1 CGHC010129802025 2026:CGHC:29922-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 762 of 2025 Nausad Khan @ Raja S/o Mohd. Saleem Khan Aged About 20 Years R/o Village Deori, Ward No. 11, Police Station Desari, District- Vaishali Nagar, Bihar, Present Address- Village Sankara, Ravanbhatha Para, Tehsil- Patan, Police Station- Amleshwar, District- Durg, Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through - Police Station- Amleshwar, District- Durg, Chhattisgarh ... Respondent(s) (cause title taken from CIS) For Appellant (s) : Mr. Anmol Sharma, Advocate For Respondent(s) For Objector : : Mr. Sangharsh Pandey, Govt. Advocate Mr. Rajendra Patel, Advocate Hon'ble Mr. Ramesh Sinha, Chief Justice Hon'ble Mr. Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 15.07.2026 1. Heard Mr. Anmol Sharma, learned counsel for the appellant. Also heard Mr. Sangharsh Pandey, Govt. Advocate for the Respondent/ State and Mr. Rajendra Patel, learned counsel for Objector. SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2026.07.21 10:42:09 +0530 2 2. Vide order dated 13.06.2025, notice was issued to the father of the victim/ complainant (PW/14), regarding pendency of the appeal as well as application for suspension of sentence and grant of bail. 3. Upon service of notice upon the complainant, he made a representation through his counsel Shri Rajendra Patel and he made no objection in application I.A. No. 1 of 2025 which is an application for suspension of sentence and grant of bail and also have no objection in hearing the appeal of the appellant. 4. Considering the fact that the appellant was on bail during the trial and he is in jail since 26.03.2025 i.e. from the date of judgment, with the consent of the parties the appeal itself has been heard finally. Accordingly, I.A No. 01 of 2025 is disposed of. 5. The present criminal appeal has been filed by the appelant under Section 415(2) of Bhartiya Nagarik Suraksha Sanhita, 2023 against the impugned judgment of conviction and sentence dated 26.03.2025 passed by learned Addl. Session Judge, Patan, Dist- Durg (C.G.) in Special Criminal (POCSO) Case No. 08/2025 whereby the appellant has been convicted and sentenced in the following manner:- S.No Conviction Sentence 1. Under Section 363 of IPC R.I. for 03 years and fine of Rs. 3000/- in default of fine additional R.I. for 1 month. 2. Under Section 366 of IPC R.I. for 5 years and fine of Rs. 5000/- in default of payment of fine additional R.I. for 1 month. 3 Under Section 376 (3) of IPC No separate sentence has been awarded. 3. Under Section 4(2) of Protection of Children from Sexual Offences Act, R.I. for 20 years and fine of Rs. 5000/-, in default of payment of fine further R.I. for 02 months 3 2012. (All the sentences shall run concurrently) 6. The case of the prosecution is that (PW/14), father of the victim lodged a missing report on 23.07.2023 that his minor daughter had gone to her uncle’s house but could not return. Despite her search, her whereabouts could not be traced out. The Police has registered the FIR (Ex-P/8) under Section 363 of IPC against the unknown persons. During the investigation of missing persons, the victim came back to her house on 27.07.2023 and then the Police was being informed of her whereabouts and recovery panchanama (Ex-P/1) was prepared. The victim was sent for her medical examination to Community Health Centre, Jheeta, where she was medically examined by PW/5 Dr. Vijeeta Dongare, who gave her report (Ex-P/7). While medically examined the victim, no external injuries were found on her body and the doctor has opined that no definite opinion can be given regarding recent sexual intercourse. Two slides of her vaginal slides were prepared, sealed and handed over to the Police for its chemical examination. With respect to her age and date of birth of the victim, the Police has seized school register vide seizure memo (Ex-P/6) and after retaining its attested true copy (Article-A/1C), the original school register was returned to the school. According to the school register, the date of birth of the victim is 21.09.2008. Spot map (Ex-P/3 and P/9) was prepared by the Police and (Ex-P/4) was prepared by the Patwari. The social status certificate of the victim was also seized vide seizure memo (Ex-P/15). The mark sheet of Class-8 of the victim had also been seized vide seizure memo (Ex-P/16). The appellant was arrested 4 on 22.08.2023 and he too was sent for medical examination to Community Health Centre, Jheeta where he was medically examined by (PW/4) Dr. Anurag shonkar who gave his report (Ex-P/5A). After medically examined the appellant, the doctor has found him able to do penetrative sexual intercourse. The vaginal slides of the victim from her underwear and the underwear of the appellant were sent for its chemical examination to State FSL, Raipur from where report (Ex-P/21) was received and as per the FSL report, no semen and sperms were found on the sent articles. Statement of the victim under Section 164 of the Cr.P.C and statements of the other witnesses under Section 161 of the Cr.P.C. were recorded. After completion of the investigation, the Police filed a charge-sheet against the appellant for the offences under Sections 363, 376 of the IPC, Section 4 and 6 of the Protection of Children from Sexual Offence Act, 2012 (in short “POCSO Act”) and Section 3(2)(va) of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 (in short “SC/ST Act”) before the learned trial Court. 7. The learned trial Court has framed charges against appellant for the offence punishable under Sections 363, 366 and 376(3) of the Indian Penal Code and Section 4(2) of the POCSO Act and Section 3 (2)(va) of SC/ST Act. The appellant abjured his guilt and claimed trial. 