent from the victim’s mother, she conducted the medical examination and issued the report (Exhibit P-09). Her opinion included the following points:- I. Sexual assault may have occurred, but no definite opinion can be 18 given. II. Two slides were prepared and handed over to the constable for chemical examination to confirm semen. III. No external injury marks were found on the genitalia. 25. Dr. Rajni Chourasia (PW-03), in her report (Exhibit P-09), further noted that the victim’s hymen was old torn and healed. She also stated that a sealed packet brought by the woman constable was opened in her presence, which contained a brown-colored underwear with a suspicious area marked in blue ink. The packet was resealed and handed over for chemical examination. She confirmed her signatures on the report (Exhibit P-10). 26. Investigating Officer Salik Ram Thakur (PW-06) also stated that during the course of investigation, he sent the case property to FSL Raipur through the SSP, Raipur. The SSP’s memo is Exhibit P-29, the receipt from FSL is Exhibit P-30, and the FSL report is Exhibit P-31. On perusal of Exhibit P-31, it is revealed that Exhibit-A (victim’s underwear), Exhibit-B (victim’s slide), and Exhibit-C (accused’s underwear) were sent for forensic examination. The results indicated the presence of semen and human spermatozoa on Exhibit-B (victim’s slide), while no semen or spermatozoa were found on Exhibit-A (victim’s underwear) or Exhibit-C (accused’s underwear). 27. Now, reverting to the facts of the present case and due consideration of the prosecution evidence, I find that no any clinching and legally admissible evidence have been brought by 19 the prosecution to prove the fact that the victim was minor on the date of incident, yet the trial Court in the impugned judgment has held her minor, hence, I set aside the finding given by the trial Court that on the date of incident the victim was minor. 28. So far as the issue of forceful sexual intercourse by the appellant upon the victim is concerned, the evidence of the victim recorded before the trial Court, she stated that on 12.09.2018, she talked to Kishordas/appellant on the phone and told Kishordas/appellant that her family members want to get her married, and she do not want to get married right now, so he come with her to Jabalpur. Kishor/appellant agreed to go to Jabalpur. She told Kishor/appellant that tonight (dated 12.09.2018) they will meet at City Center Mall and after that, they will go to Jabalpur. In the evening, at 6:30 PM, she left her house without informing her family members and went to City Center Mall. She had taken three thousand rupees with her. At the mall, she met Kishor/appellant. At 10:00 PM at night, both of them left for Jabalpur by bus. On 13.09.2018, in the morning at 11:00 AM, they reached Jabalpur and stayed in Jabalpur till 16.09.2018. They used to roam around Jabalpur during the day and at night they used to sleep at the bus stand. On 16.09.2018, they came back to Raipur by bus and reached Raipur on 17.09.2018. From 17.09.2018 to 20.09.2018, they stayed at Kishor’s so-called elder brother’s house behind the railway station at Urkura. On 20.09.2018, the police caught both of them at the railway station. 20 The appellant has done nothing wrong with her. Thus, she has not stated that the appellant allured or threatened her or used any force with her and while making physical relationship with her against her will or consent. 29. Close scrutiny of the evidence, it is clear that the victim was a consenting party. The victim has herself admitted that on the date of incident, she herself called the accused and went with him to Jabalpur on her own will and thereafter stayed there with the accused for 08 days and roamed the city with him and further has herself stated the accused did not allure her in any way and during this period, the accused have had sexual intercourse with her only on one occasion. So far as the Court’s deposition statement of the victim is concerned, perusal of the same goes to show that her statement was completely different from what was statement in her 164 Cr.P.C. statement and hence, the same does not inspire confidence. It is clearly established that the victim herself accompanied the appellant to Jabalpur and thereafter, she and the accused roamed the city together and established physical relations and stayed there for almost 08 days. This itself goes to show that the victim was consenting party. 30. 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 21 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 reasonable doubt, which the prosecution has failed to do in the instant case. 31. Considering the entire evidence available on record and the conduct of the victim, I am of the considered opinion that the victim was more than 18 years of age at the time of incident, further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, offence under Sections 363, 366 and 376(1) of the IPC would not be made out against the appellant. 32. For the foregoing reasons, the criminal appeal is allowed and the impugned judgment and conviction and order of sentence dated 30.12.2021 is set aside. The appellant stands acquitted from all the charges. The appellant is on bail. He is not required to surrender. His bail bonds are cancelled and sureties stands discharged. 33. Keeping in view of the provisions of Section 437-A CrPC (now Section 481 of BNSS), the appellant is directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that 22 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 thereon shall appear before the Hon’ble Supreme Court. 34. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- (Ramesh Sinha) Chief Justice Kunal