1 CGHC010241172017 2026:CGHC:40709 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 183 of 2017 1 - Raja @ Ankit Mahanand S/o Vimal Mahanand Aged About 22 Years R/o Gandhi Nagar, Behind Ashoka Hotel, Ward No. -22, Jagdalpur, Civil And Revenue District- Bastar, Chhattisgarh At Present R/o Nakapara Rajendra Nagar, Ward No.-02, Geedam, District- Dantewada, Chhattisgarh, Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through Police Station- Geedam, Civil And Revenue District- Dantewada, Chhattisgarh, Chhattisgarh ... Respondent(s) (Cause title taken from CIS) For Appellant (s) : Mr. Rakesh Thakur, Advocate For Respondent(s) : Mr. Atanu Ghosh, Dy. Govt. Advocate Hon'ble Justice Mr. Ravindra Kumar Agrawal, Judge Order on Board 17.09.2026 1. Though the matter has been listed for appearance of the appellant in pursuance of the bailable warrant issued against the appellant vide order dated 31.08.2026, the appellant is present in person before the SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2026.09.23 17:45:36 +0530 2 Court. With the consent of the parties, the matter has been heard finally. 2. The present criminal appeal has been filed by the appellant under Section 374 of Code of Criminal Procedure against the impugned judgment of conviction and sentence dated 13.01.2017 passed by learned Special Additional Sessions Judge (FTC), Dantewada, in Special Sessions Case No. 17/2015, whereby the appellant has been convicted and sentenced in the following manner :- S.No. Conviction Sentence 1. Under Section 376 of IPC R.I. for 7 years and Rs. 500/- fine, failing which further to undergo two months of rigorous imprisonment. 2. Under Section 323 of IPC Rs. 200/- fine, failing which further to undergo one months of rigorous imprisonment. 3. Under Section 3 and 4 of Protection of Children from Sexual Offences Act, 2012. R.I. for 7 years and Rs. 500/- fine, failing which further to undergo two months of rigorous imprisonment. 3. The case of the prosecution is that on 14.09.2015, the victim (PW/4) lodged a report against the appellant and co-accused Harish, with the allegation that one year back, the appellant kidnapped her, took her to his house and threatened that if she will not cooperate with him, he will committee suicide. Thereafter, she resided in his house and stayed there for about 2-3 months. Thereafter, he started beating her after consuming liquor and then she took him to her own house, where they were residing as husband and wife and engaged in making physical relation. Two months back, she returned back to her parents house and the appellant also came there and started residing with her. Two days 3 back, he again consumed liquor and assaulting her by hand and fists by which she received injuries on her hand and cheek and then she lodged the report. The FIR (Ex-P/10) was registered against the appellant and co-accused Harish Mahanand for the offence under Section 363, 366, 366-A, 370, 376, 323, 342 and 34 of IPC and Section 5/6 and 9/10 of Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act”). The victim was sent for her medical examination to Community Health Centre, Geedam, where she was medically examined by (PW/5) Dr. Suchita Jain, who gave her report (Ex-P/14). While medically examined the victim, the doctor has noticed scratch mark on left side of cheek to lip, 8 in number, scratch on left ear over angle of mandible 5 in number, however, no any internal or external injuries were found on her private part. Two slides of her vaginal swab were prepared, sealed and handed over to the Police for its chemical examination. Spot map (Ex-P/2) was prepared by the Police. With respect to the age and date of birth of the victim, the Police has seized Class-8th progress report card of the victim vide seizure memo (Ex-P/3) and her progress report card is Article-A. The underwear of the victim has been seized vide seizure memo (Ex-P/4). School record with respect to the age of the victim has also been seized vide seizure memo (Ex-P/26) and after retaining its attested true copy (Ex-P/17A), original school record was returned back to the school. Statement under Section 164 of Cr.P.C. of the victim (Ex-P/12) has been recorded. The appellant was arrested on 15.10.2015. The vaginal slides of the victim, her underwear were sent for its chemical examination to regional FSL, Jagdalpur, from where FSL report (Ex-P/27) has been received and as per the FSL report (Ex-P/27), no 4 semen and sperms were found on the underwear of the victim (Article- A) and no sperm were found on the vaginal slides of the victim (Article- B). Statement of the witnesses under Section 161 of Cr.P.C. has been recorded and after completion of usual investigation, charge-sheet has been filed against the appellant and co-accused Harish Mahanand before the learned trial Court for the offence under Section 363, 366, 366-A, 370, 376, 323 and 34 of IPC and Section 5, 6, 9 and 10 of POCSO Act. 4. The learned Trial Court framed charges against the appellant for the offences under Sections 366-A, 376(2)(n) and 323 of IPC and Section 5(l)/6 of POCSO Act. The charge against the co-accused Harish Mahanand was framed under Section 363, 366-A of IPC and Section 7 and 8 of POCSO Act. The accused persons denied the charge and claimed trial. 5. In order to prove the charges against the accused persons, the prosecution has examined as many as 13 witnesses. The statement of the accused persons under Section 313 of the Code of Criminal Procedure was also recorded, wherein they denied the circumstances appearing against them, pleaded innocence and stated that they have been falsely implicated in the alleged offence. The appellant has further stated that he has restored his relations with the victim, he has not kidnapped her and she voluntarily accompanied him, both of them had gone to Jagdalpur, he has not created any pressure upon her and her mother also accepted him as her son-in-law. Whereas the co-accused Harish has accepted that his nephew Raja used to come to his house but he has never come to his house along with the victim. 