1 CGHC010036742023 2026:CGHC:30571-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 269 of 2023 Deepak Manikpuri S/o Komal Manikpuri Aged About 22 Years R/o Village Arjuni, P.S. Bhatapara (Rural), District Balodabazar-Bhatapara (C.G.) ... Appellant(s) versus State Of Chhattisgarh Through The Station House Officer Police Station Bhatapara (Rural) District Balaudabazar-Bhatapara (C.G.) ... Respondent(s) (cause title taken from CIS) For Appellant (s) : Mr. Vijay Shankar Mishra, Advocate For State For Objector : : Mr. Ashish Shukla, Addl. A.G. Mr. Vikas Kumar Gupta, Advocate Hon'ble Mr. Ramesh Sinha, Chief Justice Hon'ble Mr. Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 20.07.2026 1. Heard Mr. Vijay Shankar Mishra, learned counsel for the appellant. Also heard Mr. Ashish Shukla, Addl. Advocate General for the Respondent/ State and Mr. Vikas Kumar Gupta, learned counsel for Objector. SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2026.07.22 10:49:50 +0530 2 2. The present criminal appeal has been filed by the appellant under Section 374(2) of Code of Criminal Procedure against the impugned judgment of conviction and sentence dated 17.10.2022 passed by learned Addl. District and Sessions Judge (FTSC)(POCSO Act) Bhatapara, Dist- Balodabazar- Bhatapara (C.G.) in Special Criminal Case No. H-36/2020 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 07 years and fine of Rs. 500/- in default of fine additional R.I. for 1 month. 2. Under Section 366A of IPC R.I. for 10 years and fine of Rs. 1000/- in default of payment of fine additional R.I. for 1 month. 3 Under Section 376 (3) of IPC R.I. for 20 years and fine of Rs. 1000/- in default of payment of fine additional R.I. for 1 month. 3. Under Section 6 of Protection of Children from Sexual Offences Act, 2012. R.I. for 10 years and fine of Rs. 1000/-, in default of payment of fine further R.I. for 01 month. (All the sentences shall run concurrently) 3. The case of the prosecution is that (PW/1), the mother of the victim, lodged a report on 30.10.2020 at Police Station- Bhatapara (Rural) stating that on 29.10.2020, her minor daughter had gone to Village Mirgi along with her friend and while returning at about 4:30 p.m., near Leela Chowk, Village - Mirgi, the appellant forcibly made the victim sit on his motorcycle and took her away without the consent of her parents. On the basis of the said report, FIR (Ex- P/8) was registered initially under Sections 363 and 366 of the I.P.C. During the 3 course of investigation, the victim was produced before the Police by her father on 31.10.2020, whereupon recovery panchnama (Ex-P/13) was prepared and she was subsequently handed over to her father under Supurdnama (Ex-P/27). The victim was sent for medical examination to Community Health Centre, Bhatapara, where she was medically examined by (PW/3) Dr. Sushma Maheshwari, who submitted her report (Ex-P/6). On medical examination, no external injuries or injuries on the private parts of the victim were found, her hymen was found to be old ruptured and the doctor opined that no definite opinion could be given regarding recent forcible sexual intercourse. Two vaginal slides, were prepared, sealed and handed over to the Police for chemical examination. The appellant was also medically examined by (PW/6) Dr. Hemant Mannewar, who submitted his report (Ex-P/10) opining that the appellant was capable of performing sexual intercourse, and his underwear was also seized and sent for forensic examination. During investigation, the Police seized the original school admission register and affidavit register relating to the victim's date of birth vide seizure memo (Ex-P/21), retained their attested copies (Article A/1C and Article A/2C), and returned the original records to the Headmaster under Supurdnama (Ex-P/26). According to the school records, the victim's date of birth is 25.07.2005. Spot maps (Ex-P/12 and Ex-P/9) were prepared by the Investigating Officer and the Patwari respectively. The vaginal slides, swabs, underwear of the victim and underwear of the appellant were forwarded to the State Forensic Science Laboratory, Raipur, from where report (Ex-P/28) was received, according to which semen stains and human spermatozoa were detected on the victim's 4 underwear, vaginal slide and the appellant's underwear. During investigation, the statement of the victim under Section 164 of the Cr.P.C. was recorded before the Judicial Magistrate First Class, Simga, and the statements of the witnesses under Section 161 of the Cr.P.C. were also recorded. On completion of the investigation, the Police filed the charge-sheet against the appellant for offences punishable under Sections 363, 366A and 376(3) of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) before the learned trial Court. 4. The learned trial Court framed charges against the appellant for the offences punishable under Sections 363, 366A and 376(3) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The charges were read over and explained to the appellant, who denied the allegations, pleaded not guilty, and claimed to be tried. 5. 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 the circumstances appearing against him, pleaded innocence, and submitted that he has been falsely implicated in the case. The appellant did not examine any witness in his defence. 6. After appreciation of the oral as well as documentary evidence adduced by the prosecution, the learned trial Court found the appellant guilty of the offences punishable under Sections 363, 366A and 376(3) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012. Accordingly, the appellant has been 5 convicted and sentenced as has been mentioned in the earlier part of this judgment, hence this appeal. 7. 