8. In order to prove the charges against the appellant, the prosecution has examined as many as 14 witnesses. The statements of the appellant under Section 313 of the Code of Criminal Procedure were also been recorded, wherein he denied circumstances appearing against him, pleaded innocence, and submitted that he has been falsely implicated in the case. 5 9. After appreciation of the oral as well as documentary evidence adduced by the prosecution, the learned trial Court acquitted the appellant from the offence under Section 3 (2)(va) of SC/ST Act. However, he has been convicted and sentenced as has been mentioned in the earlier part of this judgment, hence this appeal. 10.Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the present case. The prosecution has failed to establish its case beyond reasonable doubt and the conviction recorded by the learned Trial Court is contrary to the evidence available on record. It is argued that the prosecution has failed to prove the age of the victim by any legally admissible evidence. Though reliance has been placed on the School Admission Register, neither its author was examined nor any Birth Certificate, Kotwari Register or radiological/ossification test was produced to establish that the victim was below 18 years of age on the date of the incident. It is further submitted that the victim herself admitted in her deposition that she was in a love relationship with the appellant, voluntarily left her house with an intention to marry him and had herself gone to Bihar in search of the appellant, where she found that he was working at Hyderabad. The relatives of the appellant thereafter dropped her at Raipur Railway Station, from where she returned to her house, which itself probabilizes the defence case and demolishes the prosecution story of kidnapping or forcible taking away. It is further argued that the victim was never recovered from the custody or possession of the appellant and, in fact, she was produced before the police by her own parents. Learned counsel would also submit that the medical evidence does not support the prosecution case, as no external or internal 6 injuries were found on the body or private parts of the victim, no definite opinion regarding forcible sexual intercourse was given by the doctor and the FSL report in respect of the vaginal slide and other seized articles is negative. It is further contended that there are material contradictions and inconsistencies in the statements of the prosecution witnesses, which have not been properly appreciated by the learned Trial Court. In these circumstances, it is submitted that the essential ingredients of the offences alleged against the appellant have not been proved beyond reasonable doubt and, therefore, the appellant is entitled to be acquitted by setting aside the impugned judgment of conviction and sentence. 11.On the other hand, learned State counsel opposes the arguments advanced by the learned counsel for the appellant and submits that the prosecution has successfully proved its case beyond reasonable doubt by leading cogent and reliable oral as well as documentary evidence. It is contended that the prosecution has duly established that on the date of the incident the victim was a minor and below 18 years of age on the basis of the School Admission Register, which has been duly proved by PW-2, Head Master of the concerned school. It is further submitted that the testimony of the victim (PW-1) is trustworthy, consistent and inspires confidence, and the same is duly corroborated by the evidence of her parents, the medical witnesses and the investigating officers. Since the victim was a minor, her consent, if any, is wholly immaterial in the eyes of law and the fact that she accompanied the appellant voluntarily does not absolve him of his criminal liability. It is further argued that the prosecution has proved that the appellant had enticed and taken away the victim from the lawful guardianship of her parents 7 and committed penetrative sexual assault upon her, thereby attracting the offences punishable under Sections 363, 366 and 376(3) of the IPC as well as Section 4(2) of the Protection of Children from Sexual Offences Act, 2012. Therefore, the learned Trial Court has rightly appreciated the evidence on record and recorded the conviction of the appellant, and the impugned judgment of conviction and sentence warrants no interference by this Court. 12.We have heard learned counsel for the parties and perused the material annexed with the appeal. 13.The first and the foremost question arises for consideration would be as to age of the victim whether she was minor and less than 18 years of age on the date of incident or not. 14.The prosecution has mainly relied upon the document (Article- A/1C) which is the school register of the victim, which is sought to be proved by PW/2. PW/2 is the Headmaster of the school, he stated in his evidence that he is the Head Master of the school since 2006. The Police has seized the school register vide seizure memo (Ex-P/6) with respect to the age and date of birth of the victim and after retaining its attested true copy (Article-A/1c), the original register (Article-A/1) was returned back to the school which he brought today with him. As per the entries made in the school register, the date of birth of the victim is 21.09.2008. In cross-examination, he admitted that the entries made in (Article-A/1) the school register, has been made by him on the basis of the transfer certificate issued by her earlier school. He also admitted that who has taken her for her admission has not been mentioned in the school register (Article-A/1). Though, this witness have stated that he is the author of the school register and the entries have been made 8 on the basis of transfer certificate, however, there is no endorsement about the details of previous school of the victim and even no transfer certificate has been produced by the prosecution to connect the entries with the entries made in the earlier school. (Article-A/1C) is the school register of Class-6 and the Police has not produced the school register of the victim from her initial schooling. Merely saying that the entries were made on the basis of transfer certificate issued by her previous school would not suffice to conclude that the entries made in the school register are correct entries. There is lack of sufficient documentary evidence of her earlier schooling. 