Chattisgarh High Court
Rajendra Kumar Banjare vs State Of Chhattisgarh on 10 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:16597-DB
Digitally signed by
INDRAJEET INDRAJEET SAHU NAFR
SAHU Date: 2026.04.15
10:23:48 +0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 2008 of 2024
1 - Rajendra Kumar Banjare S/o Gaindram Banjare Aged About 25 Years R/o
Ward No. 4, Jaitkham Chowk, Rajpur, O.P. Karhibazaar, P.S. Balodabazar,
District : Balodabazar-Bhathapara, Chhattisgarh.
... Appellant
Versus
1 - State of Chhattisgarh Through P.S.- Balod, District Balod, Chhattisgarh.
... Respondent(s)
(Cause-title taken from Case Information System)
For Appellant : Shri Anchal Kumar Matre, Advocate.
For State : Shri Nitansh Jaiswal, Dy. Govt. Advocate.
Hon’ble Shri Justice Ramesh Sinha, CJ
Hon’ble Shri Justice Ravindra Kumar Agrawal, J
Judgment on Board
10.04.2026
Per, Ramesh Sinha, CJ.
1 Though the matter was listed for orders on application for suspension
of sentence and grant of bail to the appellant, however, despite service
of notice none appears on behalf of victim/complainant, therefore, this
court proceeds to hear the matter finally.
2 The present appeal has been filed against the impugned judgment of
conviction and order of sentence dated 14.10.2024 passed by the
Additional Sessions Judge, FTSC, Protection of Children from Sexual
2
Offences Act (in short POCSO Act) Balod, District Balod, in Special
Criminal Case (POCSO) No.51/2022, whereby the appellant has been
convicted and sentenced as under :
Conviction Under Section Sentence
363 of IPC R.I. for 5 years with fine of Rs. 1000/-, in
default of payment of fine, additional R.I.
for six months.
366 of IPC R.I. for 7 years with fine of Rs. 1000/-, in
default of payment of fine, additional R.I.
for six months.
6 of POCSO Act R.I. for 20 years with fine of Rs. 1000/-,
in default of payment of fine, additional
R.I. for six months.
All the sentences are directed to run concurrently.
3 Brief facts of the case are that, on 15.04.2022 the mother of victim,
PW-3 lodged a missing report to the police that her minor daughter had
gone to village Jamarua in her maternal aunt’s house for some
computer work on 14.04.2022 and she proceeded from their at 5:30
AM on 15.04.2022 but could not reach to her home. Despite search,
her whereabouts could not be traced out and her mobile phone was
found switched off. The police registered an offence under Section 363
IPC against unknown person and registered FIR Ex.P/9. During
investigation, the victim was recovered on 02.05.2022 from the
possession of appellant and recovery Panchnamas Ex.P/1 & P/2 were
prepared in presence of witnesses. She was sent for her medical
examination to District Hospital, Balod from where she was medically
examined by PW-4, Dr. Sonam Netam, who gave her MLC report
Ex.P/14. While medically examining her, no internal or external injuries
were found on the body of victim and doctor opined that according to
3
the her examination sexual intercourse has taken place but for
confirmation two glass slide of vaginal swab were sent for FSL
examination. One underwear was seized from victim vide seizure
memo Ex.P/4. With respect to age and date of birth of victim, the
school register was seized vide Ex.P/8 and after retaining its attested
true copy Article-C, the original register was returned back. According
to school register, the date of birth of victim was 04.02.2007. Spot map
Ex.P/11 was prepared by the police whereas Ex.P/19 by the Patwari.
Middle School Mark sheet and mobile was seized from victim vide
Ex.P/13. The appellant was arrested on 03.05.2022 and he too was
sent for his medical examination to District Hospital Balod where Dr.
Dharam Dhananjay, PW/5 medically examined him and gave his report
Ex. P/16 stating the appellant to be capable to perform sexual
intercourse. His underwear was also seized vide Ex.P/23. The
underwear of victim, vaginal slides and underwear of appellant were
sent for its chemical examination to regional FSL Raipur from were
report Ex.P/29 was received and semen and sperms were found on the
vaginal slide of victim and underwear of appellant whereas, in the
underwear of victim no semen and sperms were found.
