1 CGHC010045192025 2026:CGHC:32240-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 442 of 2025 1 - Aman Prakash Kurrey S/o Shri Saheblal Kurrey Aged About 18 Years And 4 Months, R/o Village Naginbhata, Sumendha, P.S. Bankimogra District- Korba, Chhattisgarh. ... Appellant versus 1 - State of Chhattisgarh Through Police Station- Bankimogra, District Korba, Chhattisgarh. ... Respondent(s) For Appellant : Shri Rajesh Roshan Singh, Advocate. For State : Shri Sangharsh Pandey, Govt. Advocate. Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 28.07.2026 Per, Ramesh Sinha, CJ. 1 Though notice was duly served upon PW-2, father of victim, on 13.05.2025, but since no one appears on behalf of victim to raise objection on the application filed by the appellant seeking suspension of sentence and grant of bail, and also considering the fact that appellant is languishing in jail since 15.11.2019, with the consent of the parties, the matter is heard finally. INDRAJEET SAHU Digitally signed by INDRAJEET SAHU Date: 2026.07.31 16:49:47 +0530 2 2 The present appeal has been filed by the appellant against the impugned judgment of conviction and order of sentence dated 28.11.2024 passed by the District & Additional Sessions Judge, FTSC (Prevention of Children From Sexual Offences Act, 2012) (in short, The POCSO Act), Katghora, District Korba, in Special Case No.40/2019 whereby the appellant has been convicted and sentenced as under : Conviction Under Section Sentence 363 IPC RI for 01 year and fine of Rs.500/-, in default of payment of fine, additional RI for one month. 366 IPC RI for 2 years and fine of Rs.500/-, in default of payment of fine, additional RI for one month. 6 of POCSO Act/ 376(2)(n) IPC RI for 20 years and fine of Rs.2000/-, in default of payment of fine, additional RI for three months. 3 Brief facts of the case are that, on 06.11.2019 a missing report was lodged by the father of victim that her minor daughter is missing since 05.11.2019 from School and her whereabouts could not be traced out. Based on written complaint, FIR Ex.P/5 was registered by the police against unknown person for the offence under Section 363 IPC and started investigation. During the course of investigation, on 15.11.2019 the victim was recovered from the possession of appellant and recovery Panchnama Ex.P/1 was prepared in presence of witnesses. The victim was sent for her medical examination to Community Health Centre, Katghora where she was medically examined by Dr. Smt. Nomita Singh, PW-6, who gave her report Ex.P/2. While medically examining the victim, the doctor has not noticed any external injuries on her body, however her hymen was found old ruptured. The doctor opined that victim was habitual for sexual intercourse. Two slides of her 3 vaginal swab were prepared, sealed and handed over to police for chemical examination. She referred the victim for Radiologist for age determination. Spot map Ex.P/6 was prepared by the police. The underwear of victim was seized memo vide Ex.P/3. With respect to date of birth of victim, the police seized her Progress Card Report of Class-VIIIth, Article-A-1 vide seizure memo Ex.P/7 and school register vide seizure memo Ex.P/23 and after retaining its attested true copy Ex.P/23-C, the original record was returned back. According to school register, the date of birth of victim is 10.11.2004. As per x-ray report Ex.P/13, the doctor opined the age of victim to be more than 16 years and less than 18 years. The appellant was arrested on 15.11.2019 and he too was sent for his medical examination to Community Health Centre, Katghora, where he was examined by Dr. V.K. Singh, PW-7, who gave his report Ex.P/10 and found him capable to perform sexual intercourse. The underwear of victim and her vaginal slides and the underwear of appellant were sent for its chemical examination to Regional FSL, Bilaspur, from where report Ex.P/22 was received according to which no sperm were found on the vaginal slide of victim, however semen and sperms were found present on the underwear of appellant and victim. 4 The statement of witnesses under Section 161 CrPC and statement of victim under Section 164 CrPC have been recorded and after conclusion of usual investigation charge sheet was filed against the appellant for the offence under Sections 363,366,376 IPC and Section 6 of POCSO Act. 4 5 The trial court framed charge against the appellant for the offence under Sections 363,366,376(2)(n) IPC and Section 6 of POCSO Act. The appellant denied the charge and claimed trial. 6 In order to establish the charge against the appellant, the prosecution has examined as many as 13 witnesses, whereas one defence witness has been examined. Statement under Section 313 CrPC of the appellant have also been recorded in which he denied the circumstances appears against him, pleaded innocence and have submitted that he has been falsely implicated in the offence. 7 After appreciation of oral as well as documentary evidence led by the prosecution, the trial Court has convicted the appellant and sentenced him as mentioned in opening para of this judgment. Hence this appeal. 