1 2026:CGHC:18643-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 490 of 2024 Siyaram Yadav S/o Dhansingh Yadav Aged About 32 Years R/o Singhrupali, Police Station Pateva, District : Mahasamund, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Pateva, District : Mahasamund, Chhattisgarh ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Virendra Kashyap, Advocate For Respondent/State : Mr. Nitansh Kumar Jaiswal, Deputy G.A. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri R avindra Kumar Agrawal , Judge Judgement on Board Per Ramesh Sinha, Chief Justice 23/04/2026 1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure has been preferred by the appellant–Siyaram Yadav (in jail) assailing the judgment of conviction and order of sentence dated 13.12.2023 passed by the learned Special Judge, Fast Track Court (POCSO), Mahasamund (C.G.) in Special Criminal Case No. H- VED PRAKASH DEWANGAN Digitally signed by VED PRAKASH DEWANGAN Date: 2026.04.29 20:03:17 +0530 2 77/2022, whereby the appellant has been convicted under Sections 363 and 366 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced in the following manner: Conviction Sentence Under Section 363 of Indian Penal Code Rigorous imprisonment for 5 years and fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of one month. Under Section 366 of Indian Penal Code. Rigorous imprisonment for 7 years and a fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of two months. Under Section 6 of Protection of Children from Sexual Offences Act, 2012 Rigorous imprisonment for 20 years and a fine of Rs.10,000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of six months. All the sentences are directed to run concurrently. 2. By the impugned judgment of conviction, the appellant has also been found guilty for the offence punishable under Section 376(2)(n) of the Indian Penal Code; however, no separate sentence has been awarded for the said offence, as he has already been sentenced under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’), the punishment whereunder being more severe. 3. As per the case of the prosecution, on 18.11.2022, the complainant, who is the father of the victim, lodged a report at Police Station 3 Patewa, District Mahasamund (C.G.), stating that on the said date he had gone to graze cattle in the morning and when he returned home at about 4:00 PM, he was informed by his wife that their daughter had gone missing since noon. Despite making efforts to search for her in the village and nearby places, her whereabouts could not be traced. After about two days, the victim made a phone call to her brother informing that the present appellant had taken her to Ranchi on the pretext of marriage and employment. ******* On the basis of the said report, a First Information Report bearing Crime No. 280/2022 was registered initially under Section 363 of the Indian Penal Code, 1860 against the present appellant at Police Station Patewa, District Mahasamund. ******* During the course of investigation, the Investigating Officer prepared the spot map, recorded statements of witnesses under Section 161 of the Code of Criminal Procedure, 1973, and made efforts to trace the victim. Subsequently, the victim was recovered from the custody of the present appellant from a hut near a rice mill in District Bastar. The school records and relevant documents were seized to ascertain the age of the victim. ******* On 20.11.2022, the victim was produced for medical examination before the Medical Officer at District Hospital, Mahasamund. As per the medical examination report, no external injury was found on her body, her secondary sexual characteristics were developed, and the hymen was not present. The doctor opined that the victim had been subjected to sexual intercourse, though the 4 exact duration could not be ascertained. Vaginal slides were prepared and her undergarments containing stains were seized and sealed for forensic examination. The appellant was also medically examined and was found capable of performing sexual intercourse. ******* Upon completion of investigation, offences under Sections 366 and 376(2)(n) of the Indian Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 were added. Thereafter, charge-sheet was filed before the Special Court (POCSO), Mahasamund against the appellant for the aforesaid offences. 4. After filing of charge sheet, the learned trial Court took cognizance of the offences. Thereafter, the charges were framed against the appellant for the offences punishable under Sections 363, 366 and 376(2)(n) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The appellant abjured his guilt, pleaded false implication and claimed to be tried. 5. In order to substantiate the charges, the prosecution examined 11 witnesses including the victim, her father, independent witnesses, the investigating officer and the medical experts, and exhibited relevant documents such as the First Information Report, seizure memos, medical reports, school records and the FSL report. The statement of the appellant under Section 313 of the Code of Criminal Procedure was recorded, wherein he denied all incriminating circumstances and pleaded innocence. No defence evidence was adduced. 6. Upon appreciation of the oral and documentary evidence available on record, the learned trial Court convicted the appellant under Sections 5 363, 366 and 376(2)(n) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced him as mentioned hereinabove. No separate sentence has been awarded for the offence under Section 376(2)(n) of IPC. Hence, this appeal. 