Vivek Kurre @ Poklin vs State Of Chhattisgarh on 10 April, 2026

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    Chattisgarh High Court

    Vivek Kurre @ Poklin vs State Of Chhattisgarh on 10 April, 2026

    Author: Ramesh Sinha

    Bench: Ramesh Sinha

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                                                                              2026:CGHC:16596-DB
                                                                                              NAFR
    
                                      HIGH COURT OF CHHATTISGARH AT BILASPUR
    
                                                        CRA No. 112 of 2024
    
                          1 - Vivek Kurre @ Poklin S/o Uttam Kurre, Aged About 19 Years And 6
                          Months, R/o Dharashiv, Chowki Lawan, P.S. Kasdol, District :
                          Balodabazar-Bhathapara, Chhattisgarh
                                                                                          ... Appellant
                                                             versus
                          1 - State of Chhattisgarh Through The Station House Officer, Police
                          Station Kasdol, District : Balodabazar-Bhathapara, Chhattisgarh
                                                                                       ... Respondent

    (Cause-title taken from Case Information System)

    For Appellant : Mr. Satya Prakash Verma, Advocate.
    For State : Mr. N.K. Jaiswal, Deputy Govt. Advocate.

    SPONSORED

    Hon’ble Shri Ramesh Sinha, CJ &
    Hon’ble Shri Ravindra Kumar Agrawal, J
    Judgment on Board
    10-04-2026
    Per Ramesh Sinha, Chief Justice

    1. Learned counsel for the State submits that the notice issued to

    victim has been served, however none appears to submit/object the

    appeal/application for suspension of sentence and grant of bail. Though

    the matter was listed for orders on suspension of sentence and grant of

    bail, however, with the consent of parties, the matter is heard finally.

    Digitally signed by
    MOHAMMED
    AADIL KHAN
    Date: 2026.04.14
    11:40:18 +0530
    2

    2. The present appeal under Section 374(2) of the Cr.P.C. has been

    filed by the appellant against the judgment of conviction and order of

    sentence dated 05.01.2024 passed by the learned Additional District

    and Sessions Judge, FTSC (POCSO Act), Balodabazar in Special Case

    (POCSO) No.75/2022, whereby the appellant has been convicted and

    sentenced in the following manner with a direction to run all the jail

    sentences concurrently:-

          Conviction                       Sentence
          U/s 363 of the IPC               R.I. for 5 years and fine of Rs. 1000/-, in
                                           default of payment of fine 3 months
                                           additional R.I.
    
          U/s 366 of the IPC               R.I. for 10 years and fine of Rs. 3000/-,
                                           in default of payment of fine 3 months
                                           additional R.I.
    
    

    U/s 6 of Protection of Children Life Imprisonment (till natural life) and
    from Sexual Offences Act, 2012 fine of Rs.5000/-, in default of payment
    (in short ‘POCSO Act‘) of fine 3 months additional R.I.

    The appellant has also been convicted by the impugned judgment

    for the offence 376(3) of the IPC, however, since he has been convicted

    for the offence under Section 6 of POCSO Act and for the offence under

    Section 6 of POCSO Act he has been sentenced Life Imprisonment (till

    natural life) and fine of Rs.5000/-, in default of payment of fine 3 months

    additional R.I., no separate sentence has been awarded for his

    conviction under Section 376(3) of the IPC.

    3. The case of the prosecution is that, on 29-06-2022 the maternal

    grand-father of the victim PW-3 lodged a missing report to police that

    his grand-daughter is missing since 25-06-2022 and her whereabouts
    3

    could not be traced out despite her search in nearby places and

    relatives house. Police registered FIR Ex.-P/12 against unknown person

    for the offence under Section 363 of the IPC and started investigation.

