Janjgir-Champa, Chhattisgarh v. 1 - State Of Chhattisgarh Through - S.H.O. P.S. Champa, District - Janjgir
Case Details
1 2025:CGHC:8123-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1509 of 2021 1 - Som Kumar Sahu @ Shiva Sahu S/o Chhotelal Sahu Aged About 20 Years R/o Village - Hathnewra, P.S. Champa, District - Janjgir-Champa (Chhattisgarh), District : Janjgir-Champa, Chhattisgarh ... appellant versus 1 - State Of Chhattisgarh Through - S.H.O. P.S. Champa, District - Janjgir - Champa (Chhattisgarh), District : Janjgir-Champa, Chhattisgarh ... Respondent(s) For appellant : Ms. Nirupama Bajpai, Advocate For Respondent(s) : Mr. Shailendra Sharma, P.L. Hon'ble Hon'ble Mr. Ramesh Sinha, Chief Justice Mr. Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 17.02.2025 1. The matter has been listed on consideration on I.A. No. 1 which is an application for suspension of sentence and grant of bail and with the concent of the parties, the matter has been heard finally. 2. The present criminal appeal has been filed under Section 374 (2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 08/09/2021 passed by learned Special Judge (Protection 2 of Children From Sexual Offence Act, 2012), Dist- Janjgir-Champa (C.G.) in Special Sessions Case No. 32/2020 whereby the appellant has been convicted and sentenced as below:- S.No. Conviction Sentence 1. Under Section 363 of IPC R.I. for 03 years and fine of Rs. 500/- in default of fine additional R.I. for 10 days. 2. Under Section 366 of IPC R.I. for 5 years and fine of Rs. 1000/- in default of payment of fine additional R.I. for 20 days. 3. Under Section 06 of POCSO R.I. for 20 years and fine of Rs. 5000/-, in Act. default of payment of fine further R.I. for 100 days. (All the sentences shall run concurrently)
Facts
3. Brief facts of the case are that on 26/02/2020, the victim (PW/1) has made a written complaint to the Police (Ex-P/1) with the allegation that the appellant who is her cousin brother and working at Shankra City, Jaipur (Rajasthan) allured her and took her with him on 27.11.2019 to Jaipur by train from her village and kept her with him in a hutment. He kept her for about 1 and ½ month and committed rape upon her regularly. Somehow, she came out from his clutches and went to railway station Jaipur, where she was detain by persons of child help line and taken her to girls observation home at Gandhi Nagar, Jaipur where she was residing from 10.01.2020 to 11.02.2020. Thereafter, she was being sent from girls observation home, Jaipur to girls observation home, Jangir-Champa, from where her mother was called and handed her over to her mother on 25.02.2020. She disclosed the incident to her family members and then lodged the report. Based on the written complaint, FIR (Ex-P/13) was registered against the appellant for the offence under Section 363, 376(2)(i) and 376(2)(n) of IPC and Section 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 ( in short “POCSO Act”). The victim was being sent for her medical examination to Govt BDM 3 Hospital, Champa where she was being medically examined by PW-9 Dr. Sarita Nagrachi, who after her medical examination, gave report (Ex-P/20). While medical examination of the victim, no external injuries have been found on her body and opined that no signs of forceful sexual intercourse was found. She was referred for X-Ray examination for age determination. Two slides of her vaginal swab were prepared, sealed and handed over to the Police for its chemical examination. Spot map (Ex-P/3) was prepared by the Police and (Ex-P/4) was prepared by the Patwari. Spot map Panchnama (Ex- P/5) was also prepared by Patwari. With respect to the age and date of birth of the victim, the Police has seized the school register from Govt. Primary School, Hathnewara vide seizure memo (Ex-P/11) and after retaining the attested true copy of school register (Ex-P/10), the original register was returned back to the school. The victim was sent for her X-Ray examination for determination of age to District Hospital, Janjgir where Dr. R.S. Sidar (PW/8) has conducted the ossification test of the victim and gave his report (Ex-P/20). According to the ossification test report, the age of the victim is opined that she was above 14 years and below 16 years of age. The appellant was arrested on 19/03/2020 and he too was sent for his medical examination to Govt B.D.M Hospital, Champa where Dr. Brijmohan Jagriti has examined him and gave his report, by which the appellant was found to be capable to perform sexual intercourse. Statement under Section 161 of Cr.P.C. of the witnesses as well as Statement under Section 164 of Cr.P.C. of the victim have been recorded and after completion of the investigation, charge-sheet was filed against the appellant for the offences under Sections. 