7. Learned counsel for the appellant would submit that the impugned judgment of conviction is unsustainable in law and on facts, as the prosecution has failed to prove the essential ingredients of the alleged offences beyond reasonable doubt. It is submitted that the conduct of the victim, as reflected from her own statements in the cross- examination, clearly indicates that she had accompanied the appellant voluntarily, as she admitted that she had gone with the appellant up to outside the village by walking and did not raise any alarm or inform anyone. It was further argued that she has also admitted that she was in a love relationship with the appellant and that there are material omissions and contradictions in her statements, particularly regarding the allegation of taking her to Ranchi and prior incidents, which were not stated in her statement under Section 164 Cr.P.C., thereby rendering her testimony unreliable. ******* Learned counsel further argued that the medical evidence provided by Dr. Manisha Minj (PW-06) does not indicate any external or internal injuries on the body of the victim, which creates doubt regarding the allegation of forcible sexual assault. It was submitted that the doctor has only opined that sexual intercourse had taken place, but could not specify the time of such intercourse. With regard 6 to the FSL report, it was contended that although semen and human spermatozoa were detected on certain exhibits, but in view of the fact that the victim was engaged in consensual physical relation, the FSL report have no much significance. ******* It was also urged that the age of the victim has not been proved in accordance with law, as the prosecution has relied upon school records without examining the person who made the entries therein, and no birth certificate or ossification test report has been produced. It was further argued that the victim was aware that the appellant was a married man residing in front of her house, yet she maintained relations with him, which probabilizes the defence version of consensual relationship. Learned counsel thus submitted that in view of the material contradictions in the statements of the victim and other witnesses, and the failure to prove minority beyond doubt, the appellant is entitled to benefit of doubt. Accordingly, it was prayed that the appeal be allowed and the appellant be acquitted. 8. Per contra, learned counsel appearing for the State submitted that the prosecution has successfully proved the guilt of the appellant beyond reasonable doubt. It was argued that the written complaint lodged by the father of the victim (PW-1), duly supported by the investigation and the recovery of the victim from a hut near a rice mill in Bastar by Assistant Sub-Inspector Champu Kumar Sahu (PW-5), establishes that the victim was found in the company of the appellant. The recovery was effected in the presence of witnesses including Mahendra Yadav (PW-8). It was further submitted that the statements 7 of the victim (PW-2) and her father, recorded during investigation and before the Court, consistently indicate that the appellant had taken the victim on the pretext of marriage and subjected her to sexual relations. ******* Learned counsel further contended that the age of the victim has been established as below 18 years at the time of the incident, and therefore her consent is immaterial in the eyes of law. The medical examination conducted by Dr. Manisha Minj (PW-6) indicates that the hymen was absent/old torn and she opined that sexual intercourse had occurred, while the appellant was found capable of performing sexual intercourse as per the report of Dr. Vivek Patel (PW-7). The FSL report also reveals the presence of semen and human spermatozoa on the vaginal slides and certain articles seized during investigation, which lends corroboration to the prosecution case. ******* It was also submitted that the defence plea of consensual relationship is legally untenable in view of the minority of the victim. The appellant has failed to rebut the statutory presumptions under Sections 29 and 30 of the POCSO Act. Learned counsel, therefore, submitted that the trial Court has rightly appreciated the evidence on record and prayed for dismissal of the appeal. 9. We have heard learned counsel for the parties and considered their rival submissions made herein above and also gone through the records of the trial court with utmost circumspection. 10. The first and foremost question arises for consideration would be the age of the victim as to whether on the date of incident she was minor or not ? 8 11. The prosecution bears the burden to establish beyond reasonable doubt that the victim was below 18 years of age on the date of the incident so as to attract the provisions of the POCSO Act, 2012. In the present case, the trial Court has recorded the date of birth of the victim as 08.06.2006 and concluded that she was about 16 years and 5 months old at the time of the incident. However, a careful scrutiny of the record indicates that such finding is primarily based on school- related documents, without any detailed examination as to the source or authenticity of the entries recorded therein. 