Sahil Sahu @ Tingu @ Sukalu Sahu Vs State of Chhattisgarh

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2025:CGHC:313-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 1147 of 2024

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Sahil Sahu @ Tingu @ Sukalu Sahu S/o Shri Rajkumar Sahu Aged About 20 Years R/o Narayanpur Khaira, P.S. Sargaon, District Mungeli, Chhattisgarh, Present address : Atal Awas J. Block, Chingrajpara, P.S. Sarkanda, District Bilaspur, Chhattisgarh

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... Appellant

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versus

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State Of Chhattisgarh Through The District Magistrate, District Bilaspur Chhattisgarh

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... Respondent

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(Cause title taken from Case Information System)

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For Appellant	: Mr. M.P.S. Bhatia, Advocate
For Respondent/State	: Mr. Malay Kumar Jain, Panel Lawyer

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge

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Order on Board

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Per Ramesh Sinha, C.J.

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03/01/2025

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Vide order dated 02.08.2024, the notice issued to the father of the victim (PW-1) has been served upon him, but no one appears on his behalf to record his submission in the case, therefore, with the consent of the parties, the matter has been heard finally at the motion stage

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Digitallysigned byVEDPRAKASHDEWANGAN

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itself.

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The present appeal has been filed by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 12.01.2024 passed by learned Additional Sessions Judge/First FTSC, Bilaspur, in Special Sessions Case (POCSO Act) No. 130 of 2022, whereby the appellant has been convicted and sentenced in the following manner:-

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Conviction	Sentence
U/s. 363 of IPC	R.I. for 3 years and fine of Rs. 100/-, in default of payment of fine additional imprisonment of 10 days.
U/s. 366 of IPC	R.I. for 5 years and fine of Rs. 200/-, in default of payment of fine additional imprisonment of 20 days.
U/s. 376(3) of IPC	R.I. for 20 years and fine of Rs. 500/-, in default of payment of fine additional imprisonment of 50 days.
U/s. 5(L)/6 of POCSO Act, 2012 (since the appellant has been sentenced R.I. for 20 years and fine of Rs. 500/-, in default of payment of fine additional imprisonment for 50 days, no separate sentence has been awarded to the appellant for his conviction under Section 376(2)(n) of IPC)	R.I. for 20 years and fine of Rs. 500/-, in default of payment of fine additional imprisonment of 50 days.

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The brief facts of the case are that the father of the victim (PW-1) had lodged a missing report on 24.07.2022 that his minor daughter is missing since 23.07.2022 and has not returned from her school and her whereabouts could not be traced out. The police has registered the FIR (exhibit P-1) for the offence under Section 363 of IPC against unknown person and started investigation. During the investigation the

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victim was recovered on 05.08.2022 from the possession of the appellant at New Bus Stand, Tifra, Bilaspur and a recovery Panchnama/Exhibit P-9 was prepared. The victim was sent for her medical examination to District Hospital, Bilaspur, where she was medically examined by PW-18/Dr. Mamata Saluja, who after medically examined her gave report/Exhibit P-13. During her examination no external injuries have been found on her body. Two slides of her vaginal swab were prepared, sealed and handed over to police for chemical examination. The victim was referred for her X-ray examination for age determination and opined that the victim is habitual of intercourse.

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*******Spot map (exhibit P-6) was prepared by the police and Exhibit P-5 was prepared by the Patwari. With respect to the age and date of birth of the victim, the police has seized the school register from Government Higher Secondary School, Tifra, Bilaspur vide seizure memo/exhibit P-22 and after retaining the attested true copy of the school register/exhibit P-23C, the original register was returned to the school. According to the school register, the date of birth of the victim is 28.03.2008. The appellant was arrested on 05.08.2022 and he too was sent for his medical examination to District Hospital, Bilaspur, where PW-16/Dr. Prashant Gupta has medically examined him and no injuries have been found on his body and opined that there is no evidence found which can prove that he is unable to perform sexual intercourse and his report is exhibit P-27A. The vaginal slide and underwear of the victim and the underwear of the appellant also were sent for chemical examination to FSL, Bilaspur from where report

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exhibit P-34 was received. According to the FSL report, no semen and sperm were found in the vaginal slide and underwear of the victim. However, in the underwear of the appellant, semen and sperm were found.