363, 376 (2)(i) & 376 (2)(n) of IPC & under Section 4 and 6 of POCSO Act before the learned trial Court. 4. The learned trial Court has framed charge against the appellant for the offence under Sections 363, 366, 376 (3) in alternative 376 (2)(n) of IPC and 4 Section 5(l)/6 of POCSO Act. The appellant abjured his guilt and claimed trial. 5. In order to prove the charge, the prosecution has examined as many as 11 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him, plead innocence and submitted that he has been falsely implicated in the offence. 6. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in Para-1 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 is material omission and contradictions in the evidence of prosecution witnesses which cannot be made basis for conviction of the appellant for the offence in question. There is no legally admissible evidence produced by the prosecution with respect to the age of the victim so as to hold that on the date of the incident she was minor and below 18 years of age. The school record has not been proved by the prosecution in accordance with law by examining its author and the basis on which the entries made in the school register has also not been proved by the prosecution. In the ossification test report, the victim is opined to be the age of 14 to 16 years but there is error of margin of two years on either side and by taking the error of margin in positive side, the victim attains the age of her majority. The ossification test report is not conclusive proof the age of the victim and it is only an opinion. She would further submit that the victim is a major girl, having love affair with the appellant and she herself eloped with him without raising any objection. Both of them had gone to Jaipur by train, no complaint have been made by her to the passenger of the train or even while residing at Jaipur with the appellant she has not raised any objection and have not made any complaint to the persons of the vicinity. She travelled 5 up to Jaipur and residing with the appellant for about 1 and ½ month which clearly shows that she was the consenting party in making physical relation with the appellant and therefore, no offence either of kidnapping or rape have been made out against the appellant and he is entitled for acquittal. 8. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasons doubt, but for minor omission or contradictions, the evidence of prosecution witnesses are fully reliable. The victim was proved to be minor on the date of incident by the school records as well as by her ossification test report. The school record has been proved by PW/3 who is the Head Mistress of the school and the ossification test report is proved by PW/8 Dr. R.S. Sidar. There is sufficient evidence on the record that the victim was minor on the date of incident. She was being kidnapped by the appellant and kept her away from her lawful guardianship at Jaipur and committed rape upon her. She was minor and therefore, the evidence available on record are sufficient to hold the appellant guilty for the commission of offence of kidnapping and rape which the learned trial Court has rightly appreciated in its impugned judgment and therefore, the appeal filed by the appellant is liable to be dismissed. 9. We have heard learned counsel for the parties and perused the record. 10.The first question arose in the case as to whether the victim 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/10) which is sought to be proved by PW/3, who is the incharge Head master of the school and also from the ossification test report (Ex-P/20) which is sought to be proved by Dr. R.S. Sidar (PW/8). 12.The PW/3 has stated in his evidence that the he is incharge head master of the Govt. Primary School Hathnewara since 2018. The Police has seized the school register from him with respect to the age and date of birth of the 6 victim vide seizure memo (Ex-P/11). After retaining the attested true copy of the school register (Ex-P/10c), the original school register (Ex-P/10) is returned back to the school. According to the school register, the date of birth of the victim is 25.03.2005. In cross-examination, he admitted that in the school register (Ex-P/10c), the entries are not in his own hand writing. Since, the entries is not in his own hand writing, he could not tell as to who has got made entry in it and when the victim has got admitted in the school. He also admitted that he did not know as to on what basis, the date of birth of the victim is recorded in the school register. From the evidence of this witness, it is quite vivid that he is not the author of the school register and the basis on which the entries have been made in the school register, is also not produced by the prosecution. 13.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 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.
