1 CRA No. 849 of 2016 2025:CGHC:59812 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 849 of 2016 Vijendra Chandrakar S/o Shri Punit Chandrakar Aged About 23 Years R/o Vill Arand, P.S. Mahasamund, District Mahasamund, Chhattisgarh., Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through The P.S. Kurud, District Dhamtari, Chhattisgarh., Chhattisgarh ... Respondent(s) For Appellant : Ms. Anamika Jain on behalf of Mr. Devershi Thakur, Advocate For Respondent(s) : Ms. R.C.S. Deo, P.L. Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 09/12/2025 1. This criminal appeal preferred under Section 374 (2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 13.08.2015 passed in Special Sessions Trial No. 13/2015 by the learned Additional Sessions Judge (F.T.C.) Dhamtari, District Dhamtari C.G. whereby the appellant has been convicted and sentenced as under:- JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2025.12.12 10:44:25 +0530 2 CRA No. 849 of 2016 Conviction Sentence U/s 363 of IPC R.I. for 3 years and fine of Rs. 500/- with default stipulations U/s 366 of IPC R.I. for 5 years and fine of Rs. 1,000/- with default stipulations U/s 4 of Protection of Children from Sexual Offence Act, 2012 Rigorous imprisonment for 07 years and fine of Rs. 2,000/- with default stipulations All the sentences are directed to run concurrently. 2. Case of the prosecution in brief is that the complainant's mother lodged a report at Kurud Police Station on March 7, 2015, against the accused for abducting the victim by luring her with a promise of marriage and thereafter committed sexual intercourse with her Based on this report, Kurud Police Station registered Crime No. 72/15, and further investigation was conducted. 3. During investigation, Spot Map was prepared. Statement of the Victim and the Statements of witnesses were recorded, appellant was arrested and subsequently after completing the investigation, a charge-sheet was submitted before the Court. 4. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. 5. In order to bring home the offence, the prosecution has examined 8 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 3 CRA No. 849 of 2016 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 13.08.2015 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 7. Learned counsel for the appellant submits that the judgment of the trial Court convicting the appellant is perverse and unsustainable in law. It is contended that the prosecution has miserably failed to establish the essential ingredients of the offences under Sections 363 and 366 of the IPC, as well as Section 4 of the POCSO Act, yet the learned trial Court has erroneously presumed guilt and recorded conviction by stretching its imagination beyond permissible limits. Counsel submits that the evidence brought on record has not been properly appreciated; in fact, the prosecutrix herself did not support the prosecution case. It is urged that the prosecutrix had voluntarily contacted the appellant, who merely advised her, took her to his parents, and thereafter produced her before the police. There was no allegation or evidence of force, compulsion, or deceitful inducement on the part of the appellant, and therefore no act amounting to abduction. The conviction is based purely on presumptions, particularly when the statement of the prosecutrix demonstrates her consent. It is further submitted that the sentence imposed is excessively harsh and wholly disproportionate to the facts and circumstances of the case. Thus, the impugned judgment deserves to be set aside. 4 CRA No. 849 of 2016 8. Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. 9. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. The question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 363 of the IPC ? 11. The appellant has been convicted for offence under Section 363 of the IPC, which is punishable for kidnapping. Kidnapping has been defined under Section 359 of the IPC. According to Section 359 of the IPC, kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states as under:- “361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.” 12. The object of Section 359 of the IPC is at least as much to protect 5 CRA No. 849 of 2016 children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients:- (1) Taking or enticing away a minor or a person of unsound mind. (2) Such minor must be under sixteen years of age, if a male, or under eighteen years or age, if a female. (3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind. (4) Such taking or enticing must be without the consent of such guardian. So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18 years of age; (ii) such minor was in the keeping of a lawful guardian, and (iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian. 13. The Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras1, took the view that if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so and held that if 1 AIR 1965 SC 942 6 CRA No. 849 of 2016 evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian and held as under:- “It would, however, be 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. 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. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”. 