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*******The statement of the victim as well as other witnesses under Section 161 of CRPC and the statement of the victim under Section 164 of CRPC have been recorded and after completion of usual investigation, charge sheet has been filed before the learned trial Court for the offence under Sections 363, 366A and 376 of IPC and Section 4 of POCSO Act.

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The learned trial Court has initially framed charge against the appellant for the offence under Sections 363, 366A, 376(3) of IPC and Section 5L/6 of POCSO Act. The appellant denied the charge and claimed trial. After recording evidence of the parties, on 06.01.2024, the charge was amended and it was re-framed as under Sections 363, 366, 376(3) and 376(2)(n) of IPC and Section 5L/6 of POCSO Act. Opportunity to raise objection was given to the appellant, but he submitted that he has no objection in amending the charge and has not claimed for re-cross examination of any witnesses.

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In order to prove its case, the prosecution has examined as many as 18 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence.

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After appreciation of oral as well as documentary evidence led by the

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prosecution, the learned trial Court has convicted and sentenced the appellant. As mentioned in the earlier part of the judgment, hence this appeal.

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Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. The school register has not been proved by the prosecution in accordance with law to show that the victim was minor on the date of incident. The author of the school register has not been examined. In absence of any cogent and clinching evidence with respect to the age of the victim, she cannot be held minor. No any birth certificate or ossification test report have been submitted by the prosecution to prove her age. He would further submit that the victim, being a major girl, having love affair with the appellant, herself eloped with him and has made consensual physical relations without raising any alarm or any protest. No injuries have been found on the body of the victim. When she herself had gone with the appellant, no offence of either kidnapping or procuring a minor girl or even the offence of rape have been made out against the appellant and he is entitled for acquittal.

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On the other hand, the learned counsel for the State opposes the submissions made by learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omission or contradictions, the evidence of the victim as well as other witnesses are reliable to convict the appellant. The age of the victim is proved by the entries in the school

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record/Exhibit P-23C, which is proved by PW-9, who is the Headmistress of the school. From the school record, the victim is found to be minor on the date of incident and she was being kidnapped by the appellant and kept away from her lawful guardianship. She was being procured by the appellant for illicit intercourse and has committed rape upon her repeatedly. Therefore, after considering the entire evidence available on record, the learned trial Court has rightly convicted the appellant and sentenced him and his appeal is liable to be dismissed.

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We have heard learned counsel for the parties and perused the record.

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The first and foremost question arises for consideration is the age and date of birth of the victim as to whether on the date of incident she was minor or not?

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The prosecution has mainly relied upon the school register/exhibit P- 23C, which is sought to be proved by PW-9, who is the Headmistress of the school. She stated in her evidence that since she is posted as Headmistress of the school since last 10 years, the police has seized the school register from her vide seizure memo/exhibit P-22. After retaining the attested true copy of the school register/exhibit P-23C, the original register was returned back. According to the school register, the date of birth of the victim is 28.03.2008 and she was admitted on 29.06.2019 in class 6^th. in the school. In crossexamination, she admitted that the relevant entries of the date of birth of the victim has not been made by her. She further admitted on what basis the entries relating to her date of birth has been made, she did

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not know. She voluntarily stated that the entries have been made on the basis of TC and mark sheet. Except the school register/exhibit P- 23C, there is no documentary evidence led by the prosecution.

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PW-2/the victim, has stated in her evidence that she did not know her date of birth, but the year of her birth is 2008. When the leading question has been asked from her by the prosecution, she admitted that in the school, her date of birth is recorded as 28.03.2008. In cross-examination, she stated that she did not know, as to who has got recorded her date of birth in the school. She had studied in Silver Bells School from KG-1 up to class-3. She has got admitted in the Government Higher Secondary School in class-4^th . She did not know, as to whether her birth certificate has got prepared or not. She also did not know as to on what basis her date of birth is recorded in Tifra school.