    During investigation the victim was recovered on 03-08-2022 from the

    possession of the appellant who were found at Village Ankhi, District

    Bharuch, Gujarat and the recovery panchnama Ex.-P/8 and P/9 was

    prepared in presence of the witnesses. The victim was taken to

    Balodabazar and kept at Child Welfare Committee Balodabazar. The

    victim was sent for her medical examination to Community Health

    Center Lawan where PW-7 Doctor Shriya Gidoda examined the victim

    who gave her report Ex.-P/2. While medically examining the victim the

    doctor has not found any external injuries on her body and opined that

    there is exact opinion regarding recent sexual intercourse. Two slides of

    her vaginal slides were prepared, sealed and handed over to police for

    its chemical examination. The underwear of the victim has been seized

    vide seizure memo Ex.-P/3. Spot map Ex.-P/13 was prepared by police

    and Ex.-P/17 was prepared by the Patwari. Statement under Section

    164 of the Cr.P.C. of the victim Ex.-P/11 was recorded. With respect to

    age and date of birth of the victim police seized school register vide

    seizure memo Ex.-P/19 and after retaining its attested true copy

    Ex.-P/20C the original register was returned back to the school.

    According to the school register, the date of birth of the victim is 16-09-

    2009. The progress report card of the primary school of the victim has

    also been seized by police which is Ex.-P/22 and P/23. The appellant

    was arrested on 05-08-2022 and he too was sent for his medical
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    examination to Community Health Center, Lawan where he was

    medically examined by Doctor Guru Govind Verma PW-14. While

    medically examining the appellant the doctor has not noticed any injury

    on his body and gave his report Ex.-P/25 opining that at the time of

    examination he could not find anything upon which he can say that he

    cannot perform sexual intercourse. The underwear of the appellant was

    also seized and sent for its query report to the doctor who forwarded it

    for chemical examination. The motorcycle has been seized vide seizure

    memo Ex.-P/27. The memorandum statement of the appellant Ex.-P/15

    was also recorded. The vaginal slide of the victim, her underwear and

    underwear of the appellant were sent for its chemical examination to

    State FSL, Raipur from where report Ex.-P/37 was received. According

    to the FSL report, no semen or sperm were found on the sent articles.

    Statement of witnesses under Section 161 of Cr.P.C. were recorded and

    after completion of usual investigation, charge-sheet was filed against

    the appellant before the learned trial Court for the offence under Section

    363, 366A, 376 IPC and Section 4 and 6 of the POCSO Act.

    4. The learned trial court framed charge against the appellant for the

    offence under Section 363, 366, 376 IPC and Section 6 of the POCSO.

    The appellant denied the charge and claimed trial.

    5. In order to prove the charge against the appellant, the prosecution

    has examined as many as 15 witnesses. The statement of the appellant

    under Section 313 of CrPC has also been recorded in which he denied

    the circumstances that appears against him, pleaded innocence and

    has submitted that he has been falsely implicated in the offence.
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    6. After appreciation of the oral as well as the documentary evidence

    led by the prosecution, the trial court has convicted and sentenced the

    appellant as mentioned in the earlier part of this judgment. Hence this

    appeal.

    7. Learned counsel for the appellant would submit that the

    prosecution has failed to prove its case beyond reasonable doubt.

    There are material omissions and contradictions in the evidence of

    prosecution witnesses which cannot be made basis to convict the

    appellant for the offence in question. The prosecution could not brought

    on record the cogent material and evidence to prove the age of the

    victim that she was minor and less than 18 years of age on the date of

    the incident. The school register produced by the prosecution has not

    been proved in accordance with law as the author of the school register

    has not been examined and the basis on which the entries have been

    made in the school register have also not been proved. He would

    further submit that the victim was a major girl having love affair with the

    appellant and she on her own will eloped with him and both of them

    were residing at Gujarat. She on her own will engaged in making

    physical relation with the appellant. There is no allegation that while

    traveling from her village upto Gujarat she made any complaint to

    anyone to the persons on the way, even while residing at Gujarat she

    has not made any protest or objection to any person in the vicinity

    where she was residing. Her conduct itself shows that she was a

    consenting party in eloping with the appellant and engaged in making

    consensual physical relation. Therefore, he is entitled for acquittal.
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    8. On the other hand, learned counsel for the state opposes the

    arguments advanced by the learned counsel for the appellant and

    submits the the evidence of prosecution witnesses are fully reliable. The

    age of victim has been proved from school record which is proved by

    PW-10, who is Head Master of the school. The victim was minor on the

    date of the incident, and her consent is immaterial. The evidence of the

    victim need not be required for any corroboration and on the sole

    testimony of the victim, the conviction can be made. Further, from the

    evidence of witnesses, the guilt of appellant has duly been proved.