14. Reverting to the facts of the present case in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra), upon a careful consideration of the evidence, particularly the testimony of the prosecutrix, this Court is of the view that the offence under 7 CRA No. 849 of 2016 Section 363 IPC is not made out. As in cross examination the witness herself stated calling Vijendra (accused) to Kurud on the incident day and sending him a message threatening self-harm if he did not come. She said she reached Kurud by taking a lift from an unknown person and had lied to her family about going to a friend’s house. She stated that she voluntarily accompanied the accused and denied that he enticed or pressured her. On the other hand, it is clearly established that the victim herself accompanied the appellant and there is no inducement to the victim by the appellant to leave the lawful guardianship. Therefore, in the considered opinion of this Court, the act/omission of the appellant, if any, would not tantamount to “taking” within the meaning of Section 361 of the IPC in light of judgment of the Supreme Court in S.Varadarajan (supra). Similarly, there is no evidence of enticing the minor victim by the appellant. As such, the trial Court is absolutely unjustified in convicting the appellant for offence under Section 363 of the IPC. 15. The next question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 366 of the IPC ? 16. Bare perusal of the evidence of the victim girl, it appears that victim girl voluntarily accompanied the accused without being enticed or influenced. Mere accompanying a person without being induced does not constitute an offence under Section 366 of the 8 CRA No. 849 of 2016 IPC. Though, the learned State counsel vehemently contended that age of the victim girl has proved by the prosecution that she is minor as on the date of incident, nevertheless, in order to convict the accused for the offence under Section 366 of the IPC, other two essential ingredients i.e. the victim girl must be induced by the accused and she must be induced by the accused person to go from a place or to do any act with an intent that such girl may be knowing that it is likely that she will be forced or seduced to illicit intercourse by another person. As such, the prosecution has failed to prove the ingredients of offence under Section 366 of the IPC. 17. The next question arises before this Court whether the victim was minor on the date of incident or not? 18. The victim (PW-1), in her deposition, stated that her age was 16 years, that she had studied up to Class 10th, and further disclosed her date of birth as 31.10.1998. The mother of the victim (PW-2) also deposed that her daughter was 16 years of age and affirmed the same date of birth, i.e., 31.10.1998. 19. PW-4, Satish Kumar Sahu, an Assistant Teacher at the Primary School, deposed that as per the Dakhil-Khariz register, the date of birth of the victim is recorded as 31.10.1998. However, during cross-examination, he admitted that he had not made the said entry in the register, nor did he know who had made the entry or on what basis the date of birth had been recorded. 9 CRA No. 849 of 2016 20. 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, the Supreme Court has observed as under: "40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of 10 CRA No. 849 of 2016 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 11 CRA No. 849 of 2016 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." 21. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2. If an application is 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 XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 12 CRA No. 849 of 2016 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 scrutinized and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of 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 13 CRA No. 849 of 2016 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." 22. 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 14 CRA No. 849 of 2016 the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "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 15 CRA No. 849 of 2016 municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year." 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 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." 16 CRA No. 849 of 2016 23. Very recently in the matter of Tilku Alias Tilak Singh V. The State Of Uttarakhand, reported in 2025 INSC 226, the Supreme Court has 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 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 17 CRA No. 849 of 2016 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 very much in the age of understanding as to what was right and wrong for her. 18 CRA No. 849 of 2016 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.” 24. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment. Hence, in absence of proof regarding the date of birth of the victim, the finding of the learned trial Court that the victim was a minor on the date of incident cannot be acceptable. Therefore, the conviction and sentence imposed upon the appellant under Section 8 of the POCSO Act is not made out. 25. The next question for consideration would be whether the appellant has committed the sexual offence with the Victim or not? 26. PW-1 stated that she knew the accused, a truck driver, as he used to bring goods to the FCI godown at Kurud. She further stated that two or three days prior to Holi, she left home telling her mother that she was going to a friend’s house for a ceremony and also gave her mobile number. She then went to Kurud Bypass Road where she met the accused, who had a motorcycle. She further stated that the accused took her on the motorcycle to Chaparan and thereafter to his brother-in-law’s house at village Rewa, P.S. Mandirhasaud, where his sister was present but his brother-in-law was not there. She further stated that at about 7:30 p.m., when her mother called, she informed her that she would return the next 19 CRA No. 849 of 2016 morning and thereafter switched off her mobile phone. She slept in one room while the accused slept in another, and on the following day, the accused established