8 Learned counsel for respective appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the prosecution witnesses which cannot be made basis to convict him in the offence in question. The entire conduct of victim is suspicious throughout the proceeding. There is no cogent and admissible evidence with respect to age of victim that she was minor and less than 18 years of age on the date of incident. School record has not been proved by the prosecution in accordance with law. In her medical examination, no injuries have been found on the body and there is no sign of any protest. The victim was major girl having love affair with the appellant. She eloped with him on her own will and engaged in making consensual physical relation with him. She resided with appellant in his relative’s house without raising any objection or making complaint to 5 anyone. Thus, in absence of any cogent and clinching evidence against the appellant, he cannot be convicted for the alleged offences. The ingredients required for conviction under the offence of kidnapping and rape are missing. Therefore, the appeal may be allowed and the appellant be acquittal from all the charges. 9 On the other hand, learned counsel for the State opposes the submissions made by the counsel for appellant and would submit that prosecution has proved its case beyond doubt. But for minor omission or contradiction, there are sufficient and overwhelming evidence against the appellant to convict him in the offence in question. The victim was minor on the date of incident which is proved from her school record as well as Radiologist report. Once it has been considered that victim was minor, there is no question of her consent or elopement with the appellant on her own will. He abducted the victim from her school and took her to his sister’s house and stayed for couple of days and thereafter he took her to his maternal uncle’s house and stayed there from where the police recovered them. Even if no injuries were found on her body and her hymen was found old ruptured and healed, but that itself does not dilute the prosecution case as sperms and semen were found on the underwear of victim which strengthens the case of prosecution that appellant committed sexual intercourse with her. Therefore, the judgment of conviction and sentence is absolutely justified and not required to be interfered with. 10 We have heard the counsel for the parties and perused the records of the trial court. 6 11 The first and foremost question would be the age of the victim as to whether she was minor on the date of incident or not? 12 The prosecution has mainly relied upon document Ex.P/23-C which is the attested true copy of school register and sought to be proved by PW-12 who is Head Master of the school. He has stated in his evidence that police has seized the school register with respect to date of birth the victim. After retaining its attested true copy Ex.P/23-C, the police has returned back the original register. As per school register, the date of birth of victim is 10.11.2004. The victim was admitted in the school in Class-I. In cross examination, he admits that he was not posted in the said school at the time of admission of victim. There is no endorsement in the school register as to who made entry in the school register. He further admits that there is no mention about the basis on which the date of birth of victim is recorded in the school register. Even at the time of seizure of school record by the police, he was not posted there. From the evidence of this witnesses, it does not reflect that he was the author of school register and also the basis on which the date of birth of victim was recorded. 13 In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011 (2) SCC 385, which is in respect of admissibility of school records of a person, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary 7 value to prove the age of the victim in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that 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. 14 In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), 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 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:- 8 "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 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." 15 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 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 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima 9 facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 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." 10 16 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 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 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 11 (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." 17 Reverting to the facts of present case, the victim PW-1 have stated her date of birth as 11.10.2004. In cross examination, she has stated that she is about 7 years younger than her elder sister and her elder sister is presently aged about 25-26 years. She admits in para 38 in her evidence that her date of birth was disclosed by her parents and on that basis she is disclosing the same. She is disclosing her date of birth which has been written in Jacha-Bacha Card, Adhar Card and in her marksheet. From her evidence it transpires that she disclosed her date of birth as 11.10.2004 on the basis of entries made in Jacha-Bacha Card, Adhar Card and school record. When the school record itself is found insufficient as the same has not been proved in accordance with law; there is variance of date of birth disclosed by victim as well as date of birth recorded in school record and therefore it cannot be consistently said that her date of birth was correctly recorded in the school. 12 18 PW-2, the father of victim (wrongly mentioned as PW-1 in the deposition sheet) has not disclose any date of birth of his daughter. In cross examination, he stated that with respect to date of birth of his daughter, he has given class-VIII marksheet, Article-A-1 to the police. He stated that he got married in the year 1994 and his first child was born in the year 1995-96. The date of birth of victim was recorded in Kotwari register. He went in school for getting her daughter admitted where he produced Jaccha-Bacha card. He admits that Kotwari certificate was not submitted in the school. 