    Therefore, the impugned judgment of conviction and sentence needs no

    interference.

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

    records carefully.

    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

    and less than 18 years of age or not?

    11. The prosecution has mainly relied upon school register, Ex.-P/20C

    which is sought to be proved by PW-10 who is the Head Master. He

    stated in his evidence that he is the Head Master of the school since

    2010-11. The police has seized the school register with respect to the

    age and date of birth of the victim and after retaining its attested true

    copy the original register was returned back to him. The said school

    register has been seized vide seizure memo Ex.-P/19. As per the school

    register, the date of birth of the victim is recorded as 16-09-2009. He

    also gave the progress report card of the victim which is Ex.-P/22 and
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    its attested true copy is Ex.-P/23. In cross examination, he admitted that

    in the school register Ex.-P/20, there is no mention as to who had taken

    the victim to the school for her admission. There is no mention in the

    school register Ex.-P/20 that the date of birth of the victim is recorded

    on the basis of her birth certificate. He voluntarily stated that before

    admission they had taken birth certificate or adhar card of the children.

    He admitted that they have not obtained Halafnama of the person who

    brought the victim to the school for her admission. He further admitted

    that there is no signature of her parents in the school register.

    From the evidence of this witness though it appears that his

    signature is there in the school register Ex.-P/20C, but there is no

    evidence with respect to the document on the basis of which the date of

    birth of the victim is recorded in the school register.

    12. Admissibility and the evidentiary value of the school register has

    been considered by the Hon’ble Supreme Court in the case of Alamelu

    and Another Vs. State, represented by Inspector of Police, reported

    in 2011 (2) SCC 385, wherein the Supreme Court has observed as

    under in paragraphs 40, and 48 that :

    “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.

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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. [(2006) 5 SCC 584] 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 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.”

    13. 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
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    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, 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.

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    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.”

    14. Further, in case of P. Yuvaprakash Vs. State represented by

    Inspector of Police, reported in 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
    11

    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.
    [2022 (8) SCC 602] 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.”

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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
    [2019] 9 SCR 735]
    that:

    “Clause (i) of Section 94 (2) places the date of birth certificate
    from the school and the matriculation or equivalent certificate
    from the 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
    [(2012) 9 SCR 224], this court, through a three-judge bench, held that the
    burden of proving that someone is a juvenile (or below the prescribed
    age) is upon the person claiming it. Further, in that decision, the court
    indicated the hierarchy of documents that would be accepted in order of
    preference.”

    15. Reverting to the facts of the present case, the victim PW-2 though

    has not stated any date of her birth, but she has stated that she was

    about 15 years of age at the time of the incident. In cross-examination

    she admitted in para 6 that she is having two separate adhar cards and

    in both the adhar cards her date of birth are different. In one adhar card
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    year of her birth is 2001 and in another adhar card year of her birth is

    2006.

    16. PW-1, the mother of the victim has stated in her evidence that she

    did not know the date of birth of her daughter. Though the defence tried

    to abstract the age by putting suggestion about age of the other children

    and age gap between her children, but that may not have any

    determinative evidence as it is only the suggestion.

    17. PW-3 is maternal grand-father of the victim who has also not

    stated anything about her date of birth. Even he has not stated that the

    victim was minor on the date of incident., but has stated that the age of

    the victim is about 16 years.