15.The Hon’ble Supreme Court has considered the admissibility and evidentiary value of the school register with respect to the age of the victim. 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 Hon’ble Supreme Court has observed as under: "40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- 9 "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to 10 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 regardto the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the victim although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded,the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 16. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub- 11 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, 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 12 age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015." 13 17. In case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under : "14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to thedescription of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with 14 law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year." 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3) (a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate fromthe school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are 15 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." 18. Reverting to the facts of the present case, when we examined the (PW/1) victim, we found the inconsistency in the evidence regarding the date of birth and age. The victim (PW/1) has stated in her evidence that her date of birth is 06.11.2008. In cross-examination, she stated that she did her initial schooling in the primary school in Village and from 6 to 8 she studied at Village Khamaria and thereafter, at Village Sankra from Class 9th. Her parents have not taken her to the school but she on her own had gone to school. She herself had not filled up any form in the school regarding her admission. She voluntarily stated that she produced the transfer certificate. She admitted that she could not produce any document regarding her admission to Class-1 in the school. 19. PW/6 who is the mother of the victim also stated that the date of birth of the victim is 06.11.2008. In cross-examination, she stated that the victim was being taken to the school by her father. The date of birth of the victim is 06.11.2008 but her date of birth have wrongly being recorded in the school register as 21.08.2008. They have not made any attempt to correct the date of birth of the victim in school records. 20.(PW/14), who is the father of the victim, he stated in his evidence that the correct date of birth of the victim is 06.09.2008 but her date of birth is recorded by Anganbadi worker as 06.11.2008. In cross-examination, 16 he admitted that his wife had gone to school for the admission of the victim. He also admitted that he could not tell as to on what basis his wife has recorded the date of birth of the victim in the school, he did not know. He further admitted that the date of birth of the victim was recorded on assumption. 21.From this evidence, the prosecution has utterly failed to produce cogent evidence with respect to the date of birth of the victim. When the victim herself has stated that her date of birth is 06.11.2008 and she on her own had gone to school. (PW/6) the mother of the victim stated that the date of birth of the victim is 06.11.2008, but the school teacher has wrongly mentioned her date of birth as 21.08.2008 and that her father had taken her to school for her admission. (PW/14), the father of the victim made a complete contradictory statement that the correct date of birth of the victim is 06.09.2008 but Anganbadi worker has wrongly recorded her date of birth as 06.11.2008 and his wife i.e. mother of the victim took her to school for her admission. From the evidence of school record, the date of birth of the victim appears 21.08.2008. from the evidence of PW/1, Victim, her date of birth is 06.11.2008, from the evidence of Pw/6, mother of the victim, though, the date of birth of the victim is 06.11.2008 but wrongly recorded in the school record as 21.08.2008 which is nowhere mentioned in any record and also that from the evidence of PW/14, father of the victim, the correct date of birth of the victim is 06.09.2008 but the anganbadi worker has wrongly recorded her date of birth as 6.11.2008 and thus, there is complete inconsistency in the date of birth of the victim and there is no any consistent evidence about her date of birth. There is no other evidence like birth certificate, kotwari register or ossification test 17 report for determination of the age of the victim, therefore, we are of the opinion that the learned trial Court has incorrectly recorded the finding that the victim was minor on the date of incident. 22. So far as, the offence of kidnapping and rape are concerned, we again examined the evidence of victim (PW/1). 