4 The statement under Section 161 CrPC of witnesses were recorded.
The statement of victim under Section 164 CrPC was recorded. After
completion of usual investigation, charge sheet was filed against the
appellant for the offence under Sections 363,366,386, 376(2)(n) and
376(3) IPC and Section 4,5(l) and 6 of POCSO Act before the trial
court. The trial Court framed charge against the appellant for the
4
offence under Sections 363,366 and 376 (2)(n) IPC and Section 6 of
POCSO Act. The appellant abjured his guilt and claimed trial.
5 In order to establish charge against the appellant, the prosecution has
examined as many as 10 witnesses. Statement under Section 313
CrPC of the appellant has also been recorded in which he denied the
circumstances appears against him, pleaded innocence and have
submitted that he is innocent and falsely implicated in the offence.
6 After appreciation of oral as well as documentary evidence led by the
prosecution, the trial Court has convicted the appellant and sentenced
him as mentioned in the opening paragraph of this judgment. Hence
this appeal.
7 Learned counsel for the appellant would submit that the prosecution
has failed to prove its case beyond reasonable doubt. There are
material omissions and contradictions in the prosecution witnesses
which cannot be made basis to convict him in the offence in question.
There is no valid document of victim being minor. She was major and
she herself eloped with the appellant as she was having love affair with
the appellant. The victim travelled up to Pune and during travel up to
Pune she did not raise alarm or any complaint to fellow passengers
either in Bus or in Train. Even at Pune she has not made any complaint
to the persons of vicinity and resided with the appellant for 19-20 days.
The victim on her own will engaged in making physical relation with
him. No injury was found on her body. It is only under the pressure of
her parents, she made allegation against the appellant. The conduct of
victim itself shows that she was a consenting party and eloped with the
appellant on her own will free will and engaged in making consensual
5
physical relation which does not constitute offence either kidnapping or
rape. Therefore, the appellant is entitled for acquittal.
8 On the other hand, learned counsel for the State opposes the
submissions made by the counsel for the appellant and would submit
that prosecution has proved its case beyond reasonable doubt, but for
minor omissions or contradictions, the evidence of prosecution
witnesses are sufficient and reliable to hold conviction of the appellant
for the alleged offence. The victim was a helpless girl and she was
taken by the appellant to Pune and made physical relation against her
will and consent which thus constitute the offence of kidnapping and
rape. Had she been a consenting party, she would not have lodged
report against the appellant. The victim was sexually exploited by the
appellant for which he has rightly been convicted. Absence of injury on
the body of victim does not absolve the appellant from his liability or
does not make the prosecution case doubtful. There are sufficient and
overwhelming evidence against the appellant that he committed the
offence and the trial court has rightly convicted the appellant which
needs no interference.
9 We have heard the counsel for the parties and perused the records of
the trial court.
10 The first and foremost question arises for consideration would be the
age of victim as to whether she was minor on the date of incident or
not?
11 The prosecution has mainly relied upon school register which is sought
to be proved by P.W-2 who is Teacher of the School. She has stated in
her evidence that she is posted as Assistant Teacher in the School and
6
working as incharge Head Mistress. The police seized school register
with respect to date of birth of victim vide Ex.P/8. She has brought the
original register with her, according to which the date of birth of victim is
04.02.2007.
In cross examination, though she denied that the date of birth of
victim recorded in the register is not in her handwriting, but she admits
that the basis on which the date of birth of victim is recorded in school
register have not been mentioned in it. She also admits that she did not
know who took the victim to school for admission. She also did not
know as to whether the parents of children admits them after reducing
or adding her age. She further admits that along with register Article-A,
there is no document annexed with it with respect to date of birth of
victim.
From the evidence of this witness, though she claimed to be the
author of school register, but the basis on which the date of birth of
victim is recorded have not been brought on record. Another piece of
evidence which the prosecution brought on record is the progress
report card of Middle School of victim.