5 6. After appreciation of the oral as well as documentary evidence adduced by the prosecution, the learned trial Court acquitted the co- accused Harish Mahanand from all the offences, however convicted the present appellant Raja @ Ankit Mahanand and sentenced him as mentioned in the earlier part of this judgment, hence this appeal. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict the appellant for the offence in question. The age of the victim has not been proved by the prosecution in accordance with law. The prosecution has produced the school register and except that there is no other documentary evidence like birth certificate, kotwari register or ossification test report is produced. The said school register is not proved in accordance with law and author has not been examined. The teacher who has been examined to prove the school record has admitted that he did not know as to on what basis the entries have been made in the school register. The mother of the victim has also shown her ignorance about the date of birth of the victim. The victim, in fact, a major girl, having love affair with the appellant and she resided with him for quite a long time and despite having knowledge of her mother that the victim is residing with the appellant she did not lodge any report, and even when the victim came back to her house, the appellant also used to reside with her in her parent’s house and her mother also accepted him as her son-in- law. It is only when a matrimonial dispute arose between appellant and the victim, the victim lodged the report. The ingredients of the alleged offence of either kidnapping or rape has not been proved by the 6 prosecution and the appellant cannot be convicted for the alleged offence. Therefore, the present appeal may be allowed and the impugned judgment of conviction and sentence may be set aside. 8. Per contra, learned State counsel opposes the submission made by learned counsel for the appellant and submits that prosecution has proved its case beyond reasonable doubt. But for minor omission or contradictions, the evidence of prosecution witnesses are reliable and sufficient to hold the appellant guilty for the alleged offence. The (PW/12 and PW/6) who proved the school register (Ex-P/17A) have duly proved the same and in which the date of birth of the victim has been recorded as 03.04.1998 and as per her date of birth recorded in the school register, she was minor on the incident. Though, there is no other evidence, but the school register cannot be disbelieved as it was prepared much prior to the date of incident. The victim was found to be minor and therefore, her consent is immaterial, even if, she has not made any complaint to anyone or she resided with the appellant for some time. Admittedly, the victim was resided with the appellant and made physical relation when he was found to be minor and the appellant kept her in his house, it has been proved that the appellant kept the victim away from her lawful guardianship and committed rape upon her. In view of the evidence available on record, the evidence of the victim and her mother and also the evidence of the doctor, who noticed injuries on the body of the victim, the evidence are sufficient to establish the alleged offence, thus, the learned trial Court has rightly appreciate the evidence available on record and convicted and sentence the appellant, which needs no interference. 7 9. I have heard learned counsel for the parties and perused the record of the learned trial Court. 10.The first and the foremost question arises for consideration would be the age of the victim as to 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 Register (Ex.P/17- A), which is sought to be proved by the evidence of PW/6, Incharge Head Master of the School and PW/12 who is the teacher posted in the school. 12.PW/6, who is the Incharge Head Master of the School, has stated in his evidence that the Police has seized the school register from him with respect to date of birth of the victim, which is (Ex-P/17) and after retaining its attested true copy (Ex-P/17A), the original register was returned back to the school. In the school register, the date of birth of the victim is recorded as 03.04.1998. He also issued the birth certificate on the basis of school register, which is (Ex-P/16). In cross- examination, he admitted that in the school register the entries are not in his own hand writing. He further admitted that with respect to the document of her date of birth, there is no any entries made in the school register as to who has taken her to the school. He disclosed the date of birth of the victim on the basis of the entries made in the school record. 13.(PW/12) who is the teacher of the school. He only proved the seizure of the school register which is (Ex-P/17A). He too has admitted that in the school register, on what basis the date of birth of the victim is recorded, he did not know. 8 14.From the evidence of these two witnesses, it clearly transpires that both of them are not the author of the school register and also that there is no any documentary evidence on the basis on which the entries of the school register has been made with respect to the date of birth of the victim. 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:- "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 9 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 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:- 10 "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- 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 11 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 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. 12 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." 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 13 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 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 14 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 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 18. Reverting back to the facts of the present case, the victim (PW/4) herself stated that she did not know her date of birth and could not remember the same. 19.