23. She stated in her evidence that she knew the appellant who owned a tire shop in the village. She was having love affair with him and she asked him to marry her. They used to met in the garden and wanted to elope with each other. She had gone to Village- Deshari (Bihar) along with the appellant but came back. She stayed at maternal aunt’s house of the appellant at Village- Deshari and his maternal aunt accompanied her up to Raipur railway station. Thereafter, she came back to her house. On her instance, the appellant made physical relation with her. He made physical relation with her only once. In cross-examination, she stated that she left her house on 22.07.2023 without informing her parents and had eloped with the appellant. She contradict her 164 CrPC statement (Ex-D/2). She could not tell as to from which train, she had gone to Bihar. She further admitted that during travel up to Bihar by train, she has never made any complaint to anyone that the appellant is kidnapping her. There were other co-passengers in the train but she has not raised any alarm. They traveled together for two days to reach Bihar. She further admitted that she was on her own will had gone with the appellant. The appellant stayed in his house and his maternal aunt accompanied her up to Raipur to left her back. She further admitted that with respect to the sexual intercourse by the appellant, she has not made any complaint to her parents or Police personnels. From Bihar, she made a telephonic call to her father and 18 informed that she is at Bihar. She further admitted that if her father would not ask her to come back, she would not have returned back from Bihar. Even from coming back from Bihar, she has not disclosed to her family members as to with whom she eloped. In further cross- examination, she admitted that she still in love with the appellant and wanted to marry with him. The parents of the appellant were objecting their marriage. From the evidence of the victim, it clearly reveals that she was in love affair of the appellant and she herself indulge in making physical relation with the appellant and the appellant made physical relation on the instance of the victim. She herself on her own will eloped with him, both of them have gone to Bihar, where they stayed for about two days and then the maternal aunt of the appellant left her back to Raipur railway station. During the entire journey, she neither made any complaint to anyone nor raised any alarm regarding any act of the appellant. 24.In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon'ble Supreme Court has considered the taking and allowing a minor to accompany a person and has held in Para 9 and Para 10 of its judgment that:- “9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the 19 keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. 10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking". 25. 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 victim 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 20 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 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 21 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 victim, 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 victim 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.” 26.In the matter of Dola @ Dolagobinda Pradhan Vs. State of Odisha, reported in (2018) 18 SCC 695, the Hon’ble Supreme Court has held in Para 9 :- 9. However, as is also evident from the observations above, such reliance may be placed only if the testimony of the prosecutrix appears to be worthy of credence. In this regard, it is also relevant to note the following observations of this Court in Raju v. State of M.P. 4, which read thus: (SCC p. 141, paras 10-11) "10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court. 11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at 22 the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration." Having due regard in our mind to the abovementioned settled position in law, we have assessed the entire material on record meticulously. 27.(PW/6) who is the mother of the victim, however, she made statement on the basis of the disclosure of the incident made by the victim to her. When the victim herself has stated in her evidence that she was in love affair with the appellant and on her own will eloped with him and engaged in making physical relation, the evidence of her mother does not have much significance likewise the evidence of her father (PW/1) also does not have much significance in the case, though, he proved the missing report (Ex-P/8) but it was against unknown person and the victim herself has stated that she on her own will eloped with the appellant and the victim was not proved to be a minor and when she herself eloped with the appellant and engaged in making consensual physical relation, it can be safely held that no offence of either kidnapping or rape are made out against the appellant. 28.(PW/5), Dr. Vijeeta Dongare, who medically examined the victim, has not noticed any internal and external injuries on the body of the victim and proved her MLC report (Ex-P/7). Even, in the FSL report (Ex-P/21), 23 no semen and sperms were found on the vaginal slides of the victim, her underwear and the underwear of the appellant. 29.(PW/7), who is the aunt of the victim and (PW/9) who is the uncle of the victim, they also stated whatever the victim disclosed with them. However, they turned hostile and not supported the prosecution’s case except lodging of her missing report. 30.The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 31.From the consideration of entire evidence produced by the prosecution, we are of the considered opinion that the prosecution has failed to prove the offence of kidnapping and rape against the appellant and the conviction and sentence of the appellant cannot be sustained. 32.Accordingly, the appeal filed by the appellants are hereby Allowed. The impugned judgment of conviction and sentences dated 26.03.2025 passed against the appellant are set aside. The appellant is acquitted from all the charges. 24 33.The appellant is reported to be in jail since 26.03.2025. He shall be released forthwith if not required in any other case. 34.Keeping in view the provisions of Section 481 of Bharatiya Nagrik Suraksha Sanhita, 2023, the appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- 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. 35.The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Sagrika