12 In the matter of Alamelu and Another Vs. State, represented by
Inspector of Police, 2011 (2) SCC 385, which is in respect of
admissibility of school records of a person, the Hon’ble Supreme Court
has held that the transfer certificate which is issued by government
school and is duly signed by the headmaster would be admissible in
evidence under Section 35 of the Evidence Act 1872. However, the
admissibility of such a document would be of not much evidentiary
value to prove the age of the victim in the absence of any material on
7
the basis of which the age was recorded. The Hon’ble Supreme court
held that the date of birth mentioned in the transfer certificate would
have no evidentiary value unless the person who made the entry or
who gave the date of birth is examined.
13 In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra),
the Supreme Court has observed as under:
“40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the
girl’s date of birth was 15th June, 1977. Therefore, even according to
the aforesaid certificate, she would be above 16 years of age (16
years 1 month and 16 days) on the date of the alleged incident, i.e.,
31st July, 1993. The transfer certificate has been issued by a
Government School and has been duly signed by the Headmaster.
Therefore, it would be admissible in evidence under Section 35 of the
Indian Evidence Act. However, the admissibility of such a document
would be of not much evidentiary value to prove the age of the girl in
the absence of the material on the basis of which the age was
recorded. The date of birth mentioned in the transfer certificate would
have no evidentiary value unless the person, who made the entry or
who gave the date of birth is examined.
42. Considering the manner in which the facts recorded in a document
may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand
Purohit1, observed as follows:-
“The date of birth mentioned in the scholars’ register has no
evidentiary value unless the person who made the entry or who gave
the date of birth is examined….Merely because the documents Exs. 8,
9, 10, 11, and 12 were proved, it does not mean that the contents of
documents were also proved. Mere proof of the documents Exs. 8, 9,
10, 11 and 12 would not tantamount to proof of all the contents or the
correctness of date of birth stated in the documents. Since the truth of
the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash
Joshi was in issue, mere proof of the documents as produced by the
aforesaid two witnesses does not furnish evidence of the truth of the
facts or contents of the documents. The truth or otherwise of the facts
in issue, namely, the date of birth of the two candidates as mentioned
in the documents could be proved by admissible evidence i.e. by the
evidence of those persons who could vouchsafe for the truth of the
facts in issue. No evidence of any such kind was produced by the
respondent to prove the truth of the facts, namely, the date of birth of
Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the
dates of birth as mentioned in the aforesaid documents 1988 (Supp)
SCC 604 have no probative value and the dates of birth as mentioned
therein could not be accepted.”
43. The same proposition of law is reiterated by this Court in the case
of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court
observed as follows:-
8
“The legal position is not in dispute that mere production and marking
of a document as exhibit by the court cannot be held to be a due proof
of its contents. Its execution has to be proved by admissible evidence,
that is, by the “evidence of those persons who can vouchsafe for the
truth of the facts in issue”.”
44. In our opinion, the aforesaid burden of proof has not been
discharged by the prosecution. The father says nothing about the
transfer certificate in his evidence. The Headmaster has not been
examined at all. Therefore, the entry in the transfer certificate can not
be relied upon to definitely fix the age of the girl.
48. We may further notice that even with reference to Section 35 of
the Indian Evidence Act, a public document has to be tested by
applying the same standard in civil as well as criminal proceedings. In
this context, it would be appropriate to notice the observations made
by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4
held as follows:-
“The age of a person as recorded in the school register or otherwise
may be used for various purposes, namely, for obtaining admission;
for obtaining an appointment; for contesting election; registration of
marriage; obtaining a separate unit under the ceiling laws; and even
for the purpose of litigating before a civil forum e.g. necessity of being
represented in a court of law by a guardian or where a suit is filed on
the ground that the plaintiff being a minor he was not appropriately
represented therein or any transaction made on his behalf was void as
he was a minor. A court of law for the purpose of determining the age
of a (2006) 5 SCC 584 party to the lis, having regard to the provisions
of Section 35 of the Evidence Act will have to apply the same
standard. No different standard can be applied in case of an accused
as in a case of abduction or rape, or similar offence where the victim
or the prosecutrix although might have consented with the accused, if
on the basis of the entries made in the register maintained by the
school, a judgment of conviction is recorded, the accused would be
deprived of his constitutional right under Article 21 of the Constitution,
as in that case the accused may unjustly be convicted.”