12. The school register (exhibit P-14C and P-15C) are sought to be proved by PW-3, who was the headmaster of the school. He stated in his evidence that the police has seized the school register of the school with respect to date of birth and age of the victim vide seizure memo (exhibit P-12). After retaining its attested true copy (exhibit P-14C and P-15C), the school registers were returned back to the school. As per the school register, the date of birth of the victim is 08-06-2006. In cross-examination, he admitted that he has not made entry in the said school registers exhibit P-14 and P-15) and he could not tell as to who made entry in the said school register. Even the person who made entry has not been mentioned in the school register. From the evidence of this witness, admittedly he is not the author of the school register and the basis on which the entries have been made in the school register, have not been disclosed by him. 13. The admissibility and evidentiary value of the school register has been considered by the Hon’ble Supreme Court in the matter of Alamelu 9 and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385. In Para 40, 42, 43, 44 and 48 of its judgment, 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 Purohit, 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 10 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 Jaiswal, 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 11 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 12 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." 14. 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 13 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 33 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, 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 14 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 hyper. technical 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 15 consonance with public documents, such as matriculation certificate, could be accepted by the Court or the 33 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." 15. 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 33 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, l.e. Committee or Board or Court. In the present case, concededly, only a transfer 16 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 17 an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (1) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year." 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis 18 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)(1) 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." ******* Further, although the victim was medically examined by Dr. Manisha Minj (PW-06), the medical report does not provide any opinion regarding her age. No ossification test or radiological examination was conducted, despite the fact that such scientific evidence could have lent assurance to the determination of age. The medical evidence is thus limited to indicating sexual maturity and does not conclusively establish minority. 16. Reverting to the facts of the present case, the victim disclosed in her evidence that her date of birth is 08-06-2006. In cross-examination, 19 she admitted that she disclosed her date of birth as per the date of birth mentioned in the Aadhaar card. However, there is no Aadhaar card produced by the prosecution. She also did not disclose the date of birth of her younger brother. PW-1, father of the victim did not disclose any date of her birth, but he stated that the victim is aged about 16 years. He admitted in his cross-examination that at the time of giving his statement to the police, he has not disclosed the date of birth of his daughter. He also admitted that he did not know her date of birth. He further stated that he did not tell as to how her date of birth has been recorded in his police statement. In further cross- examination, he stated that he did not know about the date of birth of any of his children. He also did not know who has taken the victim for her admission in the school. He denied that he has taken the victim to the school for her admission. There is no other document like birth certificate or ossification test report produced by the prosecution to prove her age. Considering the nature of evidence produced by the prosecution and also in view of the aforesaid judgments passed by our Supreme Court, the finding recorded by the learned trial Court that victim was minor on the date of incident appears to be perverse and we set aside the said finding. 17. With respect to the kidnapping and rape upon the victim is concerned, we again examine the evidence produced by the prosecution. 18. The victim (PW-2) has stated in her evidence that the appellant took her to Ranchi on the pretext of marriage where he committed rape upon her. After 3-4 days staying at Ranchi, he took her to Bastar, 20 Chhattisgarh by bus. They stayed there for a day and committed sexual intercourse with her. At the time when they were at Ranchi, she informed her elder brother from the mobile phone of the appellant. When they were at Bastar, her parents along with the police personnel came there and took her back. In cross-examination, she admitted that she was having love affair with the appellant. In her earlier statement made in the Court, she had not disclosed that the appellant took her to Ranchi. The appellant is her neighbour. She knew that the appellant was married. She also admitted that before the incident, the appellant has made physical relation with her in his house but she has not made any complaint to anyone. She accompanied the appellant up to the outskirt of the village by walking and has not made any alarm and has not made any complaint to anyone on the way. The appellant himself gave his mobile phone for conversation with her parents. From the evidence of this witness, it transpires that she herself accompanied the appellant up to Ranchi and from where they proceeded towards Bastar by bus. However, there is no evidence by the victim that she, at any point of time, raised alarm that the appellant is kidnapping her or committed forceful sexual intercourse with her against her will or consent. 