19 There is no clear date of birth of victim disclosed by him in his evidence. Thus, from the overall evidence available in record, it can safely be held that the prosecution has not been able to prove the age of victim that she was minor on the date of incident. Further the defence has examined DW-1 who is Kotwar of the village and he contradicts the evidence of PW-2, father of victim, and stated that in the Kotwari register of the year 2004 he does not find any entry which relates to birth of victim. Therefore, the evidence of PW-2 about age of victim stands contradicted by the evidence of DW-1. Another piece of evidence about the age of victim is the ossification test report conducted by PW-9, Dr. Dilish Singh, who after examining various bone joints of victim has opined that victim is between 16 to 18 years of age. Though he denied that there is error of margin of 3 years on either side, however, he admits that margin of error depends upon the environment and nurture of the person concerned. 20 Regarding error of margin in the ossification test report based on bone joint examination, the Supreme Court has consider the error of margin 13 of two years in either side in case of Ramdeo Chauhan Vs. State of Assam, 2001(5)SCC714 wherein in paragraph 51 it was observed as under : “51. In his report the doctor has detailed all the data on which he reached his conclusion. I do not propose to extract all such data here except pointing out that such data collected by Dr. B.C. Roy are in consonance with the guidelines provided in the text-books on medical jurisprudence. (vide Modis Medical Jurisprudence and Jhala & Rajus Medical Jurisprudence). Ossification test is done for multiple joints, for which the radiological report was obtained. The margin of error according to authorities on medical jurisprudence can be two years either way as the maximum. In this context it is useful to extract the relevant passage from Jhala & Rajus Medical Jurisprudence (6th Edn., page 198): If ossification test is done for a single bone the error may be two years either way. But if the test is done for multiple joints with overlapping age of fusion the margin of error may be reduced. Sometimes this margin is reduced to six months on either side.” 21 Considering the totality of the evidence produced by the prosecution, it cannot be said that victim was proved to be minor on the date of incident and less than 18 years of age, yet the trial has held her minor based on school records which has not been proved by the prosecution in accordance with law. Thus, this court is of the opinion that prosecution could not establish that victim was minor on the date of incident. 22 So far as the offence of kidnapping and rape is concerned, we again examine the evidence of victim PW-1. 23 The victim has stated in her evidence that on 05.11.2019 when she went to Stationery shop to purchase a Pen, the appellant asked her to accompany, to which she denied, but cousin brother of appellant forced her to go with appellant and tried to drag her. The appellant was having sword which he put it on her neck and forcibly took her in his motorcycle. The appellant administered some intoxicate drug on her mouth due to which she became unconscious and she regain 14 conscious at village Girodpuri in the evening. They stayed in a community hall where the appellant committed rape upon her despite her protest. In the morning, the appellant and his cousin brother took her to village Pachri where the sister of appellant was residing. She requested her sister to let her go to her house, to which she refused to intervene in the matter. They stated 2-3 days in the house of his sister where the appellant made physical relation every day. When the father of appellant came to village Pachari, she requested him also for her release but she could not convince him to let her go. The father of appellant took the victim and appellant both to maternal uncle’s house of appellant at village Sakreli where also the appellant committed rape upon her. On call being made by the maternal uncle of appellant to her father, the police came and took her back. In cross examination, she states that when the appellant asked her to accompany, number of persons were present there and when she was being dragged by the cousin brother of appellant, she shouted, but no one came forward in her help. She denied that the place where she was being dragged by the appellant and his cousin brother is visible from the class room of her school. She further states that in her police statement she could not disclose the incident of putting sword on her Neck by the appellant. Even in the statement made before Magistrate, she has not disclosed the same, and first time stated before the court. She states that when the appellant forcibly took her by his motorcycle, she received injuries on her hand, but she could not disclose it to the police or Magistrate. She admits that when the appellant took her by motorcycle, her mouth was open. She does not 15 know what medicine/drug the appellant administered her. The administration of medicine and went on unconsciousness has been disclosed before the police as well as Magistrate. 