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 XXXX
33.3. That when a claim for juvenility is raised, the burden is on the
person raising the claim to satisfy the Court to discharge the initial
burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii),
and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-
9
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 evidence scrutinised and accepted only if worthy of
such acceptance.
33.6. That it is neither feasible nor desirable to lay down an abstract
formula to determine the age of a person. It has to be on the basis of
the material on record and on appreciation of evidence adduced by the
parties in each case.
33.7 This Court has observed that a hypertechnical approach should
not be adopted when evidence is adduced on behalf of the accused in
support of the plea that he was a juvenile.
33.8. If two views are possible on the same evidence, the court should
lean in favour of holding the accused to be a juvenile in borderline
cases. This is in order to ensure that the benefit of the JJ Act, 2015 is
made applicable to the juvenile in conflict with law. At the same time,
the Court should ensure that the JJ Act, 2015 is not misused by
persons to escape punishment after having committed serious
offences.
33.9. That when the determination of age is on the basis of evidence
such as school records, it is necessary that the same would have to be
considered as per Section 35 of the Indian Evidence Act, inasmuch as
any public or official document maintained in the discharge of official
duty would have greater credibility than private documents.
33.10. Any document which is in consonance with public documents,
such as matriculation certificate, could be accepted by the Court or the
JJ Board provided such public document is credible and authentic as
per the provisions of the Indian Evidence Act viz., section 35 and other
provisions.
33.11. Ossification Test cannot be the sole criterion for age
determination and a mechanical view regarding the age of a person
cannot be adopted solely on the basis of medical opinion by
radiological examination. Such evidence is not conclusive evidence
but only a very useful guiding factor to be considered in the absence of
documents mentioned in Section 94(2) of the JJ Act, 2015.”
10
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. Furthermore, DW-3, the
concerned Revenue Official (Deputy Tahsildar) had stated on oath that
the records for the year 1997 in respect to the births and deaths were
missing. Since it did not answer to the description of any class of
documents mentioned in Section 94(2)(i) as it was a mere transfer
certificate, Ex C-1 could not have been relied upon to hold that M was
below 18 years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar
Pradesh & Ors. this court outlined the procedure to be followed in
cases where age determination is required. The court was dealing with
Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari
materia) with Section 94 of the JJ Act, and held as follows:
“20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be
followed in determination of age. The juvenility of a person in conflict
with law had to be decided prima facie on the basis of physical
appearance, or documents, if available. But an inquiry into the
determination of age by the Court or the JJ Board was by seeking
evidence by obtaining: (i) the matriculation or equivalent certificates, if
available and in the absence whereof; (ii) the date of birth certificate
from the school (other than a play school) first attended; and in the
absence whereof; (iii) the birth certificate given by a corporation or a
municipal authority or a panchayat. Only in the absence of either (i), (ii)
and (iii) above, the medical opinion could be sought from a duly
constituted Medical Board to declare the age of the juvenile or child. It
was also provided that while determination was being made, benefit
could be given to the child or juvenile by considering the age on lower
side within the margin of one year.”
16. Speaking about provisions of the Juvenile Justice Act, especially
the various options in Section 94 (2) of the JJ Act, this court held in
Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:
“Clause (i) of Section 94 (2) places the date of birth certificate from the
school and the matriculation or equivalent certificate from the 2021
11(12) SCR 502 [2019] 9 SCR 735 concerned examination board in the
same category (namely (i) above). In the absence thereof category (ii)
provides for obtaining the birth certificate of the corporation, municipal
authority or panchayat. It is only in the absence of (i) and (ii) that age
determination by means of medical analysis is provided. Section 94(2)
(a)(i) indicates a significant change over the provisions which were
contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of
2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate
was given precedence and it was only in the event of the certificate not
being available that the date of birth certificate from the school first
attended, could be obtained. In Section 94(2)(i) both the date of birth
certificate from the school as well as the matriculation or equivalent
certificate are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal,
this court, through a three-judge bench, held that the burden of proving
that someone is a juvenile (or below the prescribed age) is upon the
person claiming it. Further, in that decision, the court indicated the
hierarchy of documents that would be accepted in order of
preference.”