Legal Reasoning
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:- 7 "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to 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:- 8 "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." 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 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, 9 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 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 10 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." 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 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. 11 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 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 12 (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." 16.The other piece of evidence is ossification test report. (PW/8) Dr. R.S. Sidar, has stated that on 28.02.2020, X-Ray plates of the victim was produced before him and sought an opinion with respect to her age. After examining the X-Ray plates, he opined that the age of the victim is more than 14 years and less than 18 years and his report is (Ex-P/20). In cross examination, though, he denied that in the ossification test report, there may be error of margin of two to three years but he voluntarily stated as per the medical science, there may be variation of six months on either side. This witness has given his opinion about age on the basis of examination of X-Ray plates, but he himself has not taken X-Ray of the victim. 17.The ossification test report is an opinion of doctor based on his experience but it is not an exact medical science to determine the actual age of victim. There may be variation of two years on either side . The Hon’ble Supreme Court in the matter of Jaya Mala Vs. Home Secretary, Govt. of Jammu and Kasmir & Ors., (1982) 2 SCC 538, has observed in Para 9 that:- “ 9. ………….However, it is notorious and one can take judicial notice that the margin of error in age ascertained 13 by radiological examination is two years on either side……………...” 18.The Hon’ble Supreme Court in the matter of Madan Gopal Kakkad Vs. Naval Dubey, reported in (1992) 3 SCC 204 in Paras 34 and 35 as under:- 34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclu-sion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. 35. Nariman, J. in Queen v. Ahmed Ally while expressing his view a on medical evidence has observed as follows: "The evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination of however, confidently, he may speak, is ordinarily a matter of mere opinion." circumstances, 19.The Hon’ble Supreme Court in the matter of Vinod Katara Vs. State of U.P. reported in (2023) 15 SCC 210 in Para 61 and 63 as under:- “61. The bone ossification test (hereinafter "the ossification test") is a test that determines age based on the "degree of fusion of bone" by taking the x-ray of a few bones. In simple words, the ossification test or osteogenesis is the process of the bone formation based on the fusion of joints between the birth and age of twenty- five years in an individual. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. The most common method used for the calculation of the bone age is radiography of the hand and wrist until the age of 18 years beyond which the medial age of clavicle is used for bone age calculation till the age of 22 years as the hand and wrist bone radiographs cannot be computed beyond 18 years of age as the elongation of the bone is complete after adolescence. However, it must be noted that the 14 ossification test varies slightly based on individual characteristics, therefore the ossification test though is relevant however it cannot be called solely conclusive. 63. In Vishnu v. State of Maharashtra1, this Court clarified that the ossification test by the medical officer is to assist the court which falls under the ambit of medical expert opinion i.e. advisory in nature and not binding. However, such an opinion cannot override ocular or documentary evidence, which has been proved to be true and admissible as they constitute "statement of facts". This Court in Vishnu2 placed reliance on Madan Gopal Kakkad v. Naval Dubey, to hold that a medical witness is not a witness of fact therefore the opinion rendered by such a medical expert is merely advisory until accepted by the court, however, once accepted, they become the opinion of the court. 20.The victim has stated in her evidence that her date of birth is 15.03.2005. In cross-examination, she stated that she is having two other sisters and she is the middle sister of other two. She did not know the date of birth of her elder sister. 21.(PW/2) is the mother of the victim, has not stated any date of birth of the victim but stated that her daughter was aged about 16 years on the date of incident. In cross-examination, she stated that she could not know the date of birth of her children. She also did not know as to on which year she has got married but she admitted that she has married since 25-26 years back. She admitted that after 1½ years of her marriage, her elder daughter was born and after two years, the victim was born. She did not know as to after birth of the victim, whether her birth was recorded in the panchayat or not. She has not having her birth certificate with her. She herself had taken the victim to the school for her admission. She has taken 2-3 papers with respect to her date of birth but what is there in the said papers she did not know. 22.(PW/6) is the father of the victim has also not disclosed any date of her birth and has stated that on the date of incident, his daughter was aged about 15- 1 2 (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217 (1992) 3 SCC 204 : 1992 SCC (Cri) 598 15 16 years. He admitted in cross-examination that he did not know the date of birth of his children. He stated that he did not have any birth certificate of the victim from panchayat. He further stated that he has got married since 22 years back. 23.From the oral evidence also, the prosecution could not establish the age of the victim beyond reasonable doubt that she was minor and less than 18 years of age. The nature of evidence produced by the prosecution is not of that sterling quality on which it can be determined that the victim was minor on the date of incident. In absence clinching or cogent evidence, it cannot be hold that the victim was minor on the date of incident and less than 18 years of age yet the learned trial Court has held her minor. 