(PW/1), the mother of the victim also stated in her evidence that she did not know the date of birth of her daughter. She further admitted that who got admitted her in the school, she did not know. She has not any documentary evidence or kotwari entries with respect to date of birth of her daughter. When the victim herself and her mother did not know about date of birth of the victim, the school record has not been proved in accordance with law, it cannot be said that the prosecution is able to prove the age of the victim that she was minor on the date of incident, yet the learned trial Court held her minor. 20.So far as the offence of kidnapping and rape are concerned, I again examined the evidence of PW/4, who is the victim in the case. 21.The victim (PW-4) has stated in her evidence that one year back she had gone to the appellant from her house and she resided with him for about three months in his house, thereafter, they had gone to Jagdalpur where they were resided about 6-7 months. Thereafter, she alone returned to her parent’s house. The appellant also followed her and started residing with her in her parent’s house. They were resided there as husband and wife. While residing at her parent’s house there was quarrel between them and thereafter, she lodged the report against the appellant which is (Ex-P/10). Initially she declined to get herself examined by the doctor and subsequently gave her consent for her medical examination. This witness have been declared hostile, then she denied that the co-accused Harish has forcefully took her to the house of the present appellant. She also denied the threatening 16 allegedly given by the appellant that he will commit suicide if she would not reside with him. She also denied the suggestion that the appellant made forceful physical relation with her. She also denied the allegation of assault made with her by the accused on the influence of liquor. In cross-examination, she admitted that she was having love affair with the appellant and she inclined with him. She very well know her well being. She further admitted that in the first occasion when she had gone to house of Harish, she has not lodged any report. From Geedam, she accompanied with the appellant on her own will and had gone to his parents house where she resided about 5-6 months. Thereafter, she alone come back to her parent’s house at Geedam. The appellant followed her and thereafter they resided together at her parent’s house. She admitted that while residing at her parent’s house, the appellant consumed liquor and they had a domestic quarrel and in view to get rid from the habit of drinking liquor, her mother advised her to lodge Police report against him. Thereafter, she lodged the report. 22.From the evidence of the victim, it clearly transpires that she herself had gone with the appellant and resided about 5-6 months in his house, thereafter she returned back to her parent’s house, where also she started residing with the appellant as husband and wife and it is only when some domestic dispute arose between them on the influence of liquor consumed by the appellant, report has been lodged. It is not a case when she had gone with the appellant, her mother lodged the report or the appellant forcefully took her with him. Rather it is the case where the victim herself had gone with the appellant, she resided as husband and wife for quite a long time without there being 17 any objection or protest. In such circumstances, it cannot be said that the appellant kidnapped the victim and committed rape upon her. 23.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 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". 18 24. 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” 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 19 got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her…….” 18. It is thus clear that the 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.” 25.Further when the victim herself made consensual physical relation, it cannot be said that the offence of rape has been proved against the appellant or it can be said that the prosecution has proved the offence 20 of rape against the appellant. The relation between the appellant and the victim was consensual, despite knowing the fact she has not raised objection and protested and it is only when some domestic quarrel took place after consuming liquor by the appellant, the report has been lodged by the victim. 26.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. 27.Though certain injuries have been found on the body of the victim as has been noticed by the doctor Dr. Suchita Jain (PW/5), with respect to the offence of Section 323 of IPC, it has been proved by the victim, when the appellant committed marpeet with her, she lodged the report. Dr. Suchita Jain (PW/5) who medically examined the victim, found certain injuries on her chick and other part of the head, which could not be rebutted by the appellant in her cross-examination and thus, the offence under Section 323 of IPC has duly been proved against the appellant. 21 28.For the foregoing considerations, this Court is of the considered opinion that the prosecution has failed to prove its case against the appellant for the offence under Section 376 of IPC and Section 3 and 4 of POCSO Act. However, the prosecution has proved its case against the appellant under Section 323 of IPC. 29.Accordingly, the conviction and sentence of the appellant for the offence under Section 376 of IPC and Section 3 and 4 of POCSO are set aside. The appellant is acquitted from the said offence and the judgment of conviction and sentence to that respect is set aside. However, with respect to the conviction and sentence of the appellant for the offence under Section 323 of IPC, is hereby maintained. 30.The appellant is reported to be on bail. His bail bond shall continue for the further period of six months as provided under Section 481 of BNSS, 2023. 31. The appeal is partly allowed to the extent indicated hereinabove. 32.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/- (Ravindra Kumar Agrawal) Judge Sagrika