16 Reverting to the facts of the present case, the victim PW-1 have stated
that her date of birth is 04.02.2007 and she is presently studying at
Class-10th. In para 14 of her cross examination, she admits that she
disclosed her date of birth on the basis of her school mark sheet.
17 PW-3 is the mother of victim, who too have stated that date of birth of
victim is 04.02.2007 and she is her elder daughter. She proved her
progress report card of Middle School, Article-B. She stated in her
cross examination that date of birth of victim got recorded with Kotwar
by the grandfather of victim, however, no Kotwari register has been
produced by the prosecution to substantiate the fact that date of birth
of victim was recorded with Kotwari register.
18 There is no any other evidence like Birth Certificate or ossification test
report of victim produced by the prosecution. When the entries in the
school register have not been proved in accordance with law, the entry
of her date of birth based on school register also cannot be said that it
has been duly proved by the prosecution. The victim has stated that
12
she disclosed her date of birth on the basis of school record and the
school Teacher PW-2 did not disclose the basis on which the entries
were made, it cannot be said that prosecution has proved the age of
victim by leading cogent evidence that victim was minor and less than
18 years of age on the date of incident.
18.1 So far as the allegation of kidnapping and rape is concerned, P.W-1,
the victim, have stated in her evidence that her parent as also the
parents of appellant were working at a Brick kiln at village Mujgahan.
Since her mother fell ill, she went there and at that time the appellant
proposed her that he wanted to marry her. Despite her refusal he did
not stop his act and started calling and messaging her in her mobile.
Though she initially protested, however on 15.04.2022 when went to
her maternal aunt’s house for compute work, a day before that day, the
appellant called her at Jhalmala Chowk. On 15.04.2022 she went
Jhalmala Chowk without informing anyone. The appellant took her to
Durg by Bus. The bicycle which she was having was sold by him at
Durg Bus Stand for the consideration of Rs.800/-. Thereafter, the
appellant took her to Pune (M.H.) by Train and they started residing at
Wakad Chowk at Pune where the uncle of appellant was already
working. His uncle employed the appellant at the place where he was
working and provided a house in which they started residing. They
stayed alongwith appellant for about 19-20 days and in between that
time the appellant made 2-3 times physical relation with her. She had a
telephonic talk to her uncle by the mobile phone of appellant and called
him. She also share the address where they were residing. During this
period, the wife of appellant also called him for residing together. On
13
01.05.2022 they proceeded from Pune for Bhatapara. From Bhatapara
when they were going to village Rajpur, Baloda Bazar and as and
when they reached Nipaniya, they were caught by the police persons.
In cross examination, she states that she disclosed before the
police about the act of appellant in the village that he was stalking and
proposed her for marriage but she refused, as also the fact of threaten
given by appellant to her, however, if it is not in her police statement
Ex.D/1, she could not tell the reason. She admits that she alone went
to Jhalmala by her bicycle from her maternal aunt’s house. She had
her mobile phone with her. She did not inform to her family members.
She admits that while traveling from Durg to Pune she did not make
any complaint to fellow passenger in Train. She stayed and worked
with appellant in a plant at Pune, but she did not disclose anyone at
Pune while residing with appellant at Pune for about 19-20 days.
19 From the evidence of this witness, it is quite clear that the victim was in
love affair with the appellant. She on her own will left her house;
accompanied with the appellant and went to Pune where they stayed
for about 19-20 days and made consensual physical relation. There is
no evidence of the victim that at any point of time she resisted or
protested to go with the appellant or tried to flee from the clutches of
the appellant. Though she states that she refused for physical relation,
but that itself is not sufficient in view of fact that she herself on her own
will eloped with him and resided with appellant at Pune for 19-20 days.