24. So far as, the offence of kidnapping, procuring a minor girl for illicit intercourse and the offence of rape are concerned, we again examined the evidence of the victim (PW/1). 25. The victim has stated in her evidence that, the appellant is her cousin brother. He was working at Jaipur (Rajsthan) and at the time of incident, he came to his village. He allured her and took her with him to Champa to his village and from Champa, he took her to Jaipur by train. He kept her in hutment at Jaipur and committed rape upon her regularly up to one month. When she was able to flee from the house, she went to Jaipur railway station, where the police persons detained her and asked about her and thereafter she was sent to child welfare home at Jaipur. After about one month, she was being sent to child welfare home at village Kokhara. When her parents came to know about her, she was being sent to her parents and thereafter she lodged the report to the Police. In cross-examination, she stated that she had gone to Champa from Hathnewara by Bus and after leaving her at Champa railway station alone, the appellant had gone to brought the travel ticket and meals. She admitted that there were number of passengers in the train and she was free to move in the train also. She admitted that she has not made 16 any complaint to anyone in the train that the appellant is kidnapping her. She also admitted that at Jaipur, she was residing in her house alone whenever the appellant had gone to his work or had gone to market. The place where they were residing, is surrounded by the houses of others but she has not disclosed anyone about the incident also. From the evidence of the victim it appears that she voluntarily accompanied with the appellant up to Jaipur where she was resided with him for more than one month. She has not raised any objection and has not made any complaint to anyone while traveling by train even while residing with him at Jaipur. She has not made any complaint to anyone in the vicinity where she was residing. Even when the appellant has made physical relation with her, she has not raised any alarm and not tried to save herself and there is no evidence that she tried to save herself by giving nail scratch mark or teeth bite on the body of the appellant, rather the evidence clearly suggests that the victim was the consenting party in making physical relation with the appellant and she on her own will had gone with him up to Jaipur. 26. PW/2, mother of the victim has stated in her evidence that after about one month of missing of her daughter, someone has informed her that her daughter is found at Jaipur but she was not in the position to go to Jaipur and thereafter, her daughter was being taken to Kokhara child centre from where he took her daughter with her. Her daughter has informed her about the incident and thereafter, she had taken her daughter to the Police Station. In cross-examination, she did not know as to when her daughter has gone and when she returned back, but she returned back about 2 and ½ months. She further admitted that in between that period, she had not any conversation with her. She admitted that when her daughter was missing she has not made any complaint to Police Station about her missing. 27. PW/6, is the father of the victim, who stated that when he returned back from his duty, his younger daughter has informed that the appellant had come to 17 his house and the victim had gone with him. He started searching her but could not found any clue of her. After about one and ½ month-2 months, he received telephonic call from child welfare centre, Janjgir and informed about his daughter and then he along with his wife took her with them. He himself has not asked about the incident from the victim and the victim has also not informed anything to him. In cross-examination, he admitted the property dispute between him and the father of the appellant and Police report was also made by the father of the victim against his wife. He further admitted that when his younger daughter has informed him that the victim has gone with the appellant, he has not lodged any report to the police. 28. PW/9 Dr. Sarita Nagarchi, who medically examined the victim has not found any external injury on her body even there is no FSL report with respect to the presence of semen and sperms in the vaginal swab of the victim which may connect the appellant with the offence in question. When the victim is found to be major and from the evidence, it appears that she herself has voluntarily gone with the appellant up to Jaipur and resided with him for about more than one month, it cannot be said that, she was being kidnapped by the appellant. 29.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 18 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". 30.The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim's evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 31.From the foregoing reasons, we are of the considered opinion that in absence of any cogent and clinching evidence, the appellant cannot be convicted for the alleged offence and therefore, the appeal filed by the 19 appellant is allowed. The impugned judgment of conviction and sentences passed against the appellant are set aside. The appellant is acquitted from all the charges. The appellant is reported to be in jail since 19/03/2020. He be released forthwith if not required in any other case. 32.Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Som Kumar Sahu @ Shiva Sahu 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. 33.The lower 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) Sd/- (Ramesh Sinha) Judge Chief Justice Sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.02.25 10:53:36 +0530