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PW-1/the father of the victim, has stated that his daughter is aged about 14 years and her date of birth is 28.03.2008. In crossexamination, he stated that he has not got prepared the birth certificate of his daughter. He did not remember, as to who has got her admitted in the school. He further admitted that on what age she was admitted in the school. He further stated that the victim was admitted in Silver Bells Private School, Tifra in nursery class, but he could not remember as to whether any certificate/mark sheet was given to her from Silver Bells School. He admitted further that from Silver Bells School no certificate or mark sheet was provided to police. He further admitted that on what basis the date of birth of the victim is recorded in

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the school, he did not know. He submitted her class 5^th and 8^th mark sheet to the police.

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PW-3, who is the mother of the victim has also stated that the date of birth of her daughter is 28.03.2008. In cross examination, she admitted that they have not got prepared her birth certificate and she has not gone to school for her admission. She further admitted that on what basis her date of birth is recorded in the school, she did not know and she has not disclosed her date of birth to the police at the time of recording of her police statement.

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PW-5, uncle of the victim has also did not know about her date of birth.

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The admissibility and evidentiary value of the school register for determination of the age of the victim has been considered by the Hon’ble Supreme Court in the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385. In paragraphs 40, 42, 43, 44 and 48 of its judgment, the Hon’ble Supreme Court has observed as under:

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"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

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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.

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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:-

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"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."

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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:-

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"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".

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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.

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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:-

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"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

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he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

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In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &

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Others, 2022 (8) SCC 602 , while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under:

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"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

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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.

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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.

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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.

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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.

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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 subsection (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.

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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.

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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.

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33.8. If two views are possible on the same

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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.

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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.

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33.10. Any document which is in 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.

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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."

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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:

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"14, Section 94 (2)(iii) of the 33 Act clearly

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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 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.

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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:

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"20. Rule 12 of the JJ Rules, 2007 deals with

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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: (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."

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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:

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"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

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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.

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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."

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From perusal of the record, it appears that except from the school register/exhibit P-23C, there is no other documentary evidence led by the prosecution to prove her age. In absence of any documentary evidence regarding her date of birth or age, like any Kotwari register, birth certificate or even any ossification test report, only on the basis of oral evidence, it would not be safe to hold the age of the victim that she was minor on the date of incident, particularly when the oral evidence is based on the school entries and there is no basis on which the date of birth of the victim is recorded in the school register. Further, the said the school register/exhibit P-23C is of class 6^th and there is no evidence of initial schooling of the victim. Therefore it is very difficult to hold for this Court that the victim was minor on the date of incident.

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So far as the offence of kidnapping and rape are concerned, we again examined the evidence of the victim.

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PW-2, the victim has stated in her evidence that she knew the appellant and 2-3 months back, when she was going to school, the appellant proposed her that he will marry with her. She accompanied with the appellant and then they had gone to the house of maternal aunt of the appellant at Bilaspur from where they changed their clothes and had gone to Delhi by train. They stayed for a day in his friend's house at Delhi and thereafter they had gone to Allahabad by train. They stayed there together for 2-3 weeks, where the appellant had made physical relation with her 4-5 times. Since they feel short of their funds and their amount were spent, they are returning to their village and came to Bilaspur Bus Stand, where they have caught by her uncle and police. When the leading question was asked from her by the prosecution, she admitted that the appellant came to her tenant house to meet him and when she was going to school, he proposed her. The appellant given the small gifts occasionally and she too was having the talking terms with him. She admitted that on the date of incident she left her house along with her clothes and Rs. 600/- cash. She had gone along with the appellant to his maternal aunt's house and thereafter had gone to railway station Bilaspur. The appellant took her to Allahabad and they were resided in a rented house. She further admitted that the appellant took her in Sai Mandir, at Allahabad, applied vermilion on her head and after garlanding Mangalsutra and considering that she is his wife, he made physical relation with her. She further admitted that when her landlord came to know that a