24 From her detailed cross examination, the victim denied all the suggestions given by the defence and stuck on the point that after the appellant kidnapped her, he administered her intoxicating drug by which she went unconscious and therefore she could not raise alarm. However, from her entire evidence it transpires that even after regaining conscious at village Girodhpuri she did not make any effort to get flee from appellant and except the statement that she asked the sister and father of appellant to let her go, no efforts have been made by her. Even there is no sign of any protest found on her body. She visited place to place, stayed 2-3 days in every place but have not raised any alarm at any place. When the entire evidence of victim is shaky, her evidence cannot be believed for maintaining conviction of the appellant for the alleged offences of kidnapping or rape. Rather, the evidence suggest that she being major girl having love affair with the appellant, eloped with him on her own free will and made consensual physical relation with him. She made statement against the appellant on the instance of her parents. 25 In case of Dola @ Dolagobinda Pradhan Vs. The State of Odisha, 2018(18)SCC 695, the Supreme Court has observed as under: “7. In this regard it would be useful to quote certain observations of this Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, [(1983) 3 SCC 217] wherein it is observed that: “10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. 16 The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because: (1) A girl or a woman in the tradition bound non- permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent. 11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex- offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World (Obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the “probabilities factors” does not render it unworthy of credence, as a general 17 rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self- preservation. Or when the 'probabilities factor' is found to be out of tune”. (emphasis supplied)” 26 The Supreme Court in the matter of Santosh Prasad @ Santosh Kumar Vs. State of Bihar, 2020 (3) SSC 443, has observed about sterling witness in its judgment. In paragraph 5.4.2 it has been held that: “5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it is observed and held as under: “22 In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version 18 in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 27 PW-2, father of victim, have stated in his evidence that when the victim could not return from her school, he lodged a missing report. After about 10 days he recovered his daughter from the house of maternal uncle of the appellant with the help of Janjgir-champa police. His daughter informed him about the entire incident and rape upon her by the appellant. In his cross examination he admits that the school teacher informed him about missing of victim from school. In his police statement he has not disclosed that his daughter informed him that appellant took her on the point of knife. He admits that at the time when his daughter was recovered from maternal uncle’s house of appellant, many other villagers were present in that house. In his police statement he has not disclosed that his daughter informed him that she was being intoxicated by the appellant by administering drug. From the evidence of this witness, there are material discrepancy with the evidence of victim and even otherwise he is not an eyewitness to the incident and only deposed on the basis of information given by victim to him. Further, there are material omissions and contradictions in his evidence also which cannot be relied upon to convict the appellant for the alleged offence. 28 PW-6, Smt. Nomita Singh, who medically examined the victim have not found any external injuries on the body of victim. No sign of any protest was noticed by the doctor. 29 From cumulative examination of the evidence available on record, we are of the considered opinion that prosecution has failed to prove its 19 case beyond reasonable doubt that the appellant kidnapped the victim and committed rape upon her. When the victim was found to be major on the date of incident and there is no evidence of any alarm or protest raised by her while eloping with the appellant, it cannot be said that victim was being kidnapped by the appellant. 30 In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon’ble Supreme Court has held 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 circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 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 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 fulfilment 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”.” 31 Recently, the Hon’ble Supreme Court in case of Tilku @ Tilak Singh Vs. State of Uttarakhand has also relied upon the aforesaid judgment of S. Varadarajan (Supra) in its judgment dated 06.02.2025 passed in Criminal Appeal No.183 of 2014. 20 32 From overall consideration, we are of the considered opinion that the judgment of trial court suffers from perversity and illegality while convicting the appellant for the alleged offence. 33 As a fallout of aforesaid consideration, the appeal is allowed and the impugned judgment of conviction and sentence is hereby set aside. The appellant is acquitted from all the charges. The appellant is reported to be in jail since 15.11.2019. He be released forthwith, if not required in any other case. 34 Keeping in view the provisions of Section 481 of B.N.S.S. 2023, the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of the sum of Rs. 25,000/- with one reliable surety in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 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 inder