    18. PW-4 is father of the victim. He too has not disclosed her date of

    birth. In the leading question asked by the prosecution he admitted that

    he disclosed before the police that the date of birth of the victim is 16-

    09-2009 and she was minor at the the time of commission of the

    offence. In cross-examination he denied that his elder son is aged about

    20-21 years and his daughter of second number is aged about 16 years

    and his younger daughter is aged about 14 years. He further stated that

    there is age gap of 2-3 years in each children. He too has admitted that

    the victim is having two separate adhar cards, but he denied that in both

    the adhar cards her date of birth is different. The victim was got

    admitted in the school by her maternal uncle, but he did not know as to

    what date of birth was recorded by him. He also admitted that birth of

    the victim was not got recorded in the Kotwari register.
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    19. From the aforesaid evidence the prosecution could not be able to

    establish the date of birth of the victim or her age. There is no birth

    certificate or any ossification test report of the victim. The school

    register has not been proved in accordance with law. The parents of the

    victim could not establish her date of birth and further that the victim and

    father admitted that she is having two different adhar cards and as per

    the evidence of the victim, in both the adhar cards there was different

    date of birth. Though both the adhar cards have not been filed by the

    prosecution, but admission by the victim herself is sufficient to raise

    suspicion over the correct date of birth.

    20. In view of the evidence produced by the prosecution and the

    aforesaid law laid down by the Hon’ble Supreme Court, we are of the

    opinion that the prosecution could not establish 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.

    21. So far as offence of kidnapping and rape are concerned, we again

    examine the evidence produced by the prosecution.

    22. PW-2 is victim who stated in her evidence that two month back

    she had gone to Gujarat along with the appellant. When she was at

    Puna, she met with the appellant through Instagram. When she came

    back to her house on 12th June, she made a telephonic call to the

    appellant and she called him to take her back. The appellant came to

    the village on 25th June and she accompanied him and had gone by his

    motorcycle. He took her to Village Boda and kept in the in-laws house of

    his friend. On the next day he took her to Durg by bus and kept her at
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    his maternal uncle’s house. In the second next day he took her to

    Gujarat. When she stayed at maternal uncle’s house, the appellant

    made physical relation with her. She further stated that the appellant

    performed marriage with her in a temple at Gujarat and thereafter kept

    her as his wife and made physical relation with her. On 2 nd of August

    police came there and took her back. In cross-examination she admitted

    that when she had gone to Puna along with her parents to earn their

    livelihood the appellant was also came there to earn his livelihood.

    During that period she acquainted with the appellant and he used to

    come to her house. She was having love affair with the appellant and

    had talk with each other through their mobile phone. When summer

    vacation were over her father left her to Village Kohroud, but she

    connected with the appellant through mobile phone. She admitted that

    the appellant performed marriage with her in a temple at Gujarat. She

    also admitted that from Gujarat she made a telephonic call to her

    mother and asked her not to search her and she is living happily and

    also asked her not to lodge any report.

    From the evidence of the victim it clearly established that she on

    her own will eloped with the appellant and both of them had gone to

    Gujarat where the appellant performed marriage with her in a temple

    and started residing as husband and wife and engaged in making

    consensual physical relation. It is not that the appellant kidnapped the

    victim, but the victim herself called him and accompanied him upto

    Gujarat. There is no evidence that she made any protest or any

    objection when she was being taken by the appellant upto Gujarat.
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    23. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC

    942, the Hon’ble Supreme Court has held in Para 9 and Para 10 of its

    judgment that:-

    “9. It must, however, be borne in mind that there is a
    distinction between “taking” and allowing a minor to
    accompany a person. The two expressions are not
    synonymous though we would like to guard ourselves from
    laying down that in no conceivable circumstance can the
    two be regarded as meaning the same thing for the
    purposes of of the Indian Penal Code. We would limit
    ourselves to a case like the present where the minor
    alleged to have been taken by the accused person left her
    father’s protection knowing and having capacity to know the
    full import of what she was doing voluntarily joins the
    accused person. In such a case we do not think that the
    accused can be said to have taken her away from the
    keeping of her lawful guardian. Something more has to be
    shown in a case of this kind and that is some kind of
    inducement held out by the accused person or an active
    participation by him in the formation of the intention of the
    minor to leave the house of the guardian.