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 reliable and legally admissible evidence. Though reliance has been placed on the School Admission Register and the affidavit register, neither the person who made the entries was examined nor was any Birth Certificate or other primary document produced to substantiate the date of birth recorded therein. It is further submitted that the victim herself admitted in her cross-examination that she was in love with the appellant, had voluntarily accompanied him of her own free will and that the appellant had not committed any wrong with her at his uncle's house. It is further argued that the victim did not support the prosecution case during trial and specifically admitted that she had not stated before the police that the appellant had established physical relations with her on the promise of marriage. Learned counsel would also submit that the victim was not recovered from the custody or possession of the appellant and, in fact, she was produced before the police by her own father, as is evident from the prosecution evidence. It is further contended that the medical evidence also does not support the prosecution case inasmuch as no external or internal injuries were found on the body or private parts of the victim, her hymen was found to be old ruptured and the doctor categorically opined that no definite opinion could be given 6 regarding recent forcible sexual intercourse. It is further argued that the First Information Report was based entirely on hearsay, the material witness i.e. her friend was not examined by the prosecution and 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. 8. 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 below 16 years of age on the basis of the School Admission-Withdrawal Register (Articles A-1 & A-2) reflecting her date of birth as 25.07.2005, which has been duly proved by the Headmaster (PW-13) and corroborated by seizure witness (PW- 8). It is further submitted that the testimony of the victim (PW-2) is trustworthy and inspires confidence, as she specifically affirmed before the learned Trial Court upon clarification that the appellant committed sexual intercourse with her, and her version is duly corroborated by the medical evidence, the testimony of her parents (PW-1, mother of the victim & PW-14, father of the victim), and the FSL Report (Ex. P-28) confirming the presence of human spermatozoa and semen stains on the victim's garments, slides, and the appellant's underwear. Since 7 the victim was a minor, her consent, if any, is wholly immaterial in the eyes of law and the fact that she might have accompanied the appellant voluntarily does not absolve him of his criminal liability. It is further argued that the prosecution has established beyond doubt that the appellant enticed and abducted the victim from the lawful guardianship of her parents and committed repeated penetrative sexual assault upon her between 29.10.2020 and 31.10.2020 at Village Karhi (Simga), thereby attracting the offences punishable under Sections 363, 366A, and 376(3) of the IPC as well as Section 6 of the Protection of Children from Sexual Offences Act, 2012. Therefore, the learned Trial Court has rightly appreciated the entire evidence on record and recorded the conviction of the appellant, and the impugned judgment of conviction and sentence dated 17.10.2022 warrants no interference by this Court. 9. We have heard learned counsel for the parties and perused the material annexed with the appeal. 10.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. 11.The prosecution has mainly relied upon the school admission register (Article A-1) and its certified copy (Article A-1C) to establish the age of the victim, which were sought to be proved through PW-13, the Headmaster of Government Primary School, Arjuni. PW-13, Head Master deposed that the police had seized the original admission register and affidavit register vide seizure memo (Ex. P-21) and, after retaining the certified copies, returned the original registers to him under Supurdnama (Ex. P-26). According to the entry at Serial 8 No. 1081 of the admission register, the date of birth of the victim was recorded as 25.07.2005. However, in his cross-examination, PW-13 categorically admitted that the entries contained in Article A-1 and Article A-2 had not been made by him and that he was unable to state who had actually made those entries. He further admitted that no birth certificate or any other documentary proof had been obtained at the time of recording the victim's date of birth in the school register and that he was not aware of the basis on which the date of birth had been entered, which could only be explained by the person who had made the entry. Thus, although the prosecution has relied upon the school records to establish the age of the victim, neither the author of the entries nor any foundational document, such as a birth certificate or any contemporaneous record, was produced to substantiate the correctness of the date of birth recorded therein. In the absence of proof regarding the source of the entry, the school register, by itself, cannot be treated as conclusive evidence of the victim's age, and the prosecution has failed to establish the exact date of birth of the victim beyond reasonable doubt. 12.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 9 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 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:- 10 "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his 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 11 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." 13. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub- section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie 12 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 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 13 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." 14. 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 14 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." 