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report has been lodged against the appellant, he has got vacated the rented house and while returning back they have caught at Bilaspur Bus Stand. In cross-examination, she admitted that while going with the appellant and residing together with him, she has not made any complaint to anyone that the appellant kidnapped her. She admitted that on the way to school, the houses of her known persons are there are there. She even has not disclosed about the incident to her friend. She returned back from Allahabad by train. From the evidence of this witness, it is amply clear that she has not raised any alarm and has not made any complaint while traveling with the appellant up to Delhi and Allahabad, even while staying with him at Allahabad, she has not made any complaint to anyone of the vicinity, where she was residing in rented house or even she has not informed her landlord.

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PW-1, father of the victim has stated in his evidence that when his daughter is missing, he lodged missing report to the police and after about 10-11 days, when the police has got information, he was being called by the police at police station and his brother had gone with the police and subsequently informed that his daughter is recovered from Bus Stand, Bilaspur. He admitted in his evidence that the appellant had made physical relation with his daughter, considering that both of them have married. He further admitted that when the victim came back to his house, she has not disclosed any incident to him, but she disclosed the incident to her mother. He further admitted that her friends have also not disclosed anything about his daughter.

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PW-3, the mother of the victim has also stated that when the victim

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was missing, they have lodged the missing report and after some days, she was recovered and brought by the police. The victim has not disclosed anything to her, but in her presence she disclosed the incident to Mahila Police. She disclosed that the appellant took her to Allahabad, performed marriage with her and they were resided together as husband and wife. When the leading question was asked from her, she admitted that the appellant took her to Delhi, from where took her to Allahabad, performed marriage at Sai Mandir at Allahabad by applying vermilion on her head and garlanding Mangalsutra and thereafter made physical relation with her. When they feel shortage of their fund, they return back to Bilaspur.

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PW-5, the uncle of the victim has also stated that when the victim was missing, they have lodged the missing report. During the search of the victim, they came to know that she had gone with the appellant and there is suspicion on him, which was informed to the police. On 05.08.2022, the victim was recovered from the possession of the appellant from Tifra Bus Stand and recovery Panchnama/exhibit P-9 was prepared. When she returned back, she disclosed about the incident that the appellant allured her and kidnapped her, took her to Delhi and Allahabad, applied vermilion on her head and made physical relation with her. When their fund was finished they returned back to Bilaspur. In cross examination, he too has stated that he has not seen the appellant and victim together and they only raised suspicion that the appellant has kidnapped the victim.

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PW-18, Dr. Mamata Saluja, who medically examined the victim has not

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found any external injuries on her body and found the victim habitual for sexual intercourse. There is no sign of any protest on her body. Even from the FSL report/exhibit P-34, no semen and sperm were found either on the vaginal side of the victim or her underwear.

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In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon'ble Supreme Court has held that:

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"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.

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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

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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".

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The version of the prosecutrix 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 prosecutrix's evidence, then it will not be safe to rely on the said version of the prosecutrix. There is contradiction and omissions in the statement of the prosecutrix 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 prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix 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 leveled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case.

¶117

The aforesaid evidence available on record are not unerringly pointed towards guilt of the appellant that he kidnapped the victim and procured her for illicit intercourse and has committed rape upon her. When the prosecution failed to prove that she was minor on the date

¶118

22

¶119

of incident and when it is found that she herself had gone with the appellant on her own will, they were having frequent consensual physical relations, it can safely be held that no offence as alleged has been proved by the prosecution against the appellant.

¶120

In the result, the appeal filed by the appellant is allowed . The impugned judgment of conviction and sentence is hereby set aside . The appellant is acquitted from the alleged offence. The appellant is reported to be in jail since 05.08.2022. He be released forthwith if not required in any other case.

¶121

Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Sahil Sahu @ Tingu @ Sukalu 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.

¶122

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.

¶123

Sd- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

¶124

ved

Sahil Sahu @ Tingu @ Sukalu Sahu v. State of Chhattisgarh

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Sahil Sahu @ Tingu @ Sukalu Sahu v. State of Chhattisgarh

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