    10. It would, however, be sufficient if the prosecution
    establishes that though immediately prior to the minor
    leaving the father’s protection no active part was played by
    the accused, he had at some earlier stage solicited or
    persuaded the minor to do so. In our, opinion if evidence to
    establish one of those things is lacking it would not be
    legitimate to infer that the accused is guilty of taking the
    minor out of the keeping of the lawful guardian merely
    because after she has actually left her guardian’s house or
    a house where her guardian had kept her, joined the
    accused and the accused helped her in her design not to
    return to her guardian’s house by taking her along with him
    from place to place. No doubt, the part played by the
    accused could be regarded as facilitating the fulfillment of
    the intention of the girl. That part, in our opinion, falls short
    of an inducement to the minor to slip out of the keeping of
    her lawful guardian and is, therefore, not tantamount to
    “taking”.

    24. 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.

    17

    25. From the evidence of the victim it also reflects that her evidence

    does not inspire confidence of the Court that the appellant kidnapped

    her and committed rape upon her. The quality of her evidence is not

    sufficient to put up under the definition of sterling witness as has been

    held by the Hon’ble Supreme Court in the case of Santosh Prasad @

    Santosh Kumar v. State of Bihar, 2020 (3) SCC 443, wherein para

    5.4.2 it has been held that:

    “5.4.2 In the case of Rai Sandeep alias Deepu (supra), this
    Court had an occasion to consider who can be said to be a
    “sterling witness”. In paragraph 22, it is bserved and held as
    under:

    “22 In our considered opinion, the “sterling
    witness” should be of a very high quality and
    calibre whose version should, therefore, be
    unassailable. The court considering the version of
    such witness should be in a position to accept it
    for its face value without any hesitation. To test the
    quality of such a witness, the status of the witness
    would be immaterial and what would be relevant is
    the truthfulness of the statement made by such a
    witness. What would be more relevant would be
    the consistency of the statement right from the
    starting point till the end, namely, at the time when
    the witness makes the initial statement and
    ultimately before the court. It should be natural
    and consistent with the case of the prosecution
    qua the accused. There should not be any
    prevarication in the version of such a witness. The
    witness should be in a position to withstand the
    cross-examination of any length and howsoever
    strenuous it may be and under no circumstance
    should give room for any doubt as to the factum of
    the occurrence, the persons involved, as well as
    18

    the sequence of it. Such a version should have
    co-relation with each and every one of other
    supporting material such as the recoveries made,
    the weapons used, the manner of offence
    committed, the scientific evidence and the expert
    opinion. The said version should consistently
    match with the version of every other witness. It
    can even be stated that it should be akin to the
    test applied in the case of circumstantial evidence
    where there should not be any missing link in the
    chain of circumstances to hold the accused guilty
    of the offence alleged against him. Only if the
    version of such a witness qualifies the above test
    as well as all other such similar tests to be
    applied, can it be held that such a witness can be
    called as a “sterling witness” whose version can
    be accepted by the court without any
    corroboration and based on which the guilty can
    be punished. To be more precise, the version of
    the said witness on the core spectrum of the crime
    should remain intact while all other attendant
    materials, namely, oral, documentary and material
    objects should match the said version in material
    particulars in order to enable the court trying the
    offence to rely on the core version to sieve the
    other supporting materials for holding the offender
    guilty of the charge alleged.”

    26. In Dola @ Dolagobinda Pradhan & Another Vs. State of

    Odisha, 2018(18)SCC 695, in paragraph 9 it was observed by Hon’ble

    Supreme Court as under :

    “9. However, as is also evident from the observations above, such

    reliance may be placed only if the testimony of the prosecutrix

    appears to be worthy of credence. In this regard, it is also relevant to
    19

    note the following observations of this Court in Raju v. State of M.PA,

    which read thus: (SCC p. 141. paras 10-11)

    “10. The aforesaid judgments lay down the basic principle that

    ordinarily the evidence of a prosecutrix should not be

    suspected and should be believed, more so as her statement

    has to be evaluated on a par with that of an injured witness

    and if the evidence is reliable, no corroboration is necessary.

    Undoubtedly, the aforesaid observations must carry the

    greatest weight and we respectfully agree with them, but at

    the same time they cannot be universally and mechanically

    applied to the facts of every case of sexual assault which

    comes before the court.