There is no sign of any protest or struggle on her body. Even the doctor
who medically examined her did not find any external or internal
injuries though her hymen was found ruptured, however, when the
14
victim found major and herself eloped with appellant, the physical
relation made by the appellant is found to be consensual in nature.
20 All these evidences would clearly demonstrate that prosecution has
failed to prove its case beyond reasonable doubt against the appellant.
Further, the act of the victim dragged us to draw a conclusion that
victim was consenting party in eloping and making physical relation
with the appellant. The victim herself eloped with the appellant and
stayed with him for about 19-20 days and engaged in making
consensual physical relation with him without any protest or resistance.
When the age of the victim has not been proved by the prosecution
that she was minor and the fact that she herself eloped with the
appellant, on her own will, no offence of kidnapping and rape by the
appellant is made out.
21 In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942,
the Hon’ble Supreme Court has held that: –
“9. It must however, be borne in mind that there is a distinction
between “taking” and allowing a minor to accompany a person. The
two expressions are not synonymous though we would like to guard
ourselves from laying down that in no conceivable circumstances can
the two be regarded as meaning the same thing for the purposes of
Section 361 of the Indian Penal Code. We would limit ourselves to a
case like the present where the minor alleged to have been taken by
the accused person left her father’s protection knowing and having
capacity to know the full import of what she was doing voluntarily joins
the accused person. In such a case we do not think that the accused
can be said to have taken her away from the keeping of her lawful
guardian. Something more has to be shown in a case of this kind and
that is some kind of inducement held out by the accused person or an
active participation by him in the formation of the intention of the minor
to leave the house of the guardian.
10. It would, however, be sufficient if the prosecution establishes that
though immediately prior to the minor leaving the father’s protection no
active part was played by the accused, he had at some earlier stage
solicited or persuaded the minor to do so. In our opinion, if evidence
to establish one of those things is lacking it would not be legitimate to
infer that the accused is guilty of taking the minor out of the keeping of
the lawful guardian merely because after she has actually left her
guardian’s house or a house where her guardian had kept her, joined
15the accused and the accused helped her in her design not to return to
her guardian’s house by taking her along with him from place to place.
No doubt, the part played by the accused could be regarded as
facilitating the fulfilment of the intention of the girl. That part, in our
opinion, falls short of an inducement to the minor to slip out of the
keeping of her lawful guardian and is, therefore, not tantamount to
“taking”.”
22 Recently, the Hon’ble Supreme Court in case of Tilku @ Tilak Singh
Vs. State of Uttarakhand has also relied upon the aforesaid judgment
of S. Varadarajan (Supra) in its judgment dated 06.02.2025 passed in
Criminal Appeal No.183 of 2014.
23 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 reasonable doubt, which
the prosecution has failed to do in the instant case.
24 Considering the entire evidence available on record, the evidence with
regard to age and conduct of the victim, we are of the opinion that the
prosecution has failed to prove that victim was less than 18 years of
age at the time of the incident. Further, she was a consenting party with
the appellant in making physical relation with him. Therefore, in the
above facts and circumstances of the case, no any offence as alleged
is made out against the appellant.
25 For the foregoing reasons, the appeal is allowed. The impugned
judgment of conviction and sentence is hereby set aside. The appellant
stands acquitted from all the charges. The appellant is reported to be
16
in jail since 03.05.2022. He be released forthwith if not required in any
other case.
26 Keeping in view the provisions of Section 481 of B.N.S.S. 2023, the
appellant is directed to forthwith furnish a personal bond of the sum of
Rs. 25,000/- with one reliable surety in the like amount before the court
concerned which shall be effective for a period of six months along with
an undertaking that in the event of filing of special leave petition
against the instant judgment or for grant of leave, the aforesaid
appellant on receipt of notice thereof shall appear before the Hon’ble
Supreme Court.
27 The trial court records along with a copy of this judgment be sent back
to the trial court concerned for compliance and necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
inder