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 15 of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3) (a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate fromthe school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference." 15. Reverting to the facts of the present case, on examining the evidence relating to the age of the victim, it is found that the prosecution has relied principally upon the entries made in the school admission register to establish her date of birth. The victim (PW-2), in her evidence, stated that she was 15 years of age on the date of her deposition i.e. 22.01.2021, but candidly admitted that she did not know her exact date of birth. Her mother (PW-1) and father (PW-14) also deposed that they did not remember the victim's date of birth. To prove her age, the prosecution examined PW-8 and PW-13, through whom the school admission register and affidavit register were brought on record showing the date of birth of the victim as 25.07.2005. However, PW-13, the Headmaster, admitted in his cross-examination that the entries in the admission register had not been made by him and that no birth certificate or any other documentary proof of age had been 16 obtained at the time of admission for recording the date of birth in the school records. Thus, the prosecution failed to establish that the date of birth recorded in the school register was based on any contemporaneous or authentic document. Despite these admissions, the learned trial Court accepted the entries in the school register and, relying upon the oral evidence of the victim and her parents regarding her approximate age, concluded that the victim was below 16 years of age and below 18 years of age on the date of the incident. 16. PW-1 who is the mother of the victim also stated in her deposition that she could not tell the exact date of birth of the victim. In cross- examination, she stated that the victim was admitted to the school by her family and whatever she has narrated in the court regarding the incident was as per the telling of some other person. She admitted that she does not know her daughter's exact date of birth and whatever documents she signed at the police station, she was not made aware as to what was written on them. She further admitted that she is a hearsay witness as she herself did not witness the occurrence. 17.(PW-14), who is the father of the victim, stated in his evidence that the age of the victim was 17 years at the time of giving his deposition on 18.07.2022 and he did not remember the exact date of birth of the victim. In cross-examination, he admitted that he was away at work at the time of the incident and had no personal knowledge of the occurrence. He also admitted that he could not tell on what basis the date of birth of the victim was recorded in the school register by her family or school authorities, as he did not know. 18.From this evidence, the prosecution has utterly failed to produce cogent evidence with respect to the date of birth of the victim. When 17 the victim (PW-2) herself has stated in her deposition that her age was 15 years on 22.01.2021 and she did not know her exact date of birth, her mother (PW-1) stated that she could not tell the date of birth of the victim, and her father (PW-14) made a statement that the victim was 17 years of age on 18.07.2022 and he also could not recall her exact date of birth. From the evidence of the school records produced by Headmaster (PW-13), the date of birth of the victim appears as 25.07.2005, whereas the parents and the victim herself have express ignorance regarding the primary basis or foundational document on which such entry was made, with PW-13 admitting in cross- examination that no birth certificate was obtained for making the entry and the entry was not made by him. Thus, there is complete inconsistency and ambiguity regarding the date of birth of the victim, and there is no consistent oral or documentary evidence about her age. There is no other reliable evidence like a municipal birth certificate, Kotwari register, or radiological ossification test report for determination of the exact age of the victim. Therefore, we are of the opinion that the learned Trial Court has incorrectly recorded the finding that the victim was a minor below 16 years of age on the date of the incident. 19. So far as, the offence of kidnapping and rape are concerned, we again examined the evidence of victim (PW/2). 20. The victim (PW-2) deposed that she knew the appellant and that on the date of the incident, while returning from Village Mirgi with her friend, she accompanied the appellant to his maternal uncle's house where they stayed for one night, after which the appellant dropped her back at Village Mirgi and she returned home on foot. In her cross- 18 examination, she admitted that she was in love with the appellant, had voluntarily accompanied him and that the appellant's maternal uncle and aunt advised them to return home as they were not of marriageable age. She further admitted that the appellant did not commit any wrongful act with her at his maternal uncle's house and that she had not stated before the police that the appellant had established physical relations with her on the promise of marriage. Though, in response to a question put by the Court regarding the inconsistency in her statements, she subsequently stated that the appellant had established physical relations with her, the same is contrary to her categorical admissions made during cross-examination. Thus, the testimony of the victim contains material contradictions on the core allegation of sexual assault, while her admissions clearly indicate that she had voluntarily accompanied the appellant. 21.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 keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of 19 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". 22. 