    11. It cannot be lost sight of that rape causes the greatest

    distress and humiliation to the victim but at the same time a

    false allegation of rape can cause equal distress, humiliation

    and damage to the accused as well. The accused must also

    be protected against the possibility of false implication,

    particularly where a large number of accused are involved. It

    must, further, be borne in mind that the broad principle is that

    an injured witness was present at the time when the incident

    happened and that ordinarily such a witness would not tell a

    lie as to the actual assailants, but there is no presumption or

    any basis for assuming that the statement of such a witness is

    always correct or without any embellishment or exaggeration.”

    27. In the further evidence laid by the prosecution, PW-1 mother of

    the victim has stated that the victim was residing with her parents in the

    village because she, her husband and her son usually gone to earn
    20

    their livelihood at Puna. She was informed by her father that the victim

    is missing. Since there was a call in their mobile phone earlier they

    suspected and they started searching the victim. They came to know

    from the villagers that the appellant was also present in the village 2-3

    days back. Thereafter, they lodged the report and the victim was

    recovered after 20-25 days from Gujarat from the possession of the

    appellant. When the victim came back she informed the incident that

    she was kidnapped and subjected to rape by the appellant. In cross-

    examination she admitted that when they had gone to Puna to earn

    their livelihood the appellant was also there to earn his livelihood. She

    further admitted that her Village Kohroud and village of appellant

    Dharashiv is situated nearby. She denied the suggestion that the

    appellant and her daughter were known to each other. She also denied

    any love affair between them. She admitted that her daughter had gone

    to Gujarat along with the appellant. She further admitted that when the

    victim left her house, she made a telephonic call to her and asked to

    withdraw the police complaint.

    The evidence of her mother is contrary to the evidence of the

    victim. When her mother denied about the love affair and relation with

    the appellant, whereas, the victim admitted that she was having love

    affair with the appellant and she eloped with the appellant and both of

    them performed marriage and resided together as husband and wife at

    Gujarat.

    21

    28. PW-3, maternal grand-father of the victim has not stated any

    specific about the offence of kidnapping and rape by the appellant.

    29. PW-4, the father of the victim has stated that at the time of

    incident he had gone to Pune to earn his livelihood and his father-in-law

    informed about the incident about missing of the victim. When she could

    not be found his father-in-law lodged missing report. The villagers raised

    suspicion upon the appellant and then he had gone to father of the

    appellant at Kolhapur and asked about their whereabouts, but his father

    also shown his ignorance. On 2 nd August the victim was found at

    Badodara, Gujarat and thereafter she was taken back by him with the

    help of police persons. When leading question was asked he admitted

    that the victim informed him that the appellant took her to Durg by bus

    and in the night he made physical relation with her, thereafter, he took

    her to Gujarat by train. He also admitted that the victim has informed

    him that the appellant performed marriage with her at Gujarat and made

    physical relation with her. In cross-examination he admitted that the

    victim has not informed him as to with whom she eloped.

    30. PW-6 is the maternal grand-mother of the victim and she is only

    the witness of her missing from the house. She is not a witness of her

    kidnapping or rape.

    31. PW-7 Doctor Shriya Gidoda who medically examined the victim

    has not found any external injury on her body and opined that no

    definite opinion can be given regarding recent sexual intercourse.

    Further, in the FSL report Ex.-P/37 no semen and sperm were found on
    22

    the vaginal swab of the victim and from scientific evidence also no

    offence has been found proved against the appellant.

    32. 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 the victim must

    inspire confidence. Even though the testimony of 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 charges

    levelled against the appellant beyond reasonable doubts, which

    prosecution has failed to do in the instant case.

    33. Having considered the entire evidence available on record, we are

    of the view that the prosecution has failed to prove its case beyond

    reasonable doubt and the appellant is entitled for benefit of doubt.

    Accordingly, the appeal filed by the appellant is allowed. The impugned

    judgment of conviction and order of sentence is hereby set aside. The

    appellant is acquitted from all the charges. He is reported to be in jail

    since 05.08.2022. He be released forthwith, if not required in any other

    case.

    23

    34. Keeping in view the provisions of section 481 of BNSS, 2023, the

    appellant is directed to forthwith furnish a personal bond of 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.

    35. The trial court records along with a copy of this judgment be sent

    back immediately to the trial court concerned for compliance and

    necessary action.

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



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