19. In such state of evidence, it clearly reveals that she was the consenting party in eloping with the appellant and making physical relation with her. She had ample opportunity to protest or resist by raising her alarm or by giving teeth bite or scratch mark on his body while making physical intercourse by him. She herself went along with the App by walking up to the outskirts and thereafter by bus. The entire 21 sequence of incident clearly demonstrates that she was the consenting party, as she herself admitted that she was having love affair with the appellant and they made physical relation prior to the incident also in the house of the appellant. 20. 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 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 22 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". 21. From the conduct of the victim and in view of the aforesaid judgment of S. Vardarajan (supra), it cannot be said that the appellant has kidnapped the victim and procured the minor girl, as the victim is not found to be minor and no offence of either kidnapping or procuring a minor girl is made out against the appellant. 22. Recently in the matter of Tilaku alias Tilak Singh Vs. the State of Uttrakhand, the judgment passed in the matter of S. Varadarajan (supra) has been relied upon by the Hon’ble Supreme Court in CRA No. 183 of 2014 decided on 06-02-2025. 23. PW-1, father of the victim, who lodged a complaint to the police and on 23 his complaint, FIR exhibit P-2) was registered. He stated in his evidence that when they were in search of the victim, after two days his elder son received a telephone call from the victim, who informed him that she was at Ranchi. Thereafter he lodged the report. After a day of lodging of the report, the police informed him that the victim was recovered and then they had gone to Bastar along with his family members and the police personnel where he found the victim near a hut at Dhan mill at Bastar. They took her back and then the victim disclosed that the appellant allured her for marriage and committed sexual intercourse with her. In his cross examination, there are certain omissions and contradictions in his 161 CRPC statement and his evidence is with respect to the information disclosed by the victim to him when she was recovered. Though the suggestion was given that victim was the consenting party in eloping with the appellant, but he denied. When the victim herself is found to be a consenting party in eloping with the appellant and making physical relation with him, the evidence of her father, who stated on the information disclosed by the victim have no much significance. 24. PW-6, Dr. Manisha Minj, who medically examined the victim, had not found any external or internal injuries on her body. She proved her MLC report (exhibit P-19). There is no injury or protest found on her body. PW-8 is the relative of the victim, who also stated with respect to the information disclosed by the mother of the victim and he accompanied with the parents of the victim when she was found at Bastar. There are certain omissions and contradictions appears in his cross examination which makes his evidence shaky. 24 25. From all these evidences, it cannot be said that the victim is having a status of the witness of that sterling quality on which the appellant can be convicted. The sterling witness has been considered by the Hon’ble Supreme Court in the matter of Santosh Prasad @ Santosh Kumar v. State of Bihar, 2020 (3) SCC 443, which is reproduced herein below: “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 25 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 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.” 26. The version of the victim commands great respect and acceptability, 26 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. From the overall evidence produced by the prosecution, it can safely be said that the evidence produced by the prosecution are not sufficient to hold conviction of the appellant for the alleged offence, as there are sufficient material available in their evidence to disbelieve them under the facts and circumstances of the case. When the evidence of the victim is not found credible and there is reasonable suspicion on her evidence, then the conviction cannot be made solely on the basis of the statement of the victim. Therefore, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt against the appellant to convict him for the offence under the IPC or under the POCSO Act. 28. In the result, the appeal filed by the appellant is allowed. The impugned judgment of conviction and order of sentence dated 27 13.12.2023 passed by the Special Judge (POCSO Act), Fast Track Court, Mahasamund, is hereby set aside. The appellant, Siyaram Yadav, is acquitted of all the charges under Sections 363, 366 and 376(2)(n) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012. 29. The appellant is reported to be in jail since 20.11.2022. He shall be released forthwith, if not required in any other case. 30. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Siyaram Yadav is directed to furnish a personal bond for a sum of Rs. 25,000/- with one 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. 31. Registry is directed to transmit the trial Court record along with a copy of this order to the Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice ved