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 enticement but what we have to find out is whether the part played by the appellant amounts to “taking” 20 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 father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to 21 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.” 23.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 victim 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 victim 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 the same time a false allegation of rape can cause equal distress, humiliation and damage to the 22 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. 24.PW-1, who is the mother of the victim, is admittedly not an eyewitness to the occurrence and her entire testimony is based on what was allegedly narrated to her by the victim's friend and subsequently by the victim herself after her return. She deposed that on the date of the incident she had gone to the agricultural field and came to know about the victim having left with the appellant only on being informed by her friend. She further stated that after the victim returned home on the next day, the victim informed her that the appellant had held her hand, made her sit on the motorcycle and taken her away. However, in her cross-examination, PW-1 (mother of the victim) categorically admitted that whatever she had deposed regarding the incident was on the basis of information supplied by other persons and that she had no personal knowledge either as to where the victim had gone with her friend or as to who had left the victim at village Mirgi. She also admitted that she did not know the contents of the documents on which her thumb impression had been obtained by the police. Thus, the evidence of PW-1,mother of the victim, is essentially hearsay in nature and does not constitute substantive evidence regarding the occurrence. Her 23 testimony merely establishes that she lodged the FIR after receiving information from others and cannot be treated as an independent or direct piece of evidence to prove the allegations against the appellant. Consequently, her evidence does not materially advance the prosecution case and is of limited evidentiary value on the core issue of the alleged kidnapping and sexual assault. 25.PW-14, the father of the victim, is also not an eyewitness to the alleged occurrence. In his examination-in-chief, he merely stated that the appellant had taken away his daughter and that he had gone to the police station after being informed by his wife about the incident. He proved the recovery memo (Ex. P-13), the supurdnama (Ex. P-27) and the seizure memo of the victim's undergarment (Ex. P-3). However, in his cross-examination, he categorically admitted that the victim had never narrated the incident to him and that he had not personally seen the victim leaving with the appellant. He further admitted that he was illiterate and had affixed his signatures on the documents wherever the police had directed him to do so. Thus, the testimony of PW-14 is not based on his personal knowledge of the alleged occurrence but is founded solely on information received from others. His evidence, therefore, is purely hearsay so far as the alleged kidnapping and sexual assault are concerned and does not provide any independent corroboration to the prosecution case. At best, his testimony proves the procedural aspects relating to the recovery of the victim and preparation of the seizure documents, but it does not establish the commission of the alleged offences by the appellant. 26.(PW-3), Dr. Sushma Maheshwari, who medically examined the victim, has not noticed any internal or external injuries on the body of the 24 victim and proved her MLC report (Ex. P-6). She specifically admitted in cross-examination that no signs of struggle or force were found on the person of the victim, nor was any injury observed on her private parts, and further stated in her opinion that she could not definitively state whether recent sexual intercourse had occurred. Even though the FSL report (Ex. P-28) notes the presence of human spermatozoa and semen stains on certain articles including the victim's slides, penty, and the appellant's underwear, the medical evidence given by PW-3 clearly indicates the absence of any recent forced or violent penetrative sexual assault. Thus, the medical and physical findings completely fail to corroborate any non-consensual sexual act or forcible assault, strongly supporting the plea of innocence and consent. 27.(PW-8), who is the relative/witness associated with the seizure, and other family witnesses, they also stated whatever was disclosed to them or witnessed by them. However, key non-official witnesses including (PW-8) turned hostile during cross-examination and did not support the prosecution's case regarding the forcible abduction or sexual assault, except to the extent of the initial search and reporting of the missing victim. 28.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 25 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. 29.From the consideration of the entire evidence produced by the prosecution, we are of the considered opinion that the prosecution has failed to prove the offences of kidnapping, abduction, and penetrative sexual assault under Sections 363, 366A, and 376(3) of the IPC as well as Section 6 of the POCSO Act against the appellant beyond reasonable doubt, and the conviction and sentence of the appellant recorded by the learned Trial Court cannot be sustained. 30.Accordingly, the appeal filed by the appellant is hereby Allowed. The impugned judgment of conviction and sentences dated 17.10.2022 passed against the appellant are set aside. The appellant is acquitted from all the charges. 31.The appellant is reported to be in jail since 17.10.2022. He shall be released forthwith if not required in any other case. 32.Keeping in view the provisions of Section 374 (2) of Code of Criminal Procedure, 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. 26 33.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