physical relations with her, which continued for two days. She added that on 07.03.2015, her brother along with his friends reached the said house searching for her, and her brother informed the Mandirhasaud police, who took both her and the accused to the police station. In cross-examination, PW-1 admitted that she had once received a wrong-number call on her mobile phone but had not informed her family or lodged any report with the police. She stated that she could not specify when she first met the accused and confirmed that she had no relatives at Rewa, P.S. Mandirhasaud. She denied the suggestion that she used to leave school to meet Vijendra Chandrakar (accused) and further stated that her mother did not know Vijendra. She admitted that on the date of the incident she had called accused to Kurud and that she had also sent him a message saying that she would die if he did not come. She further stated that she met accused at Kurud around 3–4 p.m. and had reached Kurud at about 3:30 p.m. after taking a lift from an unknown person whose name she did not remember. She said she had told her family she was going to her friend’s house though this was untrue, but she did not disclose the name of the friend in whose house the ceremony was said to be held. She stated that she did not remember the motorcycle 20 CRA No. 849 of 2016 number on which Vijendra came. She denied the suggestion that when she and the accused slept in the room, no wrongful act had occurred. She stated that on 04.03.2015, during Holi, the accused had taken her to Mandirhasaud but did not commit any wrongful act that day, and she had not informed the accused’s sister about any such act. She admitted that she did not lodge any police report on the same day and had also not informed her brother about the act committed by the accused. She stated that she had gone with the accused voluntarily and denied that he had enticed or induced her. She denied leaving her mobile phone at home and also denied that any third person was present on the motorcycle. 27. PW-2 mother of the victim stated that two days before Holi, her daughter left home saying she was going to a friend’s house in Kurud for a ceremony and gave her mobile number before leaving. She further stated that she called her daughter several times that evening; initially the victim said she would return by 7 p.m., then later said she would come the next morning, after which her phone was switched off. When victim did not return the next morning, PW-2 enquired with her teachers and her friend Payal, who confirmed that no ceremony had taken place and Mona had not visited her. PW-2 informed her sons when they arrived from Raipur and later lodged a missing report (Ex. P-4). 28. PW-7 Dr. Heena Ahmed stated that on internal examination of the victim she found that hymen was old and torn, allowing two 21 CRA No. 849 of 2016 fingers to easily enter. She further stated that in her opinion the victim was habitual to sexual intercourse. She further in her cross examination stated that there was no injury marks in private parts of the victim. 29. In a comprehensive evaluation of the testimonies of PW-1, PW-2, and PW-7, this Court finds that PW-1 herself admitted in cross- examination that she had voluntarily accompanied the accused, had called him to Kurud, and had even threatened self-harm if he did not come. She further admitted that the accused neither enticed nor induced her and that she took a lift from an unknown person to reach Kurud after deliberately misleading her family regarding her whereabouts. PW-2’s testimony also reveals that the victim left home on her own accord and that the family came to know of her absence only when she failed to return; there is no indication of any force, threat, or inducement by the accused at that stage. The medical evidence of PW-7 states that the hymen was old and torn, consistent with habitual intercourse, and importantly, no injuries were found on the victim’s private parts, thereby negating any suggestion of forcible sexual assault. The cumulative effect of these admissions, coupled with the absence of injuries and the victim’s own conduct, creates a significant doubt regarding the prosecution case. In such circumstances, the benefit of doubt must go to the accused. 30. The conduct of the victim throughout shows voluntary company 22 CRA No. 849 of 2016 with the accused and repeated physical intimacy over a long period, clearly demonstrates that she was a consenting party to the acts. 31. Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that the appellant has committed rape upon her, rather it reflects from the evidence that the victim herself had made consented sexual intercourse with the appellant. It is also clear from the statements of the prosecution witnesses that the physical relation they made was consensual in nature, thus, it cannot be said that the appellant committed the offence. 32. 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 leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 33. For the foregoing reasons, the prosecution has not proved that the appellant had forcefully taken away the Victim, and from the evidence of the victim the same creates doubt and also the fact 23 CRA No. 849 of 2016 that since, it has also not proved that at the time of incident the Victim was minor, therefore, we are of the view that the appellant is entitled to be acquitted. 34. The accused is acquitted of the charges for which he was tried. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted from the charge leveled against him. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal appeal is allowed. 35. 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/- (